Last week the Trump administration carried out its 9th and 10th federal execution of 2020. On Wednesday night, the state executed a 40-year-old man, Brandon Bernard.
According to the AP, “when Bernard was 18 he and four other teenagers abducted and robbed Todd and Stacie Bagley on their way from a Sunday service in Killeen, Texas, during which Bernard doused their car with lighter fluid and set it on fire with their bodies in the back trunk.”
Bernard’s death comes several months after the Justice Department surfaced a proposal to “reintroduce firing squads and electrocutions for federal executions, giving the government more options for administering capital punishment as drugs used in lethal injections become unavailable.”
Last Friday, the government executed Alfred Bourgeois, who has an intellectual disability, which should have meant he could not have been up for the death penalty. But Bourgeois’s trial lawyers did not present evidence of his intellectual disability to the jury. He was the 17th person executed in the united states this year, and the country’s last scheduled execution for 2020.
This week on Quick to Listen, we wanted to discuss how to wrestle with the death penalty, accountability, justice, and forgiveness from someone who has straddled many sides of this situation.
Jeanne Bishop, a felony trial attorney in the Office of the Cook County Public Defender in Chicago. She is the author of Change of Heart: Justice, Mercy, and Making Peace with My Sister’s Killer and Grace From the Rubble: Two Fathers’ Road to Reconciliation After the Oklahoma City Bombing. Bishop joined global media manager Morgan Lee and editorial director Ted Olsen to discuss how her work and sister’s murder have impacted how she views the death penalty, what accountability and justice look like outside of the death penalty, and how to pray for those in the criminal justice system during the pandemic.
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Music by Sweeps
The transcript is edited by Yvonne Su
Read Morgan’s interview with Jeanne: Forgiving Her Sister's Murderer, Face to Face
Read Ted’s piece about Pullman, Disney World, and churches
Highlights from Quick to Listen: Episode #242
How did you understand the idea of justice in the criminal justice system before your sister's murder and how did this murder end up changing and challenging it?
Jeanne Bishop: My younger sister Nancy died at the age of 25 along with Richard, the love of her life. She wanted to raise a big family and grow old with him. Instead, they were shot to death in the basement of their home.
Nancy was three months pregnant at the time with what would have been their first baby. That staggering event made me realize that my thoughts about the criminal justice system and what justice meant were wildly wrong. To me, justice meant you did this wrong thing, and now we're going to exact this criminal punishment from you that is going to somehow balance the scales.
The countervailing thing will be to have this punishment and then you're even. But losing my sister, her husband and my little niece or nephew made me realize that you can't truly balance those scales. You can't bring her life back. You can't bring back all the joy. The things that her child could have done if it had been able to be born and grown up. It was faster and deeper than I had ever imagined.
After you processed this, you ended up becoming a public defender. What type of mentality did you have about what justice was when you entered that line of work?
Jeanne Bishop: I felt that justice was to be a voice for the voiceless. The criminal justice system often is so stacked against the people that I represent: people who don't have a lot of material means, people who often come from areas of poverty, not just of wealth, but of healthcare, of education, freedom from discrimination, of over policing. What I wanted to do was to stand with them, to be the person that would advocate for them no matter what they had done.
How did your faith shape how you understand your work, your calling, and your sense of justice?
Jeanne Bishop: My faith has everything to do with my sense of justice. I love, as so many people do, Micah 6:8, where the prophet asked, “What does the Lord require of you, but to do justice and to love mercy and to walk humbly with your God?” And what that means to me is that there is no true justice without mercy, humility and working in the criminal justice system as a public defender.
For 30 years now, I see the need for that kind of humility of understanding that we often get things wrong. Sometimes witnesses make a mistake. Police cut corners. Defense lawyers are lazy about investigating something. You've got an overzealous prosecutor, jurors who aren't paying attention, all kinds of things can go wrong.
It takes humility about the certainty that we have about the justice that we think we're meeting out. And the mercy aspect is to not just have it be about harsh retribution, but to have it be in some way about how we restore this person to society, this person who's transgressed against society. How do we bring this person back instead of just throwing them away?
Where does voice come into play here? What is the voice that is being held back: is it the people telling their own story? Why is it that people who need to speak out are often muzzled in these kinds of stories?
Jeanne Bishop: Myself and my family were family members of the victim. So much of the process was the prosecutors telling us what was going to happen and never asking us, “What do you think?” or seeking in. In court, we were all kind of like props.
