Queens, New York, 1964: Barmaid Kitty Genovese was walking home from work on the night shift when Winston Moseley, who had gone prowling for a woman to kill, attacked her with a knife. “Oh God! I’ve been stabbed!” she cried, and a man leaned out his upper-story window and shouted, “Leave that girl alone!” scaring Moseley away. But the man took no further action, and Moseley returned to the hunt, catching up with Kitty at the base of a stairway behind a small, narrow, dimly lit door (pictured above). There he stabbed her again and again, raped her, mutilated her, and left her to die. While this was happening, 38 of her neighbors were within earshot of her screams, but no one came to her aid. No one even called police until it was all over. The one who finally did call the cops explained to them why he hesitated so long: “I didn’t want to get involved.”
Fort Worth, Texas, 1966: Teenagers Mark Dunnam, Robert Brand, and Edna Sullivan were hanging out one evening at a neighborhood ballfield when Kenneth McDuff approached them with gun drawn. He robbed them, then forced them into the trunk of their car. “They got a good look at my face. I’ll have to kill them,” he told Roy Dale Green, a friend who was tagging along with him. He drove his victims out into the country, killed the boys by shooting them in the face, then raped the girl, had his buddy rape her, raped her again, and finally threw her down and pressed a broomstick against her throat until her neck broke. His accomplice, horrified and remorseful, walked into a police station and ratted him out the next day.
Casper, Wyoming, 1973: Rebecca Thompson, 18, and her 11-year-old sister, Amy, were out grocery shopping when they came out of the store and found they had a flat tire. Amy called home to tell their mom about it and said two “nice men” were going to help them. Those nice men, Ronald Leroy Kennedy and Jerry Lee Jenkins, actually had flattened the tire themselves. They got the girls into their own car and took them out to the Fremont Canyon Bridge, 112 feet above the North Platte River. There they raped Rebecca, and there they threw both girls into the river. Amy was killed in the fall, but Rebecca survived with a broken hip. When she described her assailants, police recognized the two notorious troublemakers at once. Based on her testimony and on evidence found in their car, Kennedy and Jenkins were convicted of first-degree murder, rape, and assault.
San Francisco, 1974: Frank Carlson was up late working at home when he heard his wife Annette screaming in their bedroom. Rushing upstairs, he found Angelo Pavageau holding a knife to her. The Carlsons submitted to being tied up and rendered helpless, in hope that Pavageau would just take their valuables and leave. Instead, he beat Frank’s head to squash, first with a hammer and, when that broke, with a chopping block, a vase, a penny jar. Then he raped Annette, strangled her, slashed her wrists, beat her senseless, broke her fingers stripping the rings from them, left her for dead and set fire to the house. Regaining consciousness amid the flames, she managed to crawl out a window and cry for help. As San Diego Union-Tribune reporter Lisa Ryckman would write 10 years later, Annette had been beaten so badly that when her mother-in-law Elizabeth came to her in the hospital’s emergency room, “she walked past her, not recognizing the distorted face.”
Austin, Texas, 1991: Colleen Reed, a young accountant, was hosing down her car one night at a self-service car wash when Kenneth McDuff lunged into her wash bay and dragged her to his car in the next bay over . . .
Wait a minute! Is that the same Kenneth McDuff who killed those kids in 1966?
Yes, it is. They are one and the same. Stories such as these can be multiplied endlessly. Even in a slow crime year, wicked people do evil things. It happens all the time. The point of reciting this parade of horror is not so much to rehash what the perpetrators did as to note what they got away with. Each one of them is what might be called a walking argument for the death penalty, and, in fact, each one of them was promptly tried, convicted and (except for Green) sentenced to die for his crimes.
But then something went wrong. The perps didn’t die. Others died instead.
Why is the Death Penalty So Hard to Enforce?
What happened? It seems the justices of the United States Supreme Court, having banned racial segregation in Brown v. Board of Education, found that interpreting the Constitution as they pleased, without regard for the original meaning, was just too delicious a sensation to taste only once. No junkie ever took to heroin as avidly as America’s justices, freed from fealty to the intent of the framers, took to their new role as moral tutor to the nation.
