The Up-Hill Road

Remarks of U.S. Senator Russ Feingold at Committing to Conscience Conference:Building a Unified Strategy to End the Death Penalty

San Francisco, CA, November 18, 2000

Thank you, Mike [Farrell], for your kind words. It has been a pleasure to be able to work with you and your group, Death Penalty Focus. I'm so glad to hear that your wife Shelley is doing well. I first worked with Shelley when I was in the Wisconsin State Senate, and I'm glad that she connected us on this issue. I was pleased to attend the Death Penalty Focus event in Santa Monica earlier this year, and it is good to join with you to work on this issue again today. I thought we'd have a budget wrapped up and a President by now.

I'm proud to be an abolitionist. I'm from a state, Wisconsin, which, after an execution in 1851, abolished the death penalty. And Wisconsin hasn't had it since that time.

After the challenges to and seeming rejection of the death penalty in the mid to late 1960's, I thought we would never have a death penalty again. And I certainly never thought it would return with such a vengeance. That is why it is essential that we come together now * almost 25 years after reinstatement of capital punishment * to build a unified strategy to end it.

Let me first take a moment to commend Death Penalty Focus and all the groups that organized this conference: the ACLU, Amnesty International, Murder Victims' Families for Reconciliation, National Coalition to Abolish the Death Penalty, the American Friends Service Committee, the Community of Sant'Egidio, and the Religious Organizing Against the Death Penalty Project. I am grateful to these organizations for giving us this opportunity to come together and to commit ourselves once again to this cause.

Let me also say that I am very pleased to be in the company of the individuals whom we honor this evening. As a fellow politician, I am particularly pleased to share this evening with Governor George Ryan. His decision * suspending executions in Illinois * is one of the single most courageous political acts I've seen in my lifetime. I also commend the other individuals we will honor this evening: Ken and Lois Robison, Pat Bane, Hugo Bedau, Aundre Herron, Dick Burr, Steve Dear, and the Critical Resistance Youth Force. I applaud them for their outstanding and courageous work and sacrifice on so many fronts.

Through the good work of many people, many of whom are in this room this evening, we've come a long way in our struggle to sway the hearts of the American people on the issue of capital punishment. Just one year ago, terms like "moratorium" and "post-conviction DNA testing" were, in my view, nowhere in the nation's discourse. But today, the American people now know the fact that innocent people have been sentenced to death.

We've come a long way and we still have a long way to go. I think of the poem by Christina Rossetti: "Does the road wind up-hill all the way?"Yes, to the very end."Will the day's journey take the whole long day?"From morn to night, my friend."

When we talk of the movement to abolish the death penalty * a movement that is so well represented by the leaders in this room * we would do well to remember the long up-hill roads that other movements had to climb to reach their righteous goals.

The abolitionist movement to abolish slavery in the United States came to strength in the 1830s, 35 years before it reached its goal. That movement advanced over a long time and on a number of fronts. William Lloyd Garrison advocated moral suasion. Others advocated direct political action.

Others here whom we honor today are the rightful heirs to Garrison. And we cannot succeed without their moral leadership. But let me talk to you tonight a bit principally about the political and legislative road.

I believe that we have begun a climb in Congress that, I am hopeful, are the first steps that will lead us to a nationwide moratorium on executions and a thorough examination of the death penalty system.

First, let me take a glance back down the hill. The 1980s and '90s heard an incredible clamor for an expansion of capital punishment. State legislatures and the Congress were wrestling with growing crime rates. And many politicians responded by re-instituting or speeding up the machinery of death. At the state level, executions accelerated during the 1990s so that last year, we hit an all-time high for executions in one year since reinstatement of the death penalty: 98.

At the federal level, the story was much the same. Congress significantly expanded the federal death penalty in 1994. And today, the date of the first federal execution in almost 40 years may well be fast approaching. That execution, of Juan Raul Garza, is scheduled to take place in just over 3 weeks, on December 12.

I can recall a lonely road in 1994, when I was the only Democrat to vote against the Violent Crime bill that year. In that debate, I said that one of my primary objections to that bill was "that [it] kept intact the . . . needless expansion of the Federal death penalty to cover, according to most estimates, as many as 60 new offenses."

I can also recall a lonely road in 1996, when I was one of only 8 Senators to vote against the so-called anti-terrorism bill, which, in fact, gutted habeas corpus. In that debate, in April of 1996, I said: "By setting unreasonable limitations and standards of review available on appeal of constitutional violations, this bill greatly enhances the potential that this Nation will execute an innocent person . . . ."

