Crime and Punishment

Good morning. It’s Friday, August 24, 2018. On this date in 1979, two Las Vegas-based defense lawyers filed an emergency application for a stay of execution in the case of a Western outlaw and gunsel named Jesse Walter Bishop. “Stay of execution” is legal jargon, but in this case it was literal language: The state of Nevada intended to send Bishop in the gas chamber on Monday, August 27.

So the Friday before 39 years ago today a brief written hurriedly by attorneys Kirk B. Lenhard and George E. Franzen of the Clark County public defenders’ office was before of San Francisco judges of the 9th U.S. Circuit Court of Appeals to delay the case. Tony Amsterdam, the brilliant anti-death penalty advocate then teaching at Stanford Law School, argued the case orally. But Lenhard, Franzen, and Amsterdam all had the same problem: It wasn’t merely the overwhelming evidence against the defendant. Nor was it that their client freely admitted his culpability — and had pled guilty at trial. The biggest legal hurdle for the defense lawyers trying to save Jesse Bishop’s life is that Bishop had told anyone who would listen, including the trial judge, that he was ready to accept his death sentence.

A month earlier, I interviewed Jesse Bishop in a holding cell at the state prison in Carson City. Death penalty opponents were claiming that Bishop was either legally insane or suicidal. In truth, he was neither. Everyone who talked to him, including four psychiatrists and at least that many judges, found Bishop mentally competent and quite lucid, albeit fatalistic. His attorneys’ hope was that if they could stall the case, Jesse would change it mind. But that didn’t happen.

The issue before the 9th Circuit on August 23, 1979 was whether Jesse Bishop was legally sane. That wasn’t really in dispute, despite his rare and jarring decision to stop appealing his case. Bishop’s view was that it was absurd for legal scholars and death penalty foes to claim that execution violated the Eighth Amendment’s prohibition against “cruel and unusual punishment.”

For starters, capital punishment was hardly unusual when the Constitution was written — the Founders were referring to torture. As for the other component, Bishop argued that what was far more cruel than the gas chamber was America’s system of interminable delays and false starts for Death Row inmates.

“They want to force me to appeal, to wait just so the lawyers can play their games,” he told me. “I feel that’s cruel and unusual punishment.” He added, “I never asked for the death penalty. They gave it to me.” His position was clear: Authorities should either carry out the death sentence or commute it.

In the late 1970s, authorities had resumed executions after a hiatus brought on by a confusing 5-4 1972 Supreme Court ruling invalidating all existing death sentences. But two men had been executed since then, one in Utah and a second in Florida, and unless something intervened, Jesse Bishop was going to be the third in Nevada.

He had shot a man to death during a casino robbery at the El Morocco Hotel on the Vegas strip four days after Christmas in 1977. The man he killed, 22-year-old David Ballard of Baltimore, was on his honeymoon. Ballard heard a casino teller scream and ran instinctively toward her. He didn’t know what he was getting into. An El Morocco pit boss drew his revolver and exchanged gunfire with Bishop. When Ballard realized he was in the middle of a gunfight, he quickly retreated, but Bishop, whirling and firing instinctively, hit him in the back.

Forty-six years old when I met him, Bishop was a U.S. Army combat veteran from the Korean War who’d been wounded in the service and hospitalized in Japan. Today, we’d say he was caught up in the “opioid crisis.” In the late 1970s, we just said that he was a veteran who returned home with a Purple Heart and a heroin habit.

He became a robber and a dealer and a career criminal who hinted in his interview with me, and others, that he’d shot people before, presumably as part of the drug trade. He lived by an older criminal code and was fatalistic about its inevitable outcome. The system was trying to get him to barter or beg for his life, he believed. He wasn’t about to do either.

“Now they got me dead bang on a cold murder beef I can’t beat,” he told me. “I’m not going to turn to God, or to snivelin’ or snitchin’ or rattin.’ They got their gas chamber … they should get it over with.”

He never wavered. On October 22, 1979, Jesse Walter Bishop ate the traditional last meal — he chose a steak dinner — passed his compliments to the prison cook, and was escorted to the execution room in Carson City. The prison warden provided a telephone for Bishop’s use in case he wanted to call and seek a commutation or ask for a last-minute appeal. He did not reach for it.

Carl M. Cannon
Washington Bureau chief, RealClearPolitics
@CarlCannon (Twitter)

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