No way were they going back to being what John Marshall once called: “the mere instruments of the law,” who “can will nothing,” whose power “is never exercised for the purpose of giving effect to the will of the Judge; always for the purpose of giving effect to the will of the Legislature; or, in other words, to the will of the law.” Where’s the fun in that? No, a jurist would hardly settle for that, not when an army of flatterers and rationalizers is standing ready to help him “grow,” “take an expansive view,” “be a force for social change”—so that their will may be done instead. Why expect him to reduce himself to a humbler role when his reward for such self-denial is sure to be the abuse and contempt of that same army?
Small libraries have been written about this, and I am hardly qualified to give it the extensive treatment a comprehensive view demands. Those who want to learn more should read Thomas Sowell’s The Vision of the Anointed: Self-Congratulation as a Basis for Social Policy, Robert Bork’s The Tempting of America: The Political Seduction of the Law, and, of course, Raoul Berger’s Government by Judiciary: The Transformation of the Fourteenth Amendment, which is available in its entirety online.
Let’s look at just one aspect of the problem. I cite as my authority Berger’s Death Penalties: The Supreme Court’s Obstacle Course.
The original, ratified meaning of the Eighth Amendment’s ban on “cruel and unusual punishments” is no big mystery. No, you can’t boil a man in oil, or crucify him, or skin him alive, or burn him at the stake, or anything like that. That’s what the clause meant, and that’s all it meant. Further, it restrained the federal government only; the states had their own similar provisions in their own constitutions, and their own judiciaries to give effect to those provisions.
The amendment did not prohibit strangulation by hanging, which was the common practice of every jurisdiction involved in its adoption and ratification. (The “standard drop” and “long drop” techniques, which aim at a quicker, more humane death than a hanging strangulation causes, did not become the norm until the late 19th century.)
The amendment did not prohibit execution for crimes other than murder. The same Congress that sent the amendment to the states for ratification also passed a criminal code for the federal territories that imposed death for murder, rape, robbery, and forgery of public securities. (Hanging counterfeiters? Yep. And don’t forget those pesky horse thieves.)
The amendment did not prohibit mandatory death sentences for specified crimes, nor did it require that people opposed to the death penalty be seated as jurors in capital cases. It did not require that trials of capital crimes be broken into a “guilt” phase and a “sentencing” phase. And—most inconveniently for today’s legal and “helping” professions—it did not require that a battalion of lawyers, psychologists, and investigators be paid by the state to inquire into such issues as whether the murderer had a troubled childhood.
All those prohibitions and requirements flow from the Court’s activist doctrine that the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society” rather than from the plain, practical understanding of the people who put that amendment into the Constitution.
That is the doctrine Chief Justice Earl Warren set forth in Trop v. Dulles (1958). The case involved not the death penalty but the stripping of citizenship from a wartime Army deserter. Warren’s doctrine figured prominently, however, in the post-Warren court’s decisions in Furman v. Georgia (1972) and Gregg v. Georgia (1976), the first of which wiped out all pending death sentences in the United States—thus sparing Kenneth McDuff and dooming Colleen Reed—and the second of which reinstated the death penalty, but only when it stands at the far end of the extra-constitutional “obstacle course” described by Berger.
The doctrine figured also in Woodson v. North Carolina (1976), which disallowed mandatory death sentences for any crime, even murder; in Coker v. Georgia (1977), which ruled out death for rape; and in other cases ranging further and further afield from the intention of the framers and the understanding of the ratifiers.
What “Decency” Requires
So much humbug! Whence came this power to divine those “evolving standards of decency that mark the progress of a maturing society”? Were the justices taking dictation from God, like Mozart? Or perhaps communing with the Great Beyond, like a psychic medium? However they received their insights, we must assume that anyone not on board with their project is, in their eyes, not only indecent but also immature. Reactionary, too. Isn’t that what you call someone who’s against progress? Oh, and apparently those obstinate naysayers have never even evolved. Neanderthals, they are. Knuckle-draggers. Antediluvian dinosaurs.
