Why I Support Capital Punishment (Almost) Never

Over the past twenty-four hours I've had a couple of events that have caused me to contemplate the death penalty and clarify how I feel about it.

One of them is that a friend of mine posted a link from the U.S. conference of Catholic bishops opposing it.  Of course I am not Catholic,  but I understand the concerns of the bishops.  However I had to disagree with the premise of her post, though in fact in most cases I would agree with her (and the bishops.)

The second of course, living here in Arizona, was the Jodi Arias sentencing case.  As many may know, a single holdout juror refused to vote for the death penalty, and as per state law that means that Arias, convicted of killing her boyfriend Travis Alexander will not be sentenced to death, but instead will spend the rest of her life in prison.

Let me state a summary, and then go on and clarify as to why I do not support capital punishment today, but if some specific problems were fixed then I could support it:

1. I believe that there are cases where capital punishment is warranted.  However, these cases are exceedingly rare, and I do not believe that Jodi Arias, as brutal as her crime was, qualifies.
2. I believe that the system is broken, both in terms of the number of proven errors that have been made, and in terms of the basic inequality of the justice system in which race, class and ability to pay are correlated with likelihood of being sentenced to death when convicted of the same crime, when in fact if the system was working properly these factors should have no such correlation.
3. Until the system is fixed, I do not support any further executions.  In other words, I favor a moratorium, and then perhaps a resumption only after these problems have been addressed.
4.  While it may be warranted in extreme cases, I do not buy the argument that it is any kind of a deterrent, will address prison overcrowding, or will save money (though 'saving money' would be a terrible justification for executions, even if that were true.)

First, when is it justified?  I believe that taking a person's life (assuming we are absolutely certain of guilt, which I will get to later) is only justified if the particular crime is so heinous as to completely be beyond the bounds of civilization, and further that it rises beyond ordinary human expressions of rage, violence, jealousy, passion or other kinds of reasons why murders happen, but maybe are not characteristics of a person who is a cold blooded killer.  In other words, premeditation must be a part of the murder.  Someone who gets angry and kills may need to spend the rest of his or her life in prison, but I don't believe that is a good enough reason to kill them. People can of course argue this point, but I do not believe a person who kills in a fit of anger but may regret it later is on a par with someone who coldly calculates what they are going to do and then does it.  

Between this sort of premeditation and the heinousness of the crime, I can name a couple of people who I believe should get or should have gotten the death penalty.  I would have given it to Charles Manson (but not to his followers, who were after all followers.)  Timothy McVeigh was executed for his crime, and rightly so.  The one case that really haunts me however happened in 1999.  My daughters were just about the age of Shawn Ryan Grell's daughter, Kristen Salem.  I still can hear a two year old child's terrified scream, 'No, daddy NO!!!' when she realized what he was about to do.  I don't want to say anymore about that here, other than the case was so horrible that it at one point caused a judge who had sat on the bench for 30 years to impose the one and only death sentence she ever imposed. Later it was thrown out on the technicality that the law had changed and required a jury to consent to a death sentence, but in 2009 it was reinstated when he was in fact sentenced by a jury.  The details if you have a strong enough stomach  to read them are here .  Grell's crime was so awful that a judge who sat on the bench for thirty years only handed down one death sentence in all that time:  his.   Put it this way:  I agree with the judge.  The death penalty is assessed far too frequently and it should be very rare.  But his is the rare case where I can agree with it.  Sitting on the bench for thirty years and ONLY opting for the death penalty for Grell?  That's about where I am on this.  Only very rare, and horrendously evil cases.

Beyond the requirement that a crime must be unthinkably heinous,  I also do not think the death penalty should be imposed if there is clear evidence that it is what the defendant wants. A good case in point is that of Major Nidal Hassan, who murdered thirteen people at Fort Hood in his pursuit of martyrdom on behalf of Allah.  Only an odd thing happened to Major Hassan. Instead of dying a martyr's death as he had planned, he was cut down by a policewoman whose bullet severed his spine, stopping his rampage and leaving him permanently paralyzed and in a wheelchair.  During the trial, it became very clear that Major Hassan and prosecutors were on the same page.  He wanted to be a martyr and die, and they wanted him to die.  His defense attorneys were in the ridiculous position of arguing a position that is based on the presumption that the defendant seeks to avoid the death penalty, even though in that case it wasn't true. The prosecution, much to the joy of the defendant, prevailed. He will be executed, rather than spending decades in that wheelchair having the daily reminder of what he did.  He thinks he will get 72 virgins when he is executed.  Whether he is right or wrong becomes a matter of blind faith.

