The Wild Winds of Fortune

The Mad Priest posted about the execution of Jeffrey Lundgren in Ohio this week. He asks three good questions, the last of which is “what good is killing anyone?”

In my comment to his post, I said I could go on for hours about capital punishment, but I wouldn’t. Not there, at any rate. But this here is my soapbox, and this issue has been a major concern of mine for years.*

I oppose capital punishment in all forms on religious grounds. However, I recognize that others may not have such beliefs, and I have met people who I otherwise respect who accept capital punishment “in theory.” And I recognize the damage that murder does to a community and the way in which capital punishment is seen as taking steps to repair that damage. (Whether it actually can or does is another matter.)

There are three reasons to support the death penalty: specific deterrence, general deterrence, and retribution. Specific deterrence, meaning that the individual who committed the murder cannot murder others if he or she is executed, is a morally supportable position, in my view. General deterrence, meaning that others will be dissuaded from committing murder if murderers are killed, sounds nice, but, absent other considerations, is not much more than the barbaric proposition that we should be willing to execute individuals to provide an example to others. Furthermore, studies have shown that general deterrence simply does not work.

Which brings us to retribution as a justification for execution. Whether or not you view retribution as a morally justifiable position depends a lot on your religious and world view. Personally, I have a very hard time reconciling retribution with the view that all individuals are made in God’s image and therefore are endowed with innate human dignity. I know others that feel, however, that not executing murderers somehow dishonors their victims. I would like to think that this country has moved beyond simple bloodlust, but I recognize I may be wrong.

All of that is in the realm of abstract moral reasoning.

However, the way capital punishment is practiced in America is capricious and obscene. Capricious, because the same murder in Detroit or San Francisco will land you in jail for the rest of your life, but in Dallas will end with you with a needle in your arm. (Accidents of geography occur on a much smaller level as well: a murderer in San Francisco is less likely to get the death penalty than the same murderer in Orange County, even though they are operating under the same set of laws.) Obscene because the risks of people being put to death who do not deserve t0, either by reason of incompetency or by reason of actual innocence, are so high as to create a virtual certainty that it will happen.

It used to be that proponents of capital punishment argued that the safeguards in the system would protect the innnocent. As that facade of surety has become more and more tattered, at least one proponent has recognized the inevitable. In 1997, Representative Bill McCollum of Florida stated “I don’t think there’s any question that someday somebody who is innocent will be executed in this country again.” McCollum went on to say that he believed capital punishment deters crime and helps victims’ families grieve.

So it’s okay to execute someone who is innocent as part of the larger war on crime. Aside from the fact that studies have shown that the death penalty does not deter murder, what does it mean when we say we need to execute someone to give the victim’s family “closure”?

That’s not justice, that’s blood vengeance.

It is so fatally easy to point to the monsters. John Wayne Gacy. Henry Lee Lucas. Ted Bundy. Danny Rolling. Surely, these men who brought such terror and grief to so many families should die. Everybody knows about these walking embodiments of evil.

But what of the other side of the coin?

There have been cases of police and prosecutorial misconduct, and cases where exculpatory information was kept from the defense. There have been cases of inept or completely incompetent (or in one case I have read of, drunken) defense counsel. And that’s not even touching upon the racial and economic inadequacies. (I think it is very telling that the prosecutors in the O.J. Simpson case did not even pursue a death sentence — they knew, given the sort of counsel he could afford, that they would not get it. Now contrast that with how they would deal with the average defendant accused of lying in wait to brutally stab two people to death.) Not to mention issues that potentially plague all criminal cases: the problems with eyewitness identification (widely used even though studies have shown it to be often inaccurate), use of jailhouse informants or desperate potential codefendants to obtain convictions, etc.

There is the question of competence. Not of competence to stand trial, which is an entirely different and distressing kettle of fish, but of competence to be killed. It’s an odd concept, I suppose. I guess as a nation we have enough decency to admit that maybe we shouldn’t put to death people who are too far gone out of their minds or too mentally limited to understand what is happening to them, although there are people who would argue even about that.

There is the case of Oliver Cruz. In 2002, the US Supreme Court ruled in Atkins v. Virginia that executing the mentally retarded constituted “cruel and unusual punishment”. They explicitly reversed a decision of only thirteen years prior, when they found that retardation was no bar to execution. This didn’t help Cruz, who had confessed to being involved in rape and murder, even though he had an IQ of 64, and the officers who arrested him testified he had no capacity to understand what he was doing when he waived his right to silence. The other evidence against Cruz was the testimony of a co-defendant, who had gotten a plea bargain. The co-defendant was not impaired — at least not mentally. To add the final sickening touch, the prosecutor argued that Cruz’s impairment made him more of a danger to society, therefore he should be executed. The jury agreed, and Cruz was executed in 2000.