Let’s test that proposition. Regarding the Coker decision, read this passage from Chief Justice Warren Burger’s dissent, bearing in mind that the grotesque result he describes is supposed to be what “decency” requires:
On December 5, 1971, the petitioner, Ehrlich Anthony Coker, raped and then stabbed to death a young woman. Less than eight months later, Coker kidnapped and raped a second young woman, . . . stripped her, severely beat her with a club, and dragged her into a wooded area where he left her for dead. He was apprehended and pleaded guilty [and was sentenced] to three life terms, two 20-year terms, and one 8-year term of imprisonment [all] to run consecutively, rather than concurrently. . . . Petitioner escaped from the state prison where he was serving these sentences. He promptly raped another 16-year-old woman in the presence of her husband, abducted her from her home, and threatened her with death and serious bodily harm. It is this crime for which the sentence now under review was imposed. The Court today holds that the State of Georgia may not impose the death penalty on Coker. In so doing, it prevents the State from imposing any effective punishment upon Coker for his latest rape. The Court’s holding, moreover, bars Georgia from guaranteeing its citizens that they will suffer no further attacks by this habitual rapist. In fact, given the lengthy sentences Coker must serve for the crimes he has already committed, the Court’s holding assures that petitioner—as well as others in his position—will henceforth feel no compunction whatsoever about committing further rapes as frequently as he may be able to escape from confinement and indeed even within the walls of the prison itself.
Contrary to what the “evolving standards of decency” doctrine would imply, those objections are not obviously beneath contempt. And speaking of further rapes, let us now return to the rogues’ gallery that led off this essay and see what effect our judiciary’s solicitude for the lives of murderers has had on those cases.
Though known to be a serial killer, Winston Moseley was saved from the death chamber by a New York appellate court in 1967—a year that, because of relentless litigation against capital punishment, saw the beginning of a decade-long nationwide moratorium on executions. (The moratorium would end one year after Gregg v. Georgia, when Utah lifer Gary Gilmore dismissed his lawyers and chose death by firing squad rather than endure further incarceration. Gilmore’s famous last words? “Let’s do it.”)
In 1968, one year after being saved by the New York court, Moseley committed another rape during a short-lived jailbreak. No consequences, of course, befell the judges who had saved him. In 1971, Moseley participated in the Attica prison riot, which killed a guard and three inmates at its beginning and ended with the deaths of 10 hostages and 29 inmates when police retook the prison. In later years, Moseley sought parole and was rejected 18 times before he died behind bars in 2016 at 81 years of age, 52 years after Kitty Genovese’s death at 28.
In 1977, Wyoming’s death penalty statute was overturned in accordance with Woodson v. North Carolina, with the result that Ronald Kennedy’s and Jerry Jenkins’ death sentences were reduced to life imprisonment. “Every time the two would come up for parole,” the Associated Press reported in 1992, Rebecca Thompson “would relive that endless night. For the past two years, Kennedy had been appealing for a retrial—an effort that friends say deeply troubled and frightened her.”
On July 31, 1992, Rebecca returned to Fremont Canyon Bridge and plunged a second time into the North Platte River, joining Amy in death. Kennedy’s bid for a new trial had just been turned down, but she didn’t get the word in time. Six years later, Jenkins would die of heart failure, still behind bars. But Kennedy thrived in prison, “earning privileges such as keeping a pet, dating, and eventually having conjugal visits with his new wife.” As for Rebecca, the sheriff who had arrested Kennedy had this to say about her death: “She was raped and murdered 19 years ago, but she just died Friday.”
Conjugal visits are the icing on the cake in the Angelo Pavageau case as well. The jewelry he stole from the Carlson home was traced to him, resulting in his conviction and a death sentence for Frank’s murder. The Union-Tribune’s Ryckman wrote that when Pavageau went to Death Row, “Annette Carlson’s relief was overwhelming. It lasted two years.” In 1976, California’s Supreme Court ruled, pursuant to Gregg v. Georgia, that the state’s death penalty law was unconstitutional, and Pavageau’s sentence was reduced to a 54-year prison term. This set Annette, Elizabeth, and (after Elizabeth passed away in 2010) Frank’s brother Eric on a path of torment that has lasted decades. Feeling bound to do whatever they can to see that Pavageau never leaves prison, they’ve relived his foul deeds over and over again for the parole board’s benefit. Ryckman quoted Elizabeth Carlson as saying, “Half the year you can live a fairly normal life. But in the back of your mind, you know that June is coming, and with June comes the parole hearing.” Meanwhile, Ryckman wrote, “In prison, Pavageau has fathered two children through the system’s conjugal visit program, earned a degree from the College of Marin, and received $400 a month in veteran’s education benefits.”
