The Death Penalty in the 21st Century

Marc Racicot
This speech by the former Governor of Montana was delivered to a conference entitled “Capital Punishment in the 21st Century: A Community Dialogue,” held on April 15, 2000, in Lewistown, Montana.

In my view the criminal law does not punish in order to inflict suffering. It does not seek to redress violence for violence. It uses punishment to prevent the repetition of crimes. Our law pertaining to the death penalty in this case has been microscopically examined and reexamined to a seemingly endless series of court proceedings all across the land on at least twenty-one separate occasions in this case. Montana’s law has been found to be constitutional and appropriate as enacted and applied. Providing for the ultimate sanction is in my view by any measure within the authority of a free and moral people. It has been carefully and meticulously crafted and it has been thoughtfully and rarely applied when the unequal atrocity of an offense required it.

There is no deprecation of human dignity when a criminal is rightly convicted and punished. It is a demonstration that we haven’t lost confidence in our understanding of right and wrong, a shared understanding that serves as essential glue to any civilized society. It is not the justice we are called upon to dispense that condemns inmate McKenzie. It is his own voluntary and damning guilt that does so. He weighed what he desired against life itself and he chose what he wanted. The enforcement of the criminal law promotes respect for that which should be respected especially the innocent lives of others and every crime that goes unpunished in accordance with the law takes away from the safety and security of every other person’s life. What the application of clemency is about then is whether the circumstances of the case involving inmate McKenzie are so remarkable as to compel the logical conclusion that he is entitled to leniency in order to prevent a miscarriage of justice. Clemency has been requested and justified by inmate McKenzie on the basis of a denial of guilt.

As is characteristic of this entire case, inmate McKenzie’s plea and his proof are irretrievably inconsistent and lacking in persuasive force. I begin my analysis of this case by stating unequivocally as judges and juries have before me that I do not believe inmate McKenzie. He has been found guilty of two similar crimes, for which he accepts no responsibility, by overpowering and irrefutable evidence. Each of these offenses is so vile and vicious, it is hard to believe that any human being could deliberately and maliciously do what was done to Lana Harding and Barbara Stickhorn. He alleged at his trial for murder that he did not commit the crime but that if he did he suffered from a mental disease or defect. Inmate McKenzie has informed me and it has been confirmed by expert psychological evidence and analysis that he has never suffered from a mental disease or defect that would remove responsibility for an offense otherwise established. His defense at trial by his own admission was a legal maneuver born out of an inescapable lack of alternatives other than to confess one’s guilt.

From the day of inmate McKenzie’s arrest over 21 years ago he has been aggressively defended. There was at that time, of course, an instant revulsion because of the nature of the crime. It lingers still with the family and friends of Lana Harding. But outside the circle of her family and friends and in such a short period of time Lana Harding faded from the ongoing reality of this case. The only remaining identifiable person associated with that reality is inmate McKenzie. As a result, he has somehow become the object of empathy and compassion that in my mind rightfully belongs to Lana Harding. In the rush to defend the murderer we simply must remember that nice people have rights too. Based upon the applicable law all of the information available to me as described above, two decades of close involvement with the criminal justice system and my own thoughts and belief gathered throughout my life time I have found the right course to pursue with firm conviction and peace of mind and heart I find no basis on which to grant clemency. Accordingly inmate McKenzie’s application for clemency is hereby denied.”

That letter summarizes for me; it distills for me, two and a half decades of thinking in serious fashion about this particular issue. As a prosecutor, of course, I tried many cases that had the potential for a death penalty to be imposed. I disqualified a number of different juries but I would have to confess that working in that arena and advocating that cause was a great deal more distant to me than being engaged with an application for clemency and being involved in making a decision that you knew was so overpowering involved in another person’s life. As a result it was not easily done nor easily made. My own personal views are that a moral society can carefully delineate which circumstances impose the death penalty. I do not believe however that it must be an imperative in order for it to be moral. In fact, a moral people can choose a different course that does not involve the imposition of an ultimate sanction and I fully believe if it were my choice alone, if I could be guaranteed absolutely that there would be an opportunity to place those who have so seriously placed others at risk by taking a life on one or multiple occasions that they could be confined forever throughout the remainder of their natural life with absolutely no possibility of parole or being engaged again in freedom with others that would be an acceptable course to pursue. In fact it may even be my choice but I do not believe that it is immoral for us as a society in carefully circumscribed situations for the penalty to be imposed and I believe a morally free and democratic people can choose that alternative consistent with our expectations spiritually and in a secular fashion as well. Now it seems to me with that said it would be best if we had some time to talk about the issues as you see them and you understand them and you provide me with the opportunity for me to learn from your insights and understandings because as I mentioned this is an issue in my mind that never remains static.

