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Ambivalence about the Death Penalty: An exchange of emails

Updated: Sep 27, 2019

I initiated the following exchange of emails while listening on the radio to Isabelle Allende interview a well-known radio personality. I am not revealing the name of this person because I have not asked permission to do so, and because I feel certain that when he/she responded to my original email, there was some expectation of privacy. After reading the exchange to friends, however, I decided to “blog” it, since it reveals a core problem for advocates against the death penalty who are often accused of excusing the behavior of the perpetrator, even by those who themselves oppose the death penalty.

Although this dialogue occurred in 2008, it is just as relevant today as it was eleven years ago.

To: (redacted):

As I listen to Isabelle Allende's interview, I am once again reminded of what I like least about you, which is a hypocritical intellectual pretense exemplified by your saying that you oppose the death penalty (thus announcing your membership in the club of intellectual liberals) while, at the same time, pronouncing that "a shot in the arm is too good" for the likes of Robert Alton Harris[1] - the embodiment of virtually all we subject to that final solution, brutally abused as an infant and child, abandoned by his family at age 12, suffering from Fetal Alcohol Syndrome, and conditioned to respond violently to the violent stimuli of juvenile prisons. In short, you oppose the death penalty except for those against whom it is imposed!

If the brutality of the murder is your variable, then let me instruct you: all murder is brutal!

And since you say truth and accuracy are important to you, I just want to remind you that if a shot in the arm was too good for Mr. Harris, then you can sleep soundly knowing it took 16 minutes by the clock to asphyxiate him in the gas chamber by the Bay. Michael A. Kroll, Feb. 3, 2008

To Michael Kroll:

Notwithstanding your hostile opening and the directive from you to instruct me I actually appreciate criticism or being challenged but you are way out of context on this one. The simple, unvarnished intellectual truth here for me, and what I believe I expressed, is that my intellect tells me one thing and my emotions another. I'm terribly sorry Harris went through all that boyhood horror but it does not excuse or mitigate his killing children. It may be barbaric to you but I become viscerally incensed at the notion of child killing. Others have been dreadfully abused and mistreated and have not killed children or have not killed. It may be condemnable to you, a long time foe of the death penalty and a crusader against it, but the truth is there are many of us not so crystal pure who think one way and feel another.

Moreover, Harris was incontrovertibly guilty and said he wanted to die. Does all that mean the state has the right to do it? No. But it doesn't mean that others with humanity and compassion for the victims have to feel bad about it.

Feb. 11, 2008

To (redacted):

In what way does a brutalized life from birth not mitigate future acts of violence? If this were true, there would be no need for mitigation at death penalty trials at all, since virtually every case calls forth similar acts of violence and mistreatment heaped on children who later become violent in their own behavior. I absolutely agree with you that NOTHING excuses what he did (or what any convicted murderer does, for that matter), but mitigation is not excusing, only helping to understand why an individual is what he is. (I approach mitigation with the notion always in my head that "there but for the grace of god" - and the circumstances of my life - go I; perhaps you believe yourself immune from such early conditioning.)

Would that you were as "viscerally incensed at the notion of child" abuse that continues to define far too many children's lives at this very moment - children who will be tomorrow's Robert Harrises. (As one who conducts writing workshops every single week in several county juvenile halls for our weekly publication The Beat Within, I can assure you that such abuse is endemic...) Is Robert solely responsible for what he became, or do others (including us) bear some responsibility?

(As to your assertion that "he wanted to die," all I can tell you is that he fought his appeals all the way to the end, unlike others - David Mason and Robert Massie[2] come to mind - who truncated the process by giving up their pending appeals. If you intended to say that your intellect leads you one way while your emotions another, I absolutely would understand. Indeed, it is an argument I make all the time (about myself - even with what you describe as my "crystal purity" on the subject) while addressing the issue of capital punishment to audiences I speak before. However, if you listen to your own answers during that interview, I think you will have to agree that if that were the point you were trying to make, you blurred the lines enough to undermine it.

I guess (perhaps as Robert's friend and a reluctant witness to his homicide), I'm truly curious about what sets THIS condemned and executed man apart from the others in your mind whose executions would upset you as his apparently did not. Is it that his victims were "children" (both 16 years old)? Was it the media shorthand ("he ate their hamburgers") label that sticks to you? Was it the swaggering figure endlessly seen on the one news clip of him in custody? As an advocate, it is important for me to understand the reasoning of people whose minds I hope to change on the subject (or, in your case, not your mind but your heart), which is another reason I'm asking.

Finally, I feel that when the state kills, it is absolutely incumbent on citizens of the state (and especially citizens who oppose state killing) to "feel bad about it" even when they despise the act(s) that led to the execution. What else does a principled position demand of its adherents?

Michael Kroll, Feb. 11, 2008

To Michael Kroll:

I responded with strong visceral reactions to Harris for precisely the reasons you enumerated but there is, to be honest in ways that are not easy for me, probably a personal element. I loathe even mentioning it but I got bashed around as a kid pretty badly by a sadistic British sixth grade teacher and never informed anyone because, like most abused kids, I felt I was the one to blame. I'm certain it's affected me but I work on keeping my aggression in check and hope, particularly at this stage of my life, that it continues to be held in check. I'm certain there are many like me whose personal histories are far worse, like Harris, but who nonetheless would never eat hamburgers of adolescent boys they've mercilessly murdered. We are creatures of choice and self-control driven by demons but not subject to them.

