Not long after he retired, former United States Supreme Court Justice John Paul Stevens was in the news for writing a book review, followed by an appearance on 60 Minutes. The attention on Justice Stevens and his changing views on capital punishment remind me of Steve Earle’s haunting song, “Ellis Unit One.”
In several appearances after he retired, Justice Stevens described how he changed his mind about the death penalty. Over time, he came to conclude, as the New York Times summarized, that the Supreme Court has “created a system of capital punishment that is shot through with racism, skewed toward conviction, infected with politics and tinged with hysteria.”
Justice Stevens was on the Supreme Court in 1976 when the Court, in effect, established the modern death penalty. In 1972, the Court held that the nation’s death penalty laws violated the constitution, but in 1976 the Court upheld new death penalty laws. In those cases and in cases throughout the decades, Justice Stevens voted to uphold the constitutionality of the death penalty. But in his final few years on the Supreme Court, he came to conclude that the death penalty system was unfair and constituted a pointless taking of life that does not serve society.
At the time, Justice Stevens joined two other U.S. Supreme Court Justices who voted to uphold the death penalty in 1976 but by the end of their careers had changed their minds: Justices Harry Blackmun and Justice Lewis Powell. More often than one might guess, over time, some who advocated for and implemented the nation’s death penalty — judges, prosecutors, police officers, wardens, legislators, executioners — eventually conclude that the punishment is unfair, racist, useless, risks executing innocent defendants, and that society would be better off replacing the death penalty with life in prison.
The news about Justice Stevens reminded me of a song that tells one of these stories, Steve Earle’s “Ellis Unit One,” which appeared on the soundtrack for the 1995 movie Dead Man Walking and is one of the most moving songs ever written about the death penalty. The song is told from the perspective of a prison guard. The guard describes getting transferred to death row at Ellis Unit One, the Texas prison unit that housed condemned prisoners at the time the song was written.
The narrator does not say what he thinks about the death penalty. Steve Earle’s genius here is to understand that the description is enough.
Well, I’ve seen ‘em fight like lions, boys
I’ve seen ’em go like lambs
And I’ve helped to drag ‘em when they could not stand.
And I’ve heard their mamas cryin’ when they heard that big door slam
And I’ve seen the victim’s family holdin’ hands.
Many of the judges who have condemned people to death may have had dreams similar to the one described in “Ellis Unit One”: “Last night I dreamed that I woke up with straps across my chest / And something cold and black pullin’ through my lungs.” Having such a heavy responsibility may haunt one’s dreams, even if the judge is confident in the choice made. Similar dreadful dreams may have led Justices Stevens, Blackmun, and Powell to renounce their earlier decisions.
When we read about a horrible crime and have the normal initial human reaction to want the perpetrator killed, we often ignore the death penalty system’s toll on the many people it touches, including the guards, the wardens, the judges, the lawyers, the families of the victim, and the families of the condemned. Whether or not we agree with Justice Stevens, one must acknowledge the costs caused by the continuing use of capital punishment. While Justice Stevens’s change of heart reveals the legal and practical issues surrounding the death penalty, Steve Earle’s poetic song exposes some of the human toll.
Bonus Song Information: The reference to “the Walls” in the song is to the nickname for the Huntsville Unit in Huntsville, Texas, about twelve miles away from Ellis Unit. It is where the Texas inmates are executed.
Bonus Alternate Versions Information: In addition to the soundtrack version of the song, Earle has another outstanding version that is a demo with The Fairfield Four providing background singing. The Fairfield Four version appeared on the EP Johnny Too Bad
One of Cleveland’s favorite son performers, Michael Stanley, also recorded a version of the song. As a former Clevelander I have the required fondness for MSB, but his version is inferior to Earle’s. As his version progresses, he adds instruments and background singers to the point I thought he was going to break into a full-blown uplifting rock song with a last-minute stay of execution. Still, Stanley has good taste in choosing to cover such a great song, and perhaps it merely suffers by comparison to Steve Earle’s excellent versions. And some may prefer Stanley’s voice and his cover. Leave a comment to let me know what version you like.
Has anyone ever started talking about a Supreme Court Justice and ended up talking about Michael Stanley?
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The death penalty may be resolved in part over its important but banal issues like race prejudice and monetary costs, but until society can agree with some precision on what is “Good and Right” or “Bad and Wrong” this issue can never be treated correctly.
Alas, with most people’s idea of morality anchored in crude traditional belief systems, this will be a long way off.
Indeed, one warden/former executioner to talks about his dreams (being visited at bedside by those he has executed) is Ron McAndrew. Video of him is here http://www.palmbeachpost.com/search/content/local_news/slideshows/deathrow/wardenvideo.html
I remember waiting for the DMW album to come out (I was an extra in the film and a 1998 concert with the artists from the album at the Shrine Auditorium was conceived of and planned at my house). This song brought me to tears the first time I heard it…
Thanks for writing this post!
Thanks for the link, that’s a very relevant interview that connects to the song and to Justice Stevens.
Martin, that’s an interesting point. I wonder if, under that standard, how often any issue is ever treated “correctly” throughout history. It is true that various states and the large number of countries that do not have the death penalty have abolished it for a number of different reasons instead of just one, but that may be because the issue is so complex and emotional. Maybe?
I hadn’t thought carefully about the motivations used by other states for abolishing the death penalty. I need to. I had only meant to claim that death penalty discussions usually veer far wide of the intractable ideas like “good” and “bad” because it is too difficult for everyone to agree on these concepts. More troubling, many belief systems shelter people from their own curiosities about ideas like “good” or “bad” by providing strong guidance that, in my opinion only, is not very useful or meaningful. Any cultural traditions that dissuade folks from thinking about these ideas limit the level of the culture’s enlightenment (happiness and caring for one another). The death penalty discussions I’ve heard, certainly that by Justice Stevens, or even the artistic emotions of the musicians in the songs on the blog, thus lack substance.
That other states find the consensus you mentioned could be for important but uninteresting reasons such as cost and fairness. I, too,find such mundane concerns compelling enough for wish the death penalty away, but a far more important step in evolution of societies would be to face the more profound questions about the ethics that should underly those decisions.
Ironically, and in a perfectly adjudicated world (fair, low cost executions), the consensus on the death penalty may not be important to human enlightenment. Far more important are issues that involve coordinating a this global species, humans, to consider posterity many generations separate: global warming. How about ideas like immigration or social program funding? All require a courageous look at ethics by the common man and woman and a unified electorate.
I am hopeful, but expect nothing in my lifetime.
Thanks Martin for the interesting ideas. I agree with the idea that it would be ideal if all could agree with the underlying ethics of the various social problems. As you note, though, that is not the world we live in, and we have to find ways to move forward until that is done. In spite of that, though, Justice Stevens’s practical day-to-day concerns and the impact that an issue like the death penalty has on the human beings (as in “Ellis Unit One”), are not lacking in substance. These issues affect real human beings every day in the real world. But I see your point in raising the bigger contextual problem.
You’re right. I wish I didn’t say “lacked substance.”