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Kernan addresses conflicts on death penalty

Katie Kohler | Thursday, November 16, 2006

Joe Kernan made history by granting two death row inmates clemency during his term as Indiana governor – decisions that generated discussion during Notre Dame Against State Killing’s (NDASK) third guest lecture Wednesday night in the Hammes Student Lounge of the Coleman-Morse Center.

“The death penalty is a very serious issue,” said Kernan, an adjunct professor of political science and 1968 Notre Dame graduate. “It was life-altering for me.”

During a lecture entitled “The Reality of the Death Penalty’s Application,” Kernan spoke about the decisions he made regarding the death penalty while in office.

Kernan, who said he supports the death penalty in principle, opposed employing it twice while governor. He has said the death penalty should only be used in the most serious cases. When he granted clemency in 2004, it marked the first time in 48 years that a death sentence was repealed in the state of Indiana.

Kernan’s first death penalty clemency case involved a robbery and murder by Darnell Williams in 1986. According to Indiana statute, Williams was eligible for the death penalty after jurors found him guilty beyond a reasonable doubt of committing two statutory aggravators – a crime involving multiple victims and murder in the course of a robbery.

“When it came apparent to me that we were going to see this case, I called my staff together to see how to approach it and give it the scrutiny it deserves,” Kernan said.

Having never dealt with such a decision before, Kernan and his staff were faced with new obstacles.

“It became as sobering as it gets. It was something completely new to us,” he said.

Once the process began, Kernan sought counsel from University President Emeritus Father Edward Malloy, as well as other respected advisors.

“I needed to talk to people I had the utmost respect for to get their take on the issue,” he said.

Exactly one week before Williams’ execution was scheduled, Kernan granted him clemency in exchange for a life sentence without parole.

His reasons included proportionality of the crime, doubt about Williams’ role and personal competence.

With an IQ of 78, Williams tested just three points above the mentally ill IQ level of 75. The execution of the mentally ill is illegal.

Kernan said he was taught to recognize the death penalty as appropriate in certain circumstances.

“Through the process, I personally went through an analysis of my views on the death penalty,” he said. “I never gave it much thought before because it didn’t affect me.”

As Kernan reevaluated his views on the death penalty, he said one of his greatest advantages in the process was his “non-lawyer” status.

“My views were less rigid,” he said. “The issue had more latitude because we were all able to form our own opinions.”

The experience, he said, influenced the rest of his time as governor.

“It is a sobering experience to make a decision on another person’s life. Sometimes, it is just more difficult to be on the field than in the stands.”

Kernan granted the second case of clemency for Michael Daniels, who – with an IQ of 77 – lacked competency and reasonable doubt of his participation in the crime. In Daniels’ case, however, inadequate counsel was the biggest factor in his prior death sentence.

“There are always two sides to every story,” Kernan said. “Daniels’ difficult childhood made a difference in what he perceived as right and wrong. Childhood does matter and it was a great concern.”

Kernan also addressed the political perspective behind the death penalty.

“There is less fervor for the death penalty that there was five or 10 years ago,” Kernan said. “Now people have focused their attention on it.”

Kernan’s clemency decisions came at a critical point in his term as governor. With less than four months prior to the election, Kernan commuted Daniels’ sentence.

“Make no mistake,” he said, “there was election pressure from the political side about granting clemency that people said was suicidal. The decision was crucial because the odds of it not being well received were so high.

“I made the decision for me, not the election.”

Kernan praised Indiana for some of the recent reforms to make trials more fair and to avoid the death penalty. Rule 24, for example, created standards for competency of counsel and experience in capital cases.

“Indiana is blessed with great jurists,” he said. “I think it is because jurors are appointed, not elected.”

Kernan’s view on the death penalty hasn’t changed completely, he said, even after his direct experiences. He recalled a personal experience that affirmed his partial support of the death penalty.

Kernan’s “worst day as mayor” of South Bend occurred on Aug. 25, 1990, when a triple homicide in a local drugstore led him to believe those guilty of the crime “deserved to die.”

“I still find myself supporting the death penalty under extreme circumstances,” he said.

“I am more lukewarm, however, that I was before I went through this process. I am grateful to have gone through it.”

After Kernan spoke, his general counsel and close friend Dick Nussbaum gave input on his experiences.

“Graduating from Notre Dame helped me form my opinions on the death penalty,” he said. “We were the first people to grant clemency in years. Others will now follow our example.”

Nussbaum praised Kernan’s entire team in the success of their decisions.

“What makes me most proud is that we were ahead of the curve,” he said. “We started the process before normal, which gave us time to deliberate.”

The only way to change the law, Nussbaum said, is through the legislative process.

“Electing representatives that will change the laws is the best way to make a difference,” he said.

Kernan is a member of the Indiana Assessment Team of the American Bar Association’s Death Penalty Moratorium Implementation Project. This group is currently evaluating the need for a moratorium on the death penalty in Indiana.

The lecture concluded with a question and answer session, during which Kernan addressed how the Catholic faith affected his decisions.

“It is part of who we are. It is impossible not to impact us,” he said. “Each man had to look at his own soul.”

But, Catholicism wasn’t the only factor in his decision-making, Kernan said.

“It is not enough just to say your Catholic faith makes the death penalty wrong,” he said. “You need to find a way to come together with a good sense and a good will.”

Kernan encouraged students to continue their activism if they want to make a difference.

“Things like this can make the views of America known,” he said. “Just be thoughtful in all you do.”