Logic Times

Hang 'Em High

Posted by Phillip Gray, 1/31/06, 11:31am. Comments (1)

Price too High???

I read and re-read your column (always enjoy them) to see the topic. I admit my mental facilities are not as sharp as they were or should be. At first I thought it was a justification of the death penalty ... then before I sent my email off, I re-read it and maybe the point is merely arguing what the death penalty is. If it is the former, then please accept my comment. If it was merely the latter, then I wish the column dealt with the former. Nevertheless, please accept my ramblings...

I assumed that your premise is that those under the death penalty are in fact guilty and then from that premise, the essay sets forth reasons for capital punishment. I'll admit that I believe we have executed more guilty folks than innocent. But it seems this debate is rather one of "academic" value by assuming that we live in a vacuum or argue this in an idyllic society - where all death sentences are only for those guilty and our system is fair and corrupt-proof.

However, what seems devoid in your analysis is the simple fact that like it or not, there are innocent people on death row. If you cannot accept that fact, then the rest of this will fall on deaf ears and someone needs to call the Statistical Department of every major university - because we found another certainly to accompany death and taxes.

If one subscribes to a shaky utilitarian point-of-view, then jailing and executing an innocent person is acceptable (however, I then would think that would fly into the well laid-out killing v. murder distinction/argument by you ... as the State would be executing an innocent person - thus, murdering the person - at least in a moral sense). If the State is executing innocent people - then the death penalty is certainly hypocritical. Not in the mealy-mouth Mike Farrell reasons, but if execution is the right and just punishment for a murderer, then the State executing innocent people is hypocritical as it does not carry out its stated purpose. It punished an innocent person and allowed the guilty to roam free. A high price indeed!!!

Case in point - while there are many broad examples in this essay and in the comments to justify execution - in NC, we recently had a high profile trial two years ago, where a man spent 10 years in prison, the majority of it on death row. Problem was the DAs violated several court orders in failing to turn over Brady materials. In Brady v. Maryland, 373 U.S. 83 (1963), DAs are constitutionally required to disclose to the defense evidence favorable to a defendant which is either exculpatory or impeaching and is material to either guilt or punishment. Evidence is "favorable" to the defendant if it either helps the defendant or hurts the prosecution. These disclosures are required even if the defense is too dense to ask for them. The DA convicted Gell on the testimony of two teenage girls that swore the saw Gell pull the shotgun's trigger killing the victim. What the DA failed to share to the jury (obviously) but more importantly failed to share with the original defense team was a secret recording of one of those girls who did not answer when her boyfriend asked her twice whether Gell killed Jenkins. And the girl stated that she had to "make up a story" about Jenkins' death. Further, the DA failed to disclose the identity of witnesses who saw the victim alive after Gell was already in jail on an unrelated matter making it difficult to kill someone when you're locked up). Also, the gun and other items were recovered not from Gell, but based on the girls disclosure. Oh yeah, the girls reached a plea bargain and they had to testify against Gell.

Ten years later - Gell walks out a free man - clearly, an innocent man was sent to his death. The States process was hypocritical (attempting to execute an innocent man AND allowing the two girls that admitted WERE present at the killing skated with only a few years in jail ... obviously, the death penalty not sought after) and down-right intentionally deceptive (the actions of the two DAs) and reckless (the State arguing that Gell got a fair trial and was guilty after all the DAs acts were known).

And if the process was "faster, more efficient", an innocent man would have been executed. Gell's acquittal was less than two weeks after Darryl Hunt was cleared of all charges in a 1984 rape and killing in Winston-Salem. Hunt, who was found guilty of the murder of Deborah Sykes at TWO jury trials, was freed in December after a DNA test pinned the crime on another man, who has since confessed. DNA testing that was not available at the time of Hunt's jury trial and sentence to death row. The day Hunt was released the North Carolina Supreme Court overturned two other death sentences - one a new trial and another new sentencing.

What does all this mean - in cases of clear guilt, it is easy to make the case for capital punishment. You can find or create the most heinous situations (your point on molestation is well put and the Tookie facts are damning as well). However, when you consider the real-life cases I cited above, it throw this "we need to execute and we need to do it more efficiently, faster and without these time-consuming, expensive gosh-durned appeals" a nice curve ball. Because in Gell's case, it took a decade to unravel the DA’s willful cover-up.

Also, science progresses to allow us to answer several questions - namely DNA advancement. If an efficient, faster execution is in place - how many more innocent people will be executed? How many poor defendants are denied by the Courts the ability to have their DNA examined to prove their innocence? (And yes, I'm aware of the VA case where a defendant was executed and DNA tests were run years, decade later and confirmed his guilt.)

