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Kagan on the Death Penalty

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I did not see this part of Ms. Kagan's testimony, but the AP reports it this way:


Supreme Court nominee Elena Kagan is reaffirming her support for the death penalty, saying its constitutionality is "established law."

Under questioning by Democratic Sen. Dick Durbin at her confirmation hearing, Kagan says she has a different outlook than her mentor, the late Justice Thurgood Marshall, who dissented in every death penalty case based on moral grounds.

Kagan says she believes the death penalty is "settled precedent going forward" and generally should not be disrupted.


Kagan is a smart cookie for sure.  She's supple and elusive without being off-putting.  Death penalty backers should not be too cheerful about Kagan's response, however, given that she appears to be describing the law as it exists.  The trick here is that the Supreme Court gets to change the law as it exists, and the Justices most willing to do so are the ones who, like Kagan, subscribe to the "living document" theory of the Constitution.

Still, Kagan's answer that the death penalty is settled precedent "going forward" was about as good as we were going to get, and at least slightly re-assuring.

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Subject: Diana Harrington, Sister of Theresa Gilligan


A family of four entered and surprised a burglar while he was ransacking their home. The perpetrator tied them up, tortured them, shot all of them
in the head and beat the gentleman with barbells so badly, a closed casket was inevitable.

This was my family….my 30 year old sister, Theresa and brother-in-law Pat, my 5 year old niece, Lisa and 4 year old, nephew Greg
(The Patrick Gilligan Family).

This crime was committed in 1980 and the criminal, Donald Ray Wallace Jr., sat on death row for 25 years claiming his innocence. Wallace was one of the longest death row inmates in Indiana and this crime still stands as being one of the most heinous in Indiana.

On March 10th, 2005, the sentence was carried out …. Donald Ray Wallace Jr. was executed for the cold blooded vicious murders of four innocent people ....
25 years after the crime!

I was not meant to be a spokesperson for my family's deaths nor was I suppose to fight to make sure their name remained first instead of the criminal. I did not intend, in my lifetime, to become adept at the process of death row appeals or victims rights.

I also did not ask nor choose to become a victim of violent crime. However, just like any victim of violent crime, who is forced into this situation, no one asks a heinous crime, such as this, to be part of their life.

....The day after Donald Ray Wallace Jr.s execution I sat down and wrote this letter. That next day it was published through Associated Press and was on the front page of every newspaper in Indiana and many more that I probably will never know.
On that Sunday, in the Indianapolis Star, it was published alongside Wallace's attorney's response. It was also picked up by many magazines. I don't know if it changed any minds but it certainly let everyone know how I stood on the death penalty and the taking of someone's life.

March 11, 2005

I woke up this morning, March 10th, to a beautiful sunrise. The sun was bright and clear and I thanked God I was viewing it. I then remembered the passage that I had read at the prayer service for my family...."One day at a time..this is enough. Do not look back and grieve over the past for it is gone: and do not be troubled about the future, for it has not yet come.
Live in the present, and make it so beautiful it will be worth remembering".

I was then saddened by the thought that there was a father that had just lost his son and sisters that had just lost their brother. It was a strange feeling but I did realize that what I had said for years was absolutely true. I did not hate Donald Wallace but I hated the crime he committed and despised the situation he had caused and I was angry about his years and years of media coverage and antics. I felt it completely unfair the sorrow, agony and pain that was placed on so many hearts.

Am I a believer in the death penalty... no. Am I convinced the death penalty is wrong.... no. I am convinced that heinous crimes should have quick and speedy punishment. The crime and loss of loved ones is enough agony that one should bear, much less the constant reminders of the criminal's appeals, protests and constant complaints of his rights and living conditions.

I am totally convinced that when a person has been proven guilty, beyond a reasonable doubt, that the rights of the criminal should be forever taken away. There was never any doubt that this person was guilty. He not only was sentenced in a court of law but confessed to the brutal crime. Guilt was never an issue. The appeals should have ceased, the rights should have ceased. It is definitely not inhumane to receive meals, medical attention, dental visits, counseling, clean clothes, warm surroundings and an education that is far superior then what is available for many of the average person.

As in a childs' punishment, time out is for sitting on a chair and reflecting what they did wrong. It is not an occasion to debate if the chair is too hard, or if the child should receive snacks or breaks when the punishment is being enforced. It is punishment.

In the same respect, when a prisoner has been sentenced to incarceration, it is not permission for them to take the podium and to protest for additional rights, more TV, free phone calls, more comfortable living conditions and better food. It is a time to reflect on whatever crime they have committed.

I find it hard to believe anyone on death row could find rehabilitation and find it even more difficult to imagine these criminals back on the streets. Even as I heard Donald Ray Wallace Jr. talk of his belief in God and his belief in not harming anyone, my trust level was not comfortable to even suggest putting him into the same situation as 25 years ago. What would the statistics be whether he would run away this time or simply fight and kill again. His track record was not good before this crime and certainly did not improve with the killing of four innocent people.

Do I have the answers.... no, I am just a victim. However, I am a victim with a voice. I am a victim that has endured too much pain, suffering and will never find closure in this man's death but will find closure in the memories of my family.

I am by no means the only victim of violent crime. There are thousands and thousands of victims in the world. We do have one voice however, and that voice is change.

Change in a system. A system that eventually proves that crime doesn't pay but what is the debt victims pay in order to arrive at the correct conclusion.

I ask the Governor, the State of Indiana and the Victims of Violent Crime to speak out. I also ask the pro death penalty and anti death penalty advocates to speak out. Instead of the millions spent on criminals, there should be a time limit on appeals, there should be a final decision if the death penalty should be carried out or not enforced. There should be a victims relief program not with any statutes and not with the enormous and ridiculous set of rules and regulations in order to even qualify. There should be a victims relief for years of support for the victims that endure anger, suffering, sadness and financial distress. Victims now receive nothing... not a penny. If victims need grief counseling it is out of their pocket, as well as, the expense of burying their loved ones. Any financial burden is placed on the victim which leaves them with more pain, suffering and financial distress.

The burden for the cost of the penal system and any victims relief should come from a self sustaining correctional process. It should not be unreasonable or any violation of anyone’s' rights, but a reasonable expectation, that incarcerated criminals be sufficiently productive to support the correctional facility, as well as, to provide relief to the victims, child support, etc.. This would end the victims and the taxpayers burden of supporting criminals over the many years of prison life. Perhaps it would be a greater deterrent to crime if a person knew they would be forced to work and not be allowed to keep the monies that they had earned...the price of their crime would then have a face.

There should be in no way the criminal's name remembered and the victim's names pushed aside. It should always be the victims first and the crime remembered rather than the perpetrator.

Sincerely, Diana Harrington, Sister of Theresa Gilligan

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