Go on disliking me and my intellectual pretensions as you call them if that is your need but you asked for an explanation and I've put myself out here because perhaps you actually might better understand ambivalence between heart and head. The abuse excuse is something I kept hearing ad nauseam about Harris. Nothing excuses what he did. And nothing can diminish the rage many of us felt on behalf of his victims

Feb. 15, 2008

To (redacted):

I can certainly appreciate the honesty of your response, and why you think exposing your childhood experience makes you vulnerable. But it seems to me the entire purpose of putting our responses to crime — even horrendous crime which ALL MURDER is — within a rule-bound system is to take emotion out of the equation as much as possible. If someone I loved were the victim of murder, I would have precisely the same emotional reaction as anyone else (excepting, perhaps, Michael Dukakis...) But the cold and calculated institutional response that is the death penalty, which is designed to represent us all, substitutes a cold-blooded series of procedures, fraught with human error and prejudice. I am not, of course, advocating personal revenge for crime, but only suggesting that while my personal hot-blooded emotional reaction to murder, like yours, is universally understood, executions are, by design, cold-blooded.

In my career as a mitigation specialist in capital cases, I have represented people who have done far more heinous acts than Robert's in terms of the number of their victims or the cruelty of their methods. (Cary Stayner[3] was my client, for example.) And yet, in each and every one of them, I found the human being at the center, the person who, like me, came into the world as a mewling newborn with certain conditions of mind and body beyond his/her control. Then, each traveled a path, as we all have, that shaped and formed them.

I find it terribly unfair that people (you?) believe we all have equal powers of self-control despite unequal mental development, or that we respond in ways that are not shaped by our conditioning — conditioning that no child can control. If, as a child, you are shown love and affection within your family, you will reflect love and reflection beyond your family. If, on the other hand, every childish act you commit, even benign ones, is met with a hand across the face or a foot in the stomach, then you will reflect back that reality. How is that not mitigation for personal behavior?

(I won't get into your repeated use of the word "excuse" since that is nothing more than a red herring; it is the same words that Gov. Wilson used when he refused to grant clemency to Robert, even acknowledging the gross child abuse and Fetal Alcohol Syndrome he suffered — "I feel sorry for the child, Robert Harris, but I can't excuse the adult Robert Harris." No one was seeking to excuse his acts, only to try to understand the path that led him there. You're right, of course, that not everyone so abused grows up to commit murder, but I strongly believe that those children do grow up in ways that distort and destroy much of their adult lives, often in self-destructive ways that also have enormous impacts on our society.

I do not want to diminish the importance of the abuse you were subjected to in the sixth grade. It is relevant. You still feel it. (And, I imagine, you may even still shed tears when you allow yourself to re-experience the humiliation and pain you felt then.) So, why can't you see how much more serious the after-effects of life-long abuse from within the family, the grossest of all betrayals?

Finally, without trying to belabor the issue, I make it a point to try to reach out to the families of the victims of those I have some personal or professional responsibility towards on death row. For example, I went out of my way to meet with both families that Robert's crime destroyed. While one set of families was unwilling to engage in any kind of discussions with me (though they did allow me into their home), the other family did so. In the end, you may be surprised that THAT family was persuaded that Robert himself was also a victim, and that it served no purpose to kill him. A press conference was set up for the member of that family most associated with the case (the family's spokesperson) to renounce his earlier call for Robert's execution. However, when that plan came to light, the other family prevailed on him to keep his own counsel and not further hurt them by going public. He respected that wish and kept his silence.

Similarly, in the case of Cary Stayner, I spent time with both sets of families and both did talk with me. In the end, the mother of the young naturalist whose throat Mr. Stayner slashed, became a close friend of mine, a most unusual basis for a friendship, you must admit. Ultimately, she turned against the death penalty for her daughter's slayer. And, while she would happily have ripped his eyes out herself (for her own satisfaction), she could not support a system of government that justifies homicide, the deliberate killing of a human being, in the name of opposing homicide. Indeed, she went to the U.S. Attorney and urged him to oppose the death penalty for Stayner. She prevailed; in that (federal) case, Stayner was sentenced to Life Without Parole[4]. The mother remains my friend today.

I tell you this not only to remind you that there are no universal responses to murder within families destroyed by it, but also to point out that "solidarity" with victims' families is an easy slogan, but often reflects more our own conditioning and backgrounds — including the continuing festering emotional wounds of a 6th grade victimization — than any real reflection on just who those people are or what they are actually experiencing.

If you don't mind, I am going to forward you one of the (hundreds) of pieces I've had published over the years on this subject. Although it was written about a particular execution in California (that of Donald Beardslee ), it reflects my overall thinking on this subject. In truth, I doubt you will find much to disagree with in it.

Finally, I want to thank you for engaging in this exchange. It would be very easy to ignore me (as politicians routinely do), so I honestly appreciate the opportunity to converse. Michael A. Kroll, Feb. 15, 2008

[1] The first Californian executed in the modern era, Robert was put to death in the gas chamber on April 21, 1992. (See “The Unquiet Death of Robert Harris” under the “Cruel and Unusual” tab on this website.)

[2] See “Suicide by Execution” under the “Cruel and Unusual” tab on this website.

[3] Cary Stayner was convicted of murdering two teenage girls and two adult women in two separate crimes between February and July of 1999. He is often referred to as “The Yosemite Killer.” He is currently on death row in California.

[4] Stayner received a death sentence for the crime he committed outside the bounds of Yosemite National Park (making it a state crime), but a sentence of Life Without Parole for the crime he committed inside the Park (making it a federal crime).

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