Capital Punnishment

NOTE: I've written this an re-written it, three times in total, and it's still a disjointed, disorganized mess.  What can I say? It's a complex issue with a LOT of considerations to balance.  BUT, I'm just going to post it as-is becuase there's other things I want to write about, and if I let it go too long, I'll never get around to putting this up.

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Although I did not intend for that one throwaway comment in my Casey Anthony post last week to turn into a death penalty discussion, many thoughtful, principled and pragmatic comments about the death penalty ended up in the comments section as a result of it. And, after reading them, I was motivated to do a little digging, a little exploring of the issue, and maybe clarifying both to you all and to myself where I really stand on it.


Although politically ironic, but from my own POV logically consistent, my position on the Death Penalty, as a general practice, is almost a perfect mirror to my position on abortion. With abortion, I feel that the practice is completely immoral in all cases (yes, you read that right) where the life of the mother is not in immediate jeopardy.  BUT, as this is just my opinion - and since I don’t share the Right’s mental illness that compels them to force everyone else to live according to their opinion - I have no desire to see abortion made ILLEGAL, just becuase I see it as IMMORAL. With Capital Punishment, it’s kind of the opposite: I do not oppose the practice on general moral grounds. BUT… as a PRACTICAL MATTER I do see much that is wrong with how we go about administering it. So I never cheer-lead for it, as some do. And I do see a reduction in executions as a good thing. But I stop short of a complete abolitionist stance, based on moral objection.

This puts me immediately at odds with posters such as jlarue, who feel it is simply an immoral practice. And you know what? You’re absolutely right. I’ll concede on all moral points right now: It’s wrong. And yet, I still feel the way I do. And, going back to the abortion parallel, I’ve never heard an argument, EVER, that convinced me that abortion was ever morally justifiable (in any case in which the life of the mother was not in imminent danger.) But again: What we believe to be moral and what we will support the legality of are not always the same. This happens to both Liberals and Conservatives, and hits me up from both sides of both of these two issues. The bottom line is that the execution of someone who has taken the life of another? Just does not bother me enough to change my opinion. If that makes me a bad person? Then so be it. For what it’s worth, I concede the moral high-ground to your admittedly more principled position. 

(Just an aside: In admitting that being “pro-death penalty” - one of a very few Conservative positions that I hold - is a moral failing on my part, it’s funny to me just how many Conservative positions in general (almost all of them, in fact) can be described that way.)

So… morally I concede, though that doesn’t change my position. What about those practical concerns? The administrative details?

Poster ClassicLiberal gave me a pretty good quote, about how “the government can’t even keep potholes filled” so he’d not going to trust them with such grave matters. That’s a nice sentiment, and while I have no intention of arguing that the practice is air-tight, I will point out that this is the same basic argument that Conservatives use to argue against a Nation Health Care system, so you’ll have to better than that. Fortunately, he did: The politicization of the Judiciary.

Now, I hear you when it comes to the ELECTION of judges. Hoo-boy, that’s a HUGE problem. And it affects so many aspects of our society. There’s just SO MUCH worng with that, in particular the very perversion of our Democracy that you describe the pro-industry and pro-corporatist groups doing. But, much as with our disagreement on filibusters, it still sounds to me (rigth or worng) like you are opposing a practice IN GENERAL because of how ONE GROUP has decided to abuse it. (And let’s please take up the filibuster/reform issue again another time, because I’ve been sitting on a counterargument for your loast post on that for like a year now,  but just haven’t felt like writing about it.) Anyway... IN THEORY, the election of judges shouldn’t be done on Political grounds. Of course, that’s gone completely by the wayside, but I’m not sure what else we should do. APPOINT them? To LIFETIME terms? NFW. And as counters I submit that Federally appointed Circuit and Supreme Court judges are every bit as politicized as local judges, and there’s an additional problem: WE CAN’T EVER GET RID OF THEM! What’s more, the judiciary is meant to act as a counter-balance to the Legislature and the Executive branch. But how will we get that when the judges are nominated, confirmed and appointed by the very bodies they’re meant to be opposing? I’ll see you and raise you two Scalia’s and a Thomas that this is a much worse way to go. This way, electing them? If a judge REALLY SUCKS? The will of the people, and the power of Democracy can be mustered to fix the problem. I just cannot belieev that because industry and corporations pervert Democracy, this is a reason to scrap the practice. Much as with terrorism, we must RESIST those forces, not allow them to trick us into dismantling our Democracy. If you have a third alternative, I really would like to hear it, but the immediate alternative, to me, seems like it can only be worse.