We were there to be the grieving family, but we were not to talk to the press, the jurors, the family of the defendant. We're doing court by Zoom right now during this era of COVID. You can hear all at once what's being said from a lawyer to a defendant who wants to say something to the court and the lawyer is always trying to shush him up and say, “Don't say anything, Mr. Smith, you're being recorded. Everyone can hear you.” As a lawyer, you don't want your client to say something that might hurt his case, but you also have this person who just feel so stifled in silence.
There may be something really important that he has to say, and he's just not being allowed to say it. In the criminal justice system, the judges and jurors have such strict rules on what they can read, what they can know about, what they can say.
So often we're all in our individual silos. This is the part of the changes that are happening in the criminal justice system that I love most: this notion of restorative justice, where instead of separating and silencing people, we're intentionally trying to gather people: the perpetrator and the victim, the communities they come from and their families, and bringing them all together in a circle to talk about the wrong, how it can be repaired, how this person can be restored and how the relationships can be restored within the community. It's such a helpful thing and so consistent with the Gospel.
One of my favorite stories from the Bible is of Jesus going to this town and there's this guy who today, we would call mentally ill; he was so out of control that he had to live among the tombs. The village elders wouldn't let him live in the village and he would bruise himself with stones. They tried to hold him with chains and nothing would work. And Jesus came and cast out this demon of whatever it was that was tormenting him, causing him to be like this.
Then the villagers all came when they heard what had happened. They saw this man sitting there calmly clothed and in his right mind. And they were afraid: meaning what happened here and the man who's cured wants to go with Jesus as he leaves with His disciples and moves on to the next town. And Jesus said to him, no, stay here and tell of all the mercy that God's done for you. The message to me is that Jesus wants our restoration in our community. That's the heart of restorative justice.
What are some of the differences between the federal death penalty system and the state death penalty system that people should know about?
Jeanne Bishop: The federal death penalty applies only to federal crimes. For example, Timothy McVeigh, the young man who blew up the Oklahoma City Federal Building and killed 168 people. That was a federal crime because it was federal property and some federal employees died in that. There is one federal system for all 50 States. So even if you are in a state where your state death penalty has been abolished, like Illinois, there is still a federal death penalty for any federal crime that might happen here.
The state can't completely eradicate the notion of a crime related to your jurisdiction ending up with a death penalty because the federal government has said that there's going to be a death penalty in all 50 States, but the different individual States have a right to abolish their own state death penalties and have their own rules for what makes them eligible, how it will be carried out and so on.
The other difference is that generally speaking, there've been very few federal executions. When Timothy McVeigh was executed in 2001, there had not been a federal death penalty carried out in 40 years. He was the first one in 40 years. And when President Obama was in office, there was a long hiatus.
It was only in the very waning days of the Trump administration that there has been this ratcheting up and this rush to execution, despite many of the victims, family members, and many of the jurors who handed down the death penalty decision saying, “Please don't do this.”
Knowing what we know now about this particular defendant, we wouldn't have given the death penalty at the time. And yet, they're still being put to death.
To get some clarity on this, what switch was exactly flipped this past year with regards to the number of federal executions happening?
Jeanne Bishop: I regret to say this, but I must: the truth of it is that we had a president in office who likes to show strength and I think defines this kind of harsh retribution as strength. I disagree with that. And I think that our Christian faith argues against that as well. We also had an Attorney General that seemed all too eager to carry out the wishes of the President, even though the Attorney General is supposed to not represent the President and his wishes, but the people of the United States of America, and they're supposed to be independent in their judgment and their actions.
It has turned out to be a lethal combination for the people who have been living peacefully on the federal death row. All this time and there seemed to be no outcry for, or need for their desks at this point, after so many years.
Was there some form that was not filled out during the Obama administration, by the President that then was changed or reversed in this past year?
Jeanne Bishop: Not that I know of. All I know is that it was a policy of the Obama administration not to pursue these executions and set execution dates. Just as in our state of Illinois, before we abolished the death penalty, there was a moratorium put in place by then Governor George Ryan that lasted several years before we finally abolished the death penalty.
Could you explain the idea they’re considering about bringing back firing squads, electric chair, and the gas chamber?