A few years ago, the Supreme Court finally decided that executing the insane violated the Eighth Amendment’s strictures against cruel and unusual punishment. (Insert irony break here.) So far, so good. However, a few years later, the same court decided that it was permissible to forcibly medicate insane prisoners so they were sane enough to execute. One victim of this unspeakable decision was Charles Singleton, who was executed in January 2004 in Arkansas. Singleton, who had been diagnosed as delusional, psychotic and a paranoid schizophrenic, was given anti-psychotic medication so that he could be sane enough to be killed.

However, the bloody icing on the psychiatriatric-capital punishment cake came in 2004, in the case of Bell v. Thompson. Gregory Thompson had been tried and convicted of murder, and sentenced to death. His appeal was rejected. Thompson was scheduled for execution on August 19, 2004. In June, his attorneys filed a motion claiming he was incompetent to be executed (you can’t execute insane people).

The Circuit Court of Appeals reviews the evidence on this second claim. An intern for one of the judges finds a deposition in the original trial from a clinical psychologist that was extremely probative of Thompson’s mental state at the time of the crime. The deposition was not included in the materials sent from the District court, so presumably had not been reviewed by the District Court. The intern — who was a licensed psychiatrist — took this to his Circuit court judge, who reversed his opinion in the underlying case, thus sending it back to the District Court.

The state argued that the execution should proceed because the Circuit Court took too long to reverse its decision, and was precluded from rehearing it. The ultimate technicality.

The Supreme Court agreed. Which means a man who was quite probably schizophrenic at the time he committed his crime, who had incompetent counsel, who an appeals court said should have a new trial, will be executed because the Circuit Court’s decision that he should be given a new trial came too late and was technically insufficient. He currently sits on Tennessee’s Death Row — a stay of execution was granted earlier this year, and has not yet been lifted.

Then there is the issue of time. In Texas you get ninety days after sentencing in which to discover all possible evidence that might not have been brought forth at trial which could prove you are innocent. In Florida, you get all of six months. (Except for DNA evidence: in Florida you have two years, to submit DNA evidence, provided you did not plead guilty. So, if your attorney talks you into pleading guilty, but the DNA evidence exonerates you, you’re totally screwed.)

And it doesn’t matter why the deadline was missed, either: your attorney screws up his calendaring? Too bad. Doesn’t matter. You’re as good as dead. And in Virginia, until recently, there was no requirement that the court preserve evidence after a conviction — so they can destroy that pair of bloodstained scissors that was presented at the trial, to free up space in the evidence room . At least until the Supreme Court stayed the execution of Robin Lovitt in July, 2005. Virginia governor Mark Warner then stepped in, commuting Lovitt’s sentence to life in prison without parole — one day before his rescheduled execution.**

And it’s not just the Big Three (Texas, Florida, and Virginia) that have such restrictions: fifteen states have shorter time limits than Florida. Eighteen more have limits between 1 and 3 years. Only nine have no limits on the introduction of new evidence. All of this matters because at this point the average time between conviction and release for prisoners on death row is seven years.

These things matter to somone like Rudolph Holton. Holton spent 16 years on Florida’s Death Row, until DNA evidence exonerated him in 2003. He is certainly not alone. Since 1973, 23 people have been freed off of death row in Florida alone. In 2000, Governor Ryan of Illinois was so troubled that 13 men had been freed from death row in his state that he instituted a moratorium on executions.

There is a grim irony in all of this. Law and order types for years have been screaming about defendants walking free on “technicalities,” such as gasp! violations of a defendant’s Constitutional rights. They are perfectly willing to resort to technicalities not based on anything but a need for efficiency and “finality of judgment” and “closure” to kill people.

Because, of course, executing people who might be killers is so much more important than sparing people who might be innocent.

“Kill ’em all, let God sort ’em out” is not morally defensible legal policy.

Ah, but why not simply correct the abuses? Leave the death penalty in place, but change how it is administered?

Because the very existence of the death penalty creates pressure for it to be applied. Supposedly only for the most heinous murders, what qualifies as a capital crime seems to be expanding all of the time. In Montana, Louisiana, Oklahoma and South Carolina, sexual molesters of children face the death penalty for repeat offenses. (Thus creating an incentive for murder — if you’re going to be executed anyway why not kill the only witness and increas your chance of escape?) Who is to say where the line between “horrible enough to execute” and not is to be drawn? Do we really have the wisdom to say who deserves to die?

None of us is God. It’s about time we stopped acting as though we were.

* In 2000, I was so appalled by GW’s record on capital punishment while governor of Texas, I registered Republican to vote against him in the primaries. He had been extremely dismissive of any suggestions that there was anything wrong with the Texas death machine system of capital punishment — to the point where I figured he had to be either too stupid or too amoral and willing to play politics with people’s lives, and either case was unfit to be President. I think actually the answer may have been “all of the above.”

** Lovitt’s case is noteworthy also because his appellate lawyer was Ken Starr, the former special prosecutor. Even a conservative like Starr can understand the need for the death penalty to be carried out with the utmost care.