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 and Earle’s collection of random songs from various side projects, Sidetracks. The latter appears to be available as an import, and the former seems hard to find and overpriced for an EP, but you may hear a clip with the Fairfield Four through the “Johnny Too Bad” link. This version is worth seeking out. Finally, a live version of the song is on Steve Earle’s Live At Montreux 2005 album.
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?