I should probably address one other issue before that and that is the issue of my Catholicism and my spiritual beliefs and how seriously I take them. Let me begin with a preface and that is I am engaged in public service largely, I believe almost exclusively, because of my faith. Had it not been for what I learned at the elbow of my father and mother and if it had not been for the teachings I received growing up in the Catholic faith believing that there was a responsibility to give back in terms of effort or time or treasure or talent if you had it. Those two things however were obviously missing from my portfolio. You needed to be engaged in some fashion in being of service and that’s why I set about to try and be engaged in my community in that way. That’s why I sought political office. So my spiritual beliefs are absolutely essential to me and acting in concert with them is absolutely critical to my peace of mind, so I recognize that I have a temporal responsibility to comply with the law and I took an oath to comply with the law as it is, not as I would have it be, and I have defended that position at every point in time to make certain that I vindicate the imperatives of the law regardless of whether or not I happen to agree. I have never found an inconsistency between my beliefs and the law such that I had to choose and as a consequence of that to me the performance of my responsibilities although searing and although I would seek at every opportunity if I could to avoid it, have been consistent.

But let me share with you my belief in terms as to how I came to that conclusion. My typical approach to virtually any issue is to listen, first of all, and then to study as hard as I possibly can to learn all that I possibly can about a given issue. So, naturally, when I finally understood that these issues would be presented to me in real life terms the first thing I did was to read the Pope’s Encyclical and to take a look at the catechism of the Catholic faith and to seek some direction and inspiration and obviously as you may imagine, I glued those endeavors together with a great deal of prayer and tried to take the opportunity to quietly listen to what it was that I perceived to be my responsibility. What I found, of course, is that in the Pope’s Encyclical, the gospel of life, he provides for the following: it is clear that for these purposes to be achieved the nature and extent of the punishment must be carefully evaluated and decided upon and ought not to go to the extreme of executing the offender except in cases of absolute necessity. In other words, when it would not be possible otherwise to defend society.

Likewise in the catechism of the Catholic Church it states: “Assuming that the guilty party’s identity and responsibility have been fully determined the traditional teaching of the Church does not exclude recourse to the death penalty if this is the only way of affectivity defending human lives against the unjust aggressor.” Now you will remember that I just recalled for you the fact that four out of the six inmates who are on death row in Montana have been sentenced most recently for a homicide committed within a custodial institution. I should also point out to you that the politics of this situation meant absolutely nothing to me and I would offer as evidence of that fact the understanding that from the very beginning I have been a very strong pro-life advocate when addressing the issue of abortion. Sometimes people find my position to be very inconsistent but I would suggest to you in view of public opinion across the nation and in the state of Montana that a person who takes a position in reference, that I have, to the abortion issue, probably not reading polls prior to the time they take that particular position so quite obviously when I was dealing with this life issue as well, to me, whether or not it happened to be acceptable to a majority or not, in terms of political favorability, was absolutely irrelevant. What was relevant to me was to determine what the law is, what the facts were in this case, whether or not there was a miscarriage of justice and what my beliefs, my faith indicated to me was required under the circumstances. I recognize that there are differing views which I deeply respect and I also recognize that I am imperfect in my own capabilities and that I need to constantly be exposed to new opportunities to learn and to grow and as a consequence of that I am grateful for this dialogue. And my great hope is that we can continue to have thoughtful and civil discussions about such searing issues in order to allow for all of us in a civilized and thoughtful and spiritual fashion to come to the right conclusion about these very, very perplexing issues. So, with that, perhaps we can begin some conversations rather than a presentation that is only unilaterally presented in one regard.

Marc Racicot served as Montana’s governor from 1993-2001. He is currently a partner in the Washington office of the law firm Bracewell & Patterson, LLP, and the chairman of the board of America’s Promise–The Alliance for Youth.

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