Jeanne Bishop: They're doing that because it's very difficult to get the ingredients that are needed to do lethal injections. One of the manufacturers of the chemical that was used in lethal injections previously was based in Italy. And of course the European Union ages ago abolished the death penalty in all of its countries, including Italy.
And they were outraged that their product was being used to kill human beings. So they said, “We're not selling this to you anymore.” That resulted in jurisdictions trying to buy this from places that sold compounds and there were ghastly effects of people suffocating and having agonizing long deaths, and doctors refusing to participate in this and medical associations decrying it because you're basically experimenting with things.
I think they're trying to expand it to get around these sort of restrictions.
Have you been in courtrooms where the attorney across from you is arguing for the death penalty for your client?
Jeanne Bishop: Yes. I was on a team of lawyers that represented a man named Andrew who had killed several people in the state of Illinois and even more people in the state of California. He had been a United States Marine who was training in Camp Pendleton and killed, I think, five women there. And then there were three that were killed in the state of Illinois. He was tried first in Illinois on the two cases that were in Cook County. It was a month-long trial and the jurors only took an hour to sentence him to death.
He was the subject of our moratorium on the death penalty, then finally the abolition of the death penalty. He was transferred out to California to face trial there. And while in San Quentin, he took his own life.
What are your convictions about the death penalty?
Jeanne Bishop: I've always been against the death penalty from a young age, just on what I would call logical rational grounds. It's more expensive than housing people for life. It is racist in its application. Not that we kill more Black people than white people, but that we kill more people who kill white people than people who kill Black people as their underlying crime.
It is illogical because you're killing to show that killing is wrong. It doesn't deter a crime. That's why the state of Minnesota doesn't have a higher crime rate than the state of Texas. There's no death penalty in Minnesota, never has been. And there's a robust death penalty in the state of Texas, but there's no evidence that there's any deterrent factors.
Of course, then there's the risk of killing an innocent person. Once you do that, you can't take back your mistake. If you incorporate somebody wrongly, which happens all the time, you can release them from custody, but you can't restore a life that you've taken. And you know how that argument would always end.
If you're talking in a debate with people, they'd always say, “Well, if it was your family member that was killed, if it’s your child or your mom, you'd want that person dead.” And that's the unanswered question. How would you know how you'd feel until that happened? But when Nancy and Richard were killed and their baby was killed, that just even more made me oppose this idea of deliberately taking a human life, anyone's human life, this idea of shedding more blood and digging another grave and creating another grieving family.
It was the antithesis of what I thought my sister's Memorial should be. I truly believe that her Memorial should be preventing the kind of violence that took her life, meaning working against gun violence and working against the death penalty, which I think cheapens the human life and perpetuates this idea that killing is a solution to anything.
Does the government have a right or duty to do some of these things? The way that it is happening in the United States, is there anything remotely close to justice here? That was the conversation that happened in Illinois that eventually led to barring the death penalty.
Jeanne Bishop: That's exactly what happened: Governor Ryan established his bipartisan commission, half Democrats, half Republicans, who studied it and came up with something like 86 recommendations to fix the death penalty. It said that even if you enacted all 86 of these, which we never did, you still can't guarantee that an innocent person wouldn't be killed.
We had 20 people exonerated from our death row. One out of every two people on our death row was factually innocent and that is just staggering. You think about how you're just gambling with human life and human life is so precious, whether you're innocent or guilty.
One of the things I love about the story in John 8 about Jesus’s direct encounter with the death penalty. It wasn't an innocent person. It was a person that we knew was guilty. It was a woman who was caught in the act of a crime that was punishable by death in that society, a crime that is still punishable by death in some societies in the world today.
When they brought her before Jesus and threw her in the dirt and said, “The law says we should stone such women. What do you say?” And I love that. He didn't say she didn't deserve to die. He said in essence that we didn't deserve to kill her. You cast the first stone.
In other words, you are not perfect and you don't get to end her life.
You’ve been working as a public defender for several decades and you have been exposed up close to really ugly things people do to each other, on an excruciating basis. What type of work have you had to do yourself to learn to once again, fight for justice in these situations, knowing so many of the complexities?
Jeanne Bishop: I had a client named Sanatone Moss when I was working in juvenile. I wasn't working on the delinquency side of juvenile court, where you're representing teenagers who've been accused of crimes. Children who've been accused of crimes. I was working on the abuse and neglect side. That's where you are assigned to represent parents whose children are being taken away by the state because of either their abuse or neglect, but also because of something called depravity. Depravity means that you have done somethings so terrible that we cannot trust you to be a parent of a child anymore.