Those are outcomes of dubious decency, all of them, no matter what the Supreme Court says.
“Don’t Be Like Pontius Pilate”
We now rejoin Kenneth McDuff and Colleen Reed. Saved from the electric chair by the Supreme Court, and granted parole because of a federal judge’s order to ease prison crowding, McDuff killed Reed five days after Christmas 1991. Her bones weren’t found until 1998; McDuff was convicted of her murder on the testimony of Alva Hank Worley, like Roy Green in 1966 a compliant accomplice, who was out cruising Austin with McDuff that night.
Worley had a child of his own, a girl of 14, and when detectives looking for McDuff questioned him and appealed to his paternal feelings, Worley broke down. He actually started screaming. The distraught man unburdened himself, telling how Reed cried, “Please, not me,” when McDuff grabbed her, how they took turns raping her on the way out of town, and how McDuff asked to borrow a shovel as he dropped Worley off at his house, saying, “I’m going to use her up.”
A few weeks after that, McDuff abducted Melissa Ann Northrup, a 22-year-old pregnant mother of two, from the Waco convenience store where they both worked. Her body was found two months later in a gravel pit near Dallas. This case got McDuff on “America’s Most Wanted,” which led to his arrest and trial in both the Northrup and Reed deaths.
During his trial in Waco, McDuff’s defense attorneys urged jurors not to be like Pontius Pilate, who “caved in to public demand” and sent Jesus to the cross. The jury, unimpressed, returned McDuff to Death Row. In 1998, he finally paid the price, more than 30 years after he first shed innocent blood. His execution closed the books on more than a dozen rape-murders committed while he was on parole.
As ghastly as all this “evolving decency” has been, that’s not the worst of it. McDuff at his death was thought to be the only American murderer to have gone to Death Row twice, but the vast majority of murderers never see Death Row, and many hundreds of them have killed again after being paroled. The website prodeathpenalty.com has compiled news reports of dozens of such cases.
In response to my inquiry, the Bureau of Justice Statistics reported that in 2002, 280 of the more than 3,500 murderers then on death row had prior homicide convictions. In the 1980s, the bureau tracked paroled killers and found that 7 percent of them—more than 220 of each year’s cohort—had been rearrested for homicide within three years of their release from prison. A decade later, a BJS study found a recidivism rate for homicide of only 1.2 percent. In 2016, the BJS released a new report on recidivism over a five-year period among prison inmates released in 2005. The rate of homicide was 2.1 percent. Thousands of murderers are paroled every year. Even at the lowest of the previously recorded rates, the number of resulting homicides must run into the hundreds—over decades, into the thousands.
The Supreme Court’s Obstacle Course
And that doesn’t even touch the impairment of deterrence. The Supreme Court’s “evolving standards of decency” doctrine upended the death sentences of many people like those cited here. But its major impact has been to ensure that very few murderers are ever sentenced to death, and that even fewer of those death sentences are ever carried out. And this means that of the more than a million Americans who’ve been murdered since 1960—and of the countless more Americans who will be murdered tomorrow, next year and on into the future—none has had a chance of being protected by the full force of the law.
How many of those hundreds of thousands of murder victims could have been saved, and how many future victims can yet be saved, by an inexorable enforcement of the death penalty against murder? Some of them? Many of them? Most of them? Almost all of them? No one knows. And no one will ever know, unless “the Supreme Court’s obstacle course” is dismantled and the original meaning of the “cruel and unusual punishments” clause is restored.
No foreseeable set of justices can be counted on to do that. Therefore, a constitutional amendment is the only practical way. I’ve made the case for it here, here and here. For the sake of the million murder victims, “Let’s do it.”
Photo credit: Henry Groskinsky/The LIFE Images Collection/Getty Images (top); Texas Department of Corrections (middle)