Another point that is missed is the financial disparity between the State and most of its accused. It’s always nice to see a rich person on trial and is found guilty. However, the real problem is the State does have numerous resources at its fingertips that simply eludes most defendants. In Gell's case, the State used its coroners and other technicians to testify on behalf of its employer - the State. It took a law firm willing to front several $100K to counter those assertions, paying for the science to give CSI-type incredible and explosive testimony regarding time of death, etc. Had it not been for the generosity and tenacity of that law firm during one of those inconvenient appeals, Gell would not have won a new trial and would not have had the opportunity to allow a jury to see all the evidence the State so craftily hid from the original jury.

Last (I know I'm long-winded), one other biblical story that can support a reasonable view on how a Christian (dare I say, Christian society???) may be opposed to execution: John’s gospel (John 8:3-11). Clearly, under the Jewish law the woman was rightly and deservedly sentenced to death. Christ intervened ... did not condone her lifestyle which led to the death sentence and offered forgiveness. I know this passage could also bolster your argument re individuals v. governments.

But I also throw in the old adage, how you measure the morality of a society is how it treats its poorest of the poor or most vulnerable citizens - who is poorer or who is the most vulnerable than an innocent person waiting to die at the hands of the State?

Thanks for the column and the thoughts it provokes ... this debate, regardless of which side ones falls, is important to have and thanks for fostering it.

{Aslan: Paul, thanks for the thoughtful response. To begin, I will admit this column has a split personality. I felt it necessary to defend the legitimacy of the death penalty before moving on to what I consider an appropriate use of the death penalty (child molestation). One aspect of defending the legitimacy of the death penalty was to discuss how it defines standards, which becomes the basis for my suggesting that we should execute child rapists/molesters.

Next, you make a critical point about the flaws in our judicial system. However, we cannot make law to accommodate our inability to enforce law. Laws are social morality incarnate and are supposed to represent an ideal. If incompetent prosecution of crimes dictated the structure of law, we would have to step back from most punishment as posing a great risk of injustice. Now, certainly the finality of the death penalty makes the issue of injustice more critical, but it does not change the ideal.

Further, it is not a one-sided innocence equation. If, in your eagerness to achieve an unachievable standard of perfection in punishment, you cause more innocent people to be murdered and more children to be raped, you have spared an innocent at the expense of more innocents. And in this equation where the innocent accused represent very small numbers and the innocent victims represent a much larger number (i.e., the lack of deterrence across 291,000,000 people resulting in many murders, rapes, etc.), one might reasonably live with the lack of perfection in the system.

All that said, I acknowledge two overwhelming points made by you and by Peter Bland (here), that innocent people would be executed and that the punishment is so poorly administered as to water down deterrence. Without addressing these points to the satisfaction of reasonable people, my proposal is DOA. Conceptually, however, I believe the point stands, and it is this: if we knew with certainty that a child molester/rapist was guilty, that person should be swiftly executed. For this person, the characterization of "poorest and most vulnerable" does not apply (they have savaged the "most vulnerable"). The challenge before us is to get to that statement of value that places eradication of child sexual abuse at the top of society’s list.

P.S. I appreciate the Biblical reference, but I think that very much supports that distinction Christ often made between personal judgment and social law.}

Comments

1: Keith Krauland

February 6, 2006 8:02pm EST

He never actually argues that the death penalty is inherently wrong. His argument appears solely to be one of having the death penalty without the proper legal structure behind it to make sure it is applied the way it should be, namely with great care in the face of overwhelming evidence. All his argument does is to show that our legal system (like all legal systems) has flaws either due to incompetence, greed, or maliciousness or loopholes in the law. But the same can be said for any sort of punishment; that does not mean there is anything inherently wrong with the punishment though. Moreover, his assertion near the end of his piece where he says proponents of the death penalty do not want appeals is silly. We are not suggesting that we do away with the appeals process, we are suggesting that the Death Penalty loses its power of deterrence as well as its justice when we allow criminals to sit in prison for decades after having been convicted and being permitted to make as many appeals as they want to (which are paid on the public dime) despite the level of hard evidence that shows guilt.

P.S. John 8:3-11 is not a condemnation by Christ of the death penalty. The meaning of that passage is more along the lines of discouraging false righteousness that one has when he personally condemns someone of a crime. He already admitted it in his argument but t felt important to bring up.

Great site by the way.

{Aslan: An important distinction, Keith. The main issue in Phillip’s challenge is that the haphazard application of death penalty laws makes that punishment – however, theoretically appealing – functionally unethical. It would seem to me, however, that in such an instance, it falls upon society to fix, not weaken, the punishment.}