And we're going to terminate your parental rights and take this child and place them in a home where they're safe and cared for. And Sanatone Moss had two children that they were trying to take away on the basis of depravity, because he had raped an 11-year-old girl and this 11-year-old girl, after this horrific incident, went to her mother and told her mom what had happened to her.
The mother took the little girl and went to the police and reported the crime. He was arrested for this rape that he committed. When Mr. Moss was in jail, he decided that the solution to this problem of having this little girl and her mother be witnesses against him, was to have them killed, which he did, to have relatives to kill them.
This young innocent woman who had already been victimized and her distraught mother were stabbed to death in a parking lot. And killed. So now San Anton Moss was facing the death penalty. I was to sit down with him and talk with him about what his options are and the most merciful option for the children to not be put through a long process of a trial and the uncertainty. The best way to do that would be to just simply voluntarily give up his rights to sign a termination of parental rights document.
My job was to present those options to him. But I also said to him that he had done these terrible things in his life, and this is one good thing that he could do. One selfless thing that he could do for his children to help them. It was hard looking into his eyes and being even in his presence, the guards hovering around outside the door, not wanting me to be alone with him because of the darkness inside.
But there was light there enough for him to do that, to pick up the pen and voluntarily do something that would free his children for a better life. And so even in the worst moments, I've been able to find, redemption.
Do you think our justice system is a place that tries its best to hold people accountable? Is it a place where they're trying to reform people? What do you see as the goal of your colleagues and those who work in the criminal justice system? And what's the gap between that goal that they work for and how it functions in reality?
Jeanne Bishop: I think we are trying to hold people accountable, but we're also trying to reform people. One of the things I love about my work is that I work in this large system broken up into different districts. In the district where I work, I've never worked with better prosecutors or judges, and we all seem to be working on the same page of “How do we fix this problem?”
What's the best outcome to help this person and make sure this doesn't happen again? Sometimes it's a drug addiction and you're trying to send them to a drug court, or into some kind of drug treatment and then a probation where they're continuing to get counseling.
Sometimes it's a mental health issue where we try to see if this person need some medication and they're evaluated for that. Sometimes it's an issue of housing of homelessness. Someone is breaking in and trespassing in people's buildings, so they don't have a place to stay.
There are so many things that we have now in our system called problem solving courts, where there's a veterans court, where there is a drug court, where there's a mental health court, and now even have a restorative justice court for juveniles in some sections of our city. And we can do things hand in hand.
We can say, “We're going to look at what you're doing. We're going to keep tight rein Son you. But we're also going to try to help you so that this doesn't happen again.”
Mental health experts estimate that at least 20% of people on death row today have a serious mental illness. There have been at least 44 people with intellectual disability executed before. In 2002, the Supreme Court said that you can't execute people with intellectual disabilities. What role does mental illness play in some of these cases?
Jeanne Bishop: There was a guy on death row, who when he had his last meal, told the guards to save his dessert. He wanted to save his dessert for later after the execution, because he wanted to eat it. He did not even grasp what was going to happen to him, which defies the idea that you're actually punishing this person.
If the whole point is to punish them, if they don't even comprehend what's going on, it's utterly bizarre and cruel. Right? This whole issue of mental health is huge. I started out my practice thinking, probably about 30% of my clients have some sort of mental health problem that completely incapacitates them: trauma, bipolar disorder, schizophrenia, depression, and all sorts of things. I have had two clients commit suicide. One very recently, I went to his funeral. It was absolutely heartbreaking. The young man was abused when he was young, twice: once by a male cousin and another, but later by an older male. It sent him off into a kind of a tailspin of trauma.
Because of a lack of any mental health treatment, that trauma turned to drugs, which often happens when you're trying to numb your pain, which led to crime because then you have to steal to support your addiction, unless you have a whole lot of money. And so he was in and out of jail.
This wonderful aunt took him into her home after everybody else had put him out. Since she didn't allow him to use drugs in her home, sometimes he would go off and do that and she'd lose track of him. He got rearrested for that. He just was so despondent about being in the jail that he took his life in the jail, not too long ago.