And even just one year ago, the death penalty was not much debated in Congress or the media. To be honest with you, my colleagues never even mentioned it, as best I can recall. Newspapers, news magazines, and television chat shows were largely silent on the issue of capital punishment.

A year ago, I was thinking about what would be one of the most important things we could say at the turn of the millennium. After a fair amount of reflection, I came to the conclusion that I should propose legislation to abolish the death penalty. Let us leave this horrible practice behind, in the last millennium.

I understood that I didn't have any supporters but the good thing about being a Senator is that you can introduce a bill, even if your colleagues do not support it right away. So, a year ago, last November, I introduced the Federal Death Penalty Abolition Act of 1999. And although Senator Carl Levin of Michigan has joined me in that effort, it is still a rather lonely road.

Some see opposing the death penalty or questioning the fairness of its application as political folly. In the '80s and '90s, many Democrats and Republicans moved to the right on criminal justice issues, including the death penalty. But I believe that those were also times when most Americans were not yet aware that our death penalty system is broken.

Let me share with you one experience from early this year to illustrate this point. It was January, but significantly a few days before Governor Ryan's courageous decision to suspend executions sent shockwaves throughout the country. But it shows just how far Governor Ryan's action has propelled us that a few days before Governor Ryan's announcement, I was having difficulty getting the interest of the editorial board of a major newspaper in the death penalty issue at all.

At my meeting, we discussed a number of issues, including campaign finance reform and my recent trip to Sub-Saharan Africa. But I wanted to focus that day on the death penalty. I said that I intended to work hard to educate my colleagues in the Congress and the American people about the serious flaws in the administration of this ultimate punishment. I talked about how the problems coming to light in Illinois were not unique to Illinois. Rather, the people of Illinois, as we know, were simply the first to acknowledge that their system applies the death penalty unfairly.

But, on that cold, winter day, the editorial writer responsible for criminal justice issues looked at me a little bit puzzled. When I talked about campaign finance reform, she sat on the edge of her seat and took careful notes. But when the subject turned to the death penalty, she seemed less intent. And it's understandable, because editorial writers are supposed to editorialize on what's possible.

Then, a few days later, Governor Ryan declared his intention to suspend executions and thoroughly examine the Illinois system. After Governor Ryan's courageous decision, that paper began running editorials supporting a moratorium on executions and a reevaluation of our nation's death penalty system.

Indeed, since January, a growing chorus of Americans have come forward in support of a moratorium. Abolition organizations and civil rights groups have joined with a broad range of religious groups to advocate a time-out. The moratorium effort has been endorsed by more than a thousand local governments and organizations across the country.

Just earlier this week, the National Catholic Conference of Bishops, which has supported a moratorium, reiterated its commitment to abolition of the death penalty. Cardinal Mahony of Los Angeles said, "It is time to abolish the death penalty * not just because of what it does to those who are executed, but because of how it diminishes all of us."

Even some death penalty supporters, including * I hesitate to mention this gentleman as an ally * Reverend Pat Robertson, have come forward to call for a moratorium.

Today, "moratorium" in the context of the death penalty is not a foreign word. It has earned a certain political and legal currency, and even legitimacy.

Now, let me be clear. I believe murderers and others who perpetrate heinous crimes should be punished and sometimes punished severely. Justice demands that crimes be punished. But those who demand justice must administer justice. There is nothing that could threaten our criminal justice system more than the state taking the life of an innocent person, or even the perception that the state may take the life of an innocent person.

In February of this year, the Senior Democrat of the Senate Judiciary Committee, Senator Leahy of Vermont, introduced the Innocence Protection Act to address, in part, that very risk, by ensuring access to post-conviction modern DNA testing and providing minimum standards for legal representation for people facing the death penalty. I was pleased to join as an original cosponsor of Senator Leahy's bill. He revised it in June, and it now has 14 cosponsors in the Senate, including three Republicans. Congressman Delahunt's companion bill has 81 cosponsors in the House of Representatives. The Innocence Protection Act is the very least we should do to ensure fairness in our system of justice.

And then this April, I had the opportunity to introduce my National Death Penalty Moratorium bill. This bill seeks simply to do nationally what Governor Ryan did in his state. It would place a moratorium on executions at the state and federal levels and create an independent commission to review the death penalty system.