The second point is that the system is broken, as evidenced by the number of innocent people sentenced to death. Quite a few years ago a man named Ray Krone, who had been on death row here in Arizona, was exonerated after DNA evidence proved he had nothing to do with the crime. His case was remarkable only in that he was the 100th person who had been sentenced to death, to be exonerated since the death penalty was reinstated in 1977 after a moratorium. Dozens more across the country have since been cleared.  By some estimates as many as 5% (or one out of twenty) people on death row may actually be innocent.  Even if it is lower than that, the number who have been proven to be innocent after being convicted and sentenced to die is far too high for comfort. It is true that there is no proof that an innocent person has actually been executed since the reinstatement of the penalty but there are cases such as Joseph O'Dell in Virginia and Cameron Todd Willingham in Texas in which it seems quite likely.  Of course prosecutors have vigorously fought any attempt to reopen cases of people who have already been executed.  But given the number of people who have been sentenced to death and later released after being exonerated it is statistically very likely that at least a few innocent people may well have been executed.  If we ever agree that this is 'acceptable' then we really are a morally bankrupt society, as death penalty opponents claim.

This leads directly into the third point, that the justice system is not an even playing field. The amount of money a defendant can spend on legal representation dictates the quality of defense he or she is likely to receive.  We all remember the O.J. Simpson murder trial.  Simpson, at the time a deep pocketed millionaire, was able to hire a virtual Who's Who of the nation's best lawyers.  The limited resources available to the L.A. County prosecutor's office just weren't enough to keep up with the demands of the case.  Simpson got off, as we may recall the words, "If the glove doesn't fit, you must acquit."  Further, even a moderately wealthy defendant can afford a good enough lawyer to probably avoid the death penalty (there are lawyers who specialize in just such cases and have a very good track record of helping their clients dodge the executioner's table even when found guilty.)  A good example is Judy Clarke, who is just now representing Boston bombing suspect Dzokhar Tsarnaev;  in the past she has represented Unabomber Ted Kaczynski, South Carolina mother Susan Smith (who drowned her sons,) Olympic Park bomber Eric Robert Rudolph and Tucson shooter Jared Loughner;  all were found guilty, as the defense is already conceding about Tsarnaev, but she helped all four of them avoid the death penalty.  If a suspect is convicted and sentenced to death, they can further appeal the sentence, to the point where strained county prosecutor's budgets just aren't there to play the game out. Even going for a death sentence is very expensive, and in an era of budget cuts for prosecutor's offices that may well explain why so many fewer prosecutors are even trying for it anymore than the number of cases where they used to.

However, the unequal playing field in which a very wealthy (or in the case of Tsarnaev, very notorious, who can bring out a lawyer like Clarke) defendant against a state with limited taxpayer supplied funds to spread around, is reversed when the resources of the state are pitted against an indigent or very poor defendant.  Often these people are represented by a public defender.  Now, don't get me wrong.  There are some very good public defenders (in fact Clarke herself is a former public defender, which is how she got the Kaczynski case.)  Some public defenders are true professionals who take their jobs very seriously. At the same time however, there are also some who are the opposite. There are some lawyers who are just too inept to be hired by any reputable law firm, and often end up as public defenders.  In 2000 the Dallas Morning news found that nearly one out of four death row inmates in Texas had been represented by public defenders who in the past had been disciplined for professional misconduct.  Often this involved things like sleeping or drinking on the job. Some public defenders haven't won a case in years.

Further, even if a public defender is committed to the job, he or she has a heavy workload (so not much time to spend on each defendant) and a budget that is even more limited than the prosecutor's budget.  It takes money to do things like run a DNA test or go interview a witness, and often the money just isn't there in a public defender's budget.  This may be one reason why for example, 95% of death row inmates in Alabama are indigent (page 8 of the link)  but no one would suggest that anywhere near 95% of the murders in Alabama are committed by indigent people.  The obvious next question is how many of them may in fact be innocent, but we are unlikely to know because public defenders typically don't handle appeals and none of them has the money for an appeal, even if they could prove incompetent representation at the outset.  Until COMPETENT legal representation WITH ENOUGH RESOURCES to do the job properly can be provided for everyone who can't otherwise pay, I can't with good conscience support a system where whether one is convicted and receives a death sentence may depend as much on income level as on actual guilt or innocence, or the details of the crime.