But it bring us to the crux of the matter, at least for me: Has this politicization, inefficiency, prosecutorial maleficence or any other factor actually led us to execute an innocent man?

Unlike Conchobhar, I have not served on a jury. In fact, I’ve only been in court three times in my life: Once when my parents finalized my sister’s adoption, once for a traffic ticket and once when I was being sued. (I won, if you’re wondering.) (OK, and I was called in for jury duty once, but I wasn't selected.) And our history, much like the UK’s, is rife with examples of officially administered injustice. And convictions are overturned ALL THE TIME when examination of the DNA evidence after the trial completely proves, beyond any doubt, that they had the wrong guy. (Remember: With a match, there’s STILL a 1 in 20 Million chance you’re wrong, but with a MISMATCH? Unless the lab-tech bled onto the sample, you KNOW the right answer. )

And you certainly have a good point, arguably THE point, when a verdict comes down to nothing more than which witnesses appear more credible: The guys who’s facing life or death and is on the stand for the first time in his life, facing a suspicious and skeptical jury; or the career law-enforcement officer (and trusted, heroic public servant) who’s in court every week, has testified hundreds of times and faces no personal or professional risk if should the case go one way or the other. And because “real-life” is never as neat and clear-cut as Television’s CSI shows, perception will thus determine reality. And that’s a huge problem, as matters of perception and personal feelings inevitably end up being given a weight disproportionate to their accuracy or value.

But there’s another side of that perception vs. objective evidence coin. It has been suggested that the preponderance of legal shows like CSI, Law and Order, etc… has had the effect of making us more skeptical as a people. That juries expect cases to look a lot neater and air tight before convicting. Now – I don’t KNOW if that’s true. Admittedly, I can’t find the original piece I had read. (I think it might have been a Slate piece.) And for all I know it could have been written by a disgruntled prosecutor who just came off of losing a big case. But as useless as anecdotal evidence is, case like Anthony (and O.J. Simpson and many others in between) do see, to suggest that there are juries out there for whom “erring on the side of caution” means an acquittal, when in doubt. Which… is exactly as it is supposed to be!

As I looked into this, I came accros a few other things, that can be interpreted in different ways…

For the years that I could find data for reasonably quickly (2006-2009) there were 186 executions in the U.S. In that same time period there were 65,642 murders. Now, committing the same error as when they calculate the divorce rate, that works out to a 0.3% execution rate for murderers. I find the size of that number – being so small – striking in a few different ways. If were trying to be a “tough-on-crime” Right Winger (never! LOL) I might cite this as evidence that we need to DO MORE to prevent violent crime. (NOTE: I’M not saying that. I’m just saying that you could imagine someone making that argument.) A death penalty opponent might use it to point out that very little would change if we DID eliminate the practice: It would result in an almost imperceptible uptick in prison populations, in exchange for KNOWING we NEVER executed an innocent person. Which is a pretty good trade off, I must admit! And a moderate supporter, like me, looks at it and is inclined to view it as a relatively small problem: 1 execution for every 357 murders? I don’t know. I guess I just thought it would be a LOT higher, by at least an order of magnitude. (BTW, my numbers were taken from a few different sources, which is why I haven’t linked them. If you have different figures, I’ll freely admit that I just grabbed the first set of data I could put together.)

I also found that, due to the (thankfully) small number of people we execute, trying to determine what kind of “deterrent” effect this has, if any, is impossible. One rather disturbing study showed that there’s only a discernable deterrent effect is places with very high execution rates. Meaning that, for this to work, we got to start executing MORE people. I might support the Death Penalty in theory, but putting that kind of reasoning into practice is just psychotic.