I am pleased that four of my colleagues have joined as cosponsors of this bill * Senators Carl Levin of Michigan, Paul Wellstone of Minnesota, Dick Durbin of Illinois, and Barbara Boxer of California. We don't all agree on whether the death penalty should be allowed, but we are united in our belief that the current system is broken. Congressman Jesse Jackson Jr. of Illinois introduced the companion bill in the House of Representatives.

I'm confident that we can get many more cosponsors next Congress, including new members of Congress. Let me tell you, they are a lot more willing than you might think to support a moratorium bill.

Once again, I believe that the National Death Penalty Moratorium Act is a modest first step, a step that we ought to be able to take in this coming Congress. I, of course, will also reintroduce my bill to abolish the federal death penalty. But the bill that will get more support at this time is the moratorium legislation.

I've spoken on the Senate floor several times this year about the need for a moratorium. And I am going to continue to speak out, calling for change.

In June, the Senate Judiciary Committee held a hearing on whether inmates have adequate access to modern DNA testing post-conviction. This is an important issue, but we can't stop there. Next year, I plan to press Senator Hatch, the Chairman of the Judiciary Committee, to hold more hearings on our death penalty system. I believe Senator Hatch, who is a religious man, wants to do what is right. I believe he will help us. I hope that you will join me in pressing Chairman Hatch for more hearings.

I believe that Congress can lead the nation on the death penalty. But I also know that sometimes Congress is slow to lead. All of us in this room must work together. I know that some of you in this room have been working in support of my legislation, energizing your membership and lobbying members of Congress. I thank you for your support. Please keep up your efforts to build the number of cosponsors for the moratorium. Keep up the fight. We need to keep climbing that up-hill road, for we are truly gaining ground.

Some of you have also been working at the local level to encourage state legislatures and city councils to pass moratorium legislation and resolutions. Believe me, that work is critical. Nothing will get a Senator or Representative more interested in an issue than knowing that a local or state official, who might later challenge him or her for a seat, has taken a stand on an issue. It is important to raise awareness and support at the local level, which, in turn, creates the needed political pressure for our efforts to succeed at the national level.

And let us not miss the opportunity to bring along on our journey some of what one might at first consider unlikely partners. I seriously believe, because I've had genuine off-the-record discussions, that conservative, religious Senators and Representatives will join us. When people like Pope John Paul II and the Reverend Pat Robertson come forward to express their reservations about America's administration of the death penalty, we have an opportunity.

That Senator Hatch agreed to a limited hearing on DNA testing is progress. And I've observed that the outspoken voices for capital punishment that we have heard in years past on the Senate floor were relatively silent this year. There are pro-death penalty members, as I've said, who are open to persuasion. I wish we would take the opportunity to persuade them.

The American people are ahead of many of their leaders on this. Two national polls have shown that while Americans continue to support the death penalty, almost two-thirds of Americans support a suspension of executions while questions of fairness are studied.

For the first time since the 1960s, there is a consensus that "business as usual" just won't do, when it comes to the death penalty. Sure, Americans want to punish criminals. I assume we all can agree on that. But the American people also demand what is right, what is fair and what is just.

In recent days, many Americans have been fixed on our presidential election, to say the least. We are living through one of the most interesting moments in our nation's political history. I hope you will join with me in pressing whoever our new President is in urging a new look on this issue. Let us ensure that the next President hears from us again and again about the death penalty.

But sooner than that, even sooner than that, I hope that you will join me, this coming week, in pressing this President, President Clinton, to defer that first federal execution in 40 years.

My friends, this conference has brought together abolition, civil rights and faith-based organizations and other groups who share a desire to ensure justice for all Americans. Labor, feminists, students, the gay and lesbian community, abolition groups, civil rights groups, religious groups * we all share a common vision for an America that achieves an even higher level of greatness.

Yes, the road may be up-hill all the way. But, as Montaigne wrote, "Virtue will have nothing to do with ease . . . It demands a steep and thorny road."

And many African Americans, remembering that long journey against slavery in America, sang, in the words of James Weldon Johnson's anthem "Lift Every Voice and Sing," written one century ago:

"Stony the road we trod,
"Bitter the chastening rod,
"Felt in the days when hope unborn had died;
"Yet with a steady beat,
"Have not our wary feet
"Come to the place for which our fathers sighed?"

Yes, the abolitionists of that long march for justice reached the mountaintop, and yes, they went over to that new land.

We, in our abolitionist movement, still have a long way to go. And there will be thorns. There will be stones in the road. And yes, the road winds up-hill all the way.

But let us shoulder our packs. Let us resume our climb.

Thank you.