What I've learned from over the years is that over 50% of my clients have some sort of mental disorder. Mostly because of trauma, my clients have so much in common in terms of just some terrible thing that happened to them when they were young, that kind of marked their path for the rest of their life because they didn't get the help they needed. Somebody put it really succinctly and beautifully: hurt people, hurt people.
How do you balance having victim’s families that are looking for something that is very tough and seems like a real punishment, with how to best honor and do justice for victims and their families with restorative justice?
Jeanne Bishop: I was asked to take part in an amicus brief before the U.S. Supreme Court on a case involving juvenile life, without parole sentences. Talk about a harsh sentence. What that says to a young person who was a child when they committed their crime is that we are throwing you away forever. You will never get out of prison. You can be as rehabilitated, remorseful, and safe to release in society as you want to be. We will never let you out. We're never even going to take a second look at you. Without parole means there's not going to be a parole hearing where we look and say, “How are you doing? Can we let you out now to safely adjust to society?” That's never going to happen. We're simply going to decide right now at this young age that we're throwing you away forever.
What I said in this brief was that there's two ways of looking at it. You’ve taken away the life of my loved one forever; then we're going to throw your life away forever. And that's how I'm going to honor the life of my loved one. But there's a better way of honoring the life of your loved one.
It is to say, “We're going to restore you.” We are going to bring you back. We are going to expect of you and ask from you that every bit of good that our loved one who is dead at your hand can no longer do. We now want you to do, we want you to live the kind of honorable, productive, upstanding life that they were living.
We want you to contribute in ways that they never will be able to because of your act. And we want you to know that this is your obligation. This is the moral obligation that attached to you when you wiped this life off the face of the earth. That is the way of restorative justice. That's the way of redemption instead of retribution, of life instead of death.
Can you speak about how your work has been affected and how your clients have been affected by the pandemic, which has had huge ramifications for folks in jail and in prison?
Jeanne Bishop: This pandemic has done something terrible to people in all sorts of different professions. It's laid off gig workers. It's decimated people who are busboys, chefs, restaurant servers, movie theater ticket takers. All my friends from the professional choir that I sing in that are professional singers -- it's made it so tough for them. On the other hand, there are some professions where it's just increased our workload exponentially to the point of breaking. We're thinking of doctors and nurses and essential workers. But I have to tell you, my work has never been as busy or as stressful.
Our court's closed down for months between March and July. Basically everything just got an automatic continuance and so nothing was done. No old cases went out by some kind of mutual disposition either by dropping the case or having someone plead to probation or something. Everything just simply piled up as new cases were being added.
The top priority of my office, of course, was to try to get every single client that we had out of custody in the jail, because at one point the Cook County jail was the number one hotspot for COVID in the country, and still obviously a place where my clients are under great threat of illness.
So many clients of mine are never brought to court, even in front of Zoom because they're in isolation or quarantine at the jail because of COVID. The last time I went to Division 11 of the Cook County jail to see a client, the sheriff behind the desk said, “One of my fellow sheriffs here just died of COVID at the age of 31 after being sick for only a week.” I need to try to get my clients out of there. That meant that my workload was doubled.
In addition to all these new cases, we were trying to file motions for bond reduction on every single person that we had, and that's something that just continues. It's been incredibly challenging. I want to be better at what I'm doing and it's so heartbreaking when my clients call me and my phone rings through to my cell phone because we're not working out of the offices all the time.
My phone is ringing night and day and weekends and mornings and evenings, from people who are panicked and terrified and asking me to help them. I go down to Lake Michigan, about six blocks away, every morning, rain or shine, frost or warmth. And I just pray to God to help me.
For those of our listeners who want to join you in your prayers, would you want to name two or three things that you would ask them to pray for during the season?
Jeanne Bishop: I want them to pray for the prisoner and I want them to remember what Jesus said in Matthew 25, that when you visit the prisoner, you’re visiting me; these are the most terrified, lonely people on the planet, His prisoners. Every time I hear about where the COVID vaccine will go first to healthcare workers and then to nursing homes and then to essential workers like in the food production line and so on, I keep wondering where the prisoners are in that, because these are the people on earth. These are people who are locked into the room: you can't get out of that room unless someone with the key comes on the other side and opens that door for you. That's what it means to be a prisoner.
I think that's why Jesus had a special heart for them. So that would be number one. Number two, I would just ask them to pray for all the people who have been separated by distance from their loved ones, from the things that they love to do and, all the losses that we've suffered. Pray for strength and healing for them.
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