There is also a well-documented by now correlation between race and application of the death penalty, even when factors such as the specific nature of the crime, number of victims, aggravating factors, etc. are taken in to account.  In other words, in cases with comparable crimes. blacks are more likely than whites to receive the death penalty. While this study only compares blacks and whites, there are other studies that show that for comparable crimes minority perpetrators are more likely to get a harsher sentence (whether jail for jaywalking or death for murder) than the identical crimes perpetrated by whites.  How much of this is already explained by the previously noted correlation between income level and sentencing outcome is an open debate;  but it is unlikely that 100% of this difference is only due to that factor; so in other words conscious or subconscious racism could also play a role.

Beyond that, there are some arguments in favor of the death penalty that I find specious.  One is that it is a deterrent. However, most murderers, especially those who premeditate murder, expect to get away with it.  I've heard that from many people who would be in a position to know, including police officers. People who plan murder think they are smarter or shrewder and in most cases just don't expect to be caught. So the penalty is of little concern to them if they think they have a plan to get away with it.  Secondly, in many cases people who have for example, shot at people are later killed in shootouts with police. Now, there are probably faster ways to guarantee your instant death than pointing a gun at a police officer, but right now I can't think of one.  Clearly these folks don't care if they live or die, if they can just seize on the smallest chance of escape. And finally we have evidence it is not a deterrent;  states without the death penalty actually have a LOWER homicide rates than states that do have it.  I've even heard the counter argument, that in states with the death penalty the state makes life 'cheaper' so people are more likely to take it themselves.  I don't actually believe that, but there is a stronger statistical case to be made for that point of view than there is to be made for the argument that it's a deterrent.

Another of the what I consider specious arguments has to do with the well-documented problem of prison overcrowding. However, at least as of a couple of years ago the prison population was growing so fast that if you lined everyone on death row up against a wall and shot them tomorrow, in less than two weeks the prisons would be just as full  as they are today.  In other words, death row is an insignificant part of the problem.  I fully support prison reform, but that has to begin with non-violent offenders (especially drug addicts) who are in prison rather than in a treatment facility where they belong, as well as mental health patients who also should be getting treatment, not a prison cell.  But worrying about the vanishingly small number on death row in the face of a sizeable segment of the population that is behind bars is at best a diversion from what is a real problem of mass incarceration in America today.

This does however bring up the question of money.  Even though death row is a tiny part of the prison system, most states are in fact struggling under the burden of keeping this many people locked up. So the argument has been made that executing a prisoner frees up a bed and should reduce costs.  However, largely owing to the cost of appeals and obtaining experimental drugs, in fact it is more expensive to execute an inmate than it is to keep them in prison for life.  So still not a good argument for the death penalty, even if you think cost is a good basis for making this decision.

So for me to support the death penalty I'd have to see these problems addressed in a way that would make being subject to the death penalty applied in a manner that is fair and equitable. If it is applied in a capricious manner as it is now then I can't support it.  AND once the system is fixed, I would still only support it for very specific and unspeakably monstrous crimes, such as Grell ruminating on the idea while he drove around for nearly an hour and then burning his two year old to death. Which brings me back to Jodi Arias.  Apparently eleven of the twelve jurors supported the death penalty for Arias, but the twelfth refused to go along with them.  Well, I'm with the twelfth juror.  There is no question that Arias' crime, stabbing Alexander as many as 29 times plus a gunshot wound to the head, was as brutal as it was bloody.  It can be argued that she could have premeditated the crime, but there is also evidence that the two of them had sex shortly before the murder.  So do we know for sure everything that happened? Not absolutely. The jury that heard the evidence did convict her of capital murder. And I believe they were right to convict her.  But I do not believe that we can be sure that she didn't in fact, 'snap' (as she said at one point, though she certainly damaged her own credibility by changing her story several times.)  So I'm not sure that Arias' crime meets my own standards for when I could support the death penalty (see above: almost never, just not absolutely never.)  Her spending the rest of her years wishing she hadn't done it, is good enough.