Cruel and unusual 

How the justice system failed Barry Beach

Let us say, for the sake of argument, that Barry Beach murdered Kim Nees in Poplar in 1979. We did say as much in 1984, when a Roosevelt County court found Beach guilty and sentenced him to 100 years in prison without the possibility of parole. As Montanans, we have commissioned such courts to do our justice for us, and so we must say that Beach is guilty.

We briefly changed our collective minds in 2011, when District Judge Wayne Phillips granted Beach a new trial. We said we needed to reconsider, and for 18 months he was free. Then, on May 14, the Montana Supreme Court overruled Phillips and sent Beach back to prison, where he will probably spend the rest of his life.

So let us say that Beach killed Nees. That's the way murder works: You have a body, and so you need to send someone to prison. That was the approach that Louisiana detectives took in 1983, when they arrested the 20-year-old Beach on misdemeanor charges for taking in his 14-year-old stepsister, who had run away.

Those detectives believed firmly in the murder-needs-a-murderer approach to crime. They had their own local murder to solve, and they interrogated Beach for three days before he confessed not only to killing Nees, but also to killing a Louisiana woman named Kathy Wharton.

A judge invalidated that part of Beach's confession when it was contradicted by evidence. Later that year, the same detectives extracted a confession to the Wharton murder from two other men, who served 24 years before they were exonerated by DNA evidence. We cannot know whether those detectives coerced Beach, because the tape recordings and notes from his interrogation were destroyed.

But let's say we do not care about that. Let us say that even though Beach confessed to killing Wharton—a murder he could not possibly have committed—during the same interrogation where he confessed to killing Nees, and even though the men who interrogated him went on to extract false confessions from two other people for the same crime later that year, we do not believe he deserves a new trial.

Again, we did say as much on May 14, through our duly appointed agents in the Montana Supreme Court. After convicting the 22-year-old Beach of murder, leaving him in prison for 29 years and then letting him out for 18 months, we are putting him back in jail. Justice, as we say, has been done.

click to enlarge PHOTO BY CATHRINE L. WALTERS
  • photo by Cathrine L. Walters

And what has been Barry Beach's experience of the system we say is justice? When his classmate at Poplar High was murdered, police in Roosevelt County interrogated him along with several other local boys. Years later, when he got picked up for contributing to the delinquency of his stepsister, different police interrogated him for the same murder until he confessed. A court gave the report of that confession more weight than Beach's denial, and then, three decades later, another court dismissed evidence he deserved a new trial as "hearsay."

So let's say that Beach is a murderer, since we have already insisted so at considerable cost to our dignity. Even given the awfulness of what he did when he was 17, is it justice to imprison him for three decades, set him free for a year and a half and then send him back to prison again?

I would say that is cruel. It is certainly unusual. I would never say that Barry Beach killed Kim Nees, because I do not have enough evidence to know either way. But there is substantial evidence to say that the state of Montana has done something to him that it should not do to anyone, for any reason.

But when all is said and done, we said that Beach killed Nees, and we did our justice. We put him in a cell for 30 years, let him out for 18 months and then put him back. It doesn't matter whether we say Beach is guilty or innocent now, because the Supreme Court has had the last word on our behalf. Barring a long-shot federal appeal or an executive pardon, Beach will spend the rest of his life in jail, turning over a slightly fresher memory of freedom than the other men we sent there 30 years ago.

Barring an executive pardon—that feels good to say, doesn't it? It suggests that even if we made a terrible mistake in saying Beach was guilty, we could still take it back. It says that even if Beach did kill Kim Nees, the awful thing we have done to him might still be undone, with a three-decade punishment already served.

We good people of Montana do not have to say that we put a kid in prison on thin evidence, let him out as a middle-aged man and then put him back again. We could still do justice to Barry Beach, murderer or not. All Gov. Steve Bullock has to do is say the words.

Dan Brooks writes about about politics, consumer culture and lying at combatblog.net.

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