But putting aside any “benefits” we might see, no one should accept the possibility of executing an innocent man. So I did some poking around, looking first at overturned convictions. Of course, there are TONS of stories out there, and an interesting (though rather incomplete) list could be found on Wikipedia. I went through this list, trying to focus only on case where physical evidence exonerated the suspect, rather than them just being posthumously pardoned or something like that. (Where there was doubt of guilt, but not proof of innocence.) And there certainly is no shortage of cases where people sat on death row who were UNDENIABLY innocent. And one can certainly look at all of these MISTAKES and argue that such an imperfect system simply cannot be trusted. BUT… every conviction that gets overturned is also evidence that the system WORKS – that if someone is innocent, then the truth will come out. That may sound weak to some, and I’ll gladly admit that I’d feel better if we got it right the first time, every time, but it is significant that there ARE so many self-correcting mechanisms. The imperfection is mitigated by the fact that we recognize it.

BUT… Do they work? Was there ever a case where we KNEW we executed the wrong guy?

Well… A couple of names on that list jumped out at me.

First, there was Charles Hudspeth. He was hanged for the murder of her lover’s missing husband, who was found – ALIVE - a year later. Thing is? That was in 1892! And I have a hard time imagining a scenario like that happening today. So… it’s an EXAMPLE, but I’m not sure it’s still relevant. We’ve made SOME progress in the last 120 years.

There was also Sacco and Vanzetti, two Italian Anarchists convicted in 1920 in what many considered to have been a show-trial, rife with anti-Italian prejudice that was more common then than it is now, and executed in 1927. But at this point it’s impossible to PROOVE that they were innocent. A bad conviction? Well, Governor Dukakis certainly thought so, when he pardoned them in 1977. And I AM inclined to agree with him. But a definite “execution of the innocent?” Impossible to say.

Going from there to the wrongful execution article, I found a few more examples. There were several from the U.K. and Australia, but nothing from the U.S. The closest was Ellis Wayne Felker, who’s DNA evidence was re-evaluted after his execution. Butthe results we’re found to have been “inconclusive.” And that’s too frustrating. It’s not that I’d celebrate an innocent man being put to death, but putting aside that absurd result from 1892, at least ONE BONA-FIDE example of the State executing an innocent man would pretty much change me over to the abolitionist camp. That’s it. Just one. There are many cases where there has been doubt of guilt – and I DO NOT support the Death Penalties use in case like that – but so far no indisputable examples where we can prove innocence. And that means that it cannot be PROOVEN that our system is so profoundly flawed.

There was a case like that that got my attention many years ago, and that became very emotionally involved with.

The suspect’s name was Roger Keith Coleman. He was a coal miner in Grundy, Virginia, not far from where I was going to college at the time. And based on what the media presented at the time, I was convinced was innocent. Oprah had him on her show, and I found him to be very persuasive. At a minimum, the questions he raised and the apparent incompetence of his lawyer suggested that a new trial was appropriate. And he might have gotten one: Had that very same, publicly appointed lawyer, not filed his appeal ONE DAY AFTER the deadline to file had expired. Which, IMHO, pretty much speaks right back to that Public Defenders own incompetence! In any case, I was convinced he was innocent and beyond that convinced beyond any doubt that his original trial was flawed. But Virginia’s piece of shit Governor at the time, Democrat Douglas Wilder, (sorry, I really HATE that guy, and so does DW) refused to grant clemency, a even stay to allow the appeal about the appeal to go though. Coleman was executed and on that day I was convinced we had executed an innocent man. 100% convinced.

So, a decade later when Republican Governor Mark Warner decided to re-open the case and examine the DNA evidence which had NOT been presented at trial, I followed the story in anticipation that Roger Keith Coleman would finally be exonerated. Instead, the DNA evidence put him at the scene of the crime. He was lying. FUCK. I was angry, not so much because I WANTED to have seen an innocent man put to death, but because I had become so emotionally involved with his story. I got “sucked in,” if you will, and he was nothing more than a liar, and a murderer.

Anyway, I realize that our system of justice is imperfect. All of those overturned convictions DO point to mistakes of ALL KINDS being made. (Though over-zealous, political-motivated prosecution seem to be at the heart of many of them.) But saying that something COULD happen, is different form saying that it HAS. Finding errors, and the potential for errors, and FIXING THEM when they are found suggests that we have to have safeguards in place. Are they adequate? It’s a hollow sentiment, but so far? In this country? They appear to be.