The Death Penalty

Killing time

September 25th 2011

 The main problem with the Troy Davis execution wasn’t that the man was almost certainly innocent of the crime he was being killed for; the problem was that no civilized nation should have the death penalty in the first place.

I’m not going to discuss the particulars of the Davis case. If you somehow haven’t heard about it, there’s a million places on the web to find thousands of different opinions, pro and con.

Instead, I’m going to discuss the guilt or innocence of the people who murdered him. That would be you and me, since it was done in our names.

Troy Davis is far from unique. There are 140 men walking free today who had been on death row, found guilty of a capital crime by twelve peers on a jury and sentenced by a judge. Through the work, not of the justice system, but legal volunteers, mostly in the Innocence Project, all 140 men were saved from execution by proof that they did not commit the crime. Witnesses lied. Cops fabricated evidence. In some cases, everyone was simply mistaken. Cops, anxious to close a case that was stirring public passion, arrested someone who might plausibly by the suspect, and witnesses, anxious not to have to spend months on the case, testified with far more certainty than they felt.

It’s bad enough when someone gets five years for a theft he didn’t commit. That right there is a catastrophic failure of the justice system. But to kill someone for a crime he didn’t commit?

Those 140 are the lucky ones. Proof of their innocence emerged, and outweighed any evidence of their guilt. For an unknown number of other inmates on death row who were unjustly convicted, no DNA samples have turned up, no witnesses have recanted, no inmate in a prison a thousand miles away has confessed to the crime. All these people can do is hope against hope that something turns up before the needle is plunged into their arms, knowing that without proof of innocence, the state will find it more convenient to kill them, and yammerhead politicians in the outside world will clamor for their deaths so they can appear “tough on crime.”

This in a system where, on paper, the accused is not required to prove innocence, but the state is supposedly required to furnish evidence of guilt “beyond a reasonable doubt.” It isn’t enough to show that someone could have committed a crime because they can’t prove they were at home watching TV when it happened; the state has to show actual evidence that the person was at the scene of the crime. Motive, means, and opportunity. Without that, there is no case. It’s the very least anyone accused under American law of so much as jaywalking can expect. Or should expect.

Even worse are cases where someone has not actually committed a murder, but under the law is “an accomplice to a capital crime.” There are cases extant in the system where the person who actually committed the murder is doing twenty years for the crime, but the person who drove the getaway car – sometimes unaware when doing so that a murder had even taken place – is on death row. The reason? Cops offered a deal to the gunsel: plead guilty, finger others who were involved, and get a plea bargain. But the public is clamoring for someone to die for the crime, so the accomplice gets the death penalty. All perfectly legal under some American state laws. How Kafkaesque can you get?

How can the standard be so low in death penalty cases?

Part of the problem is that over the past 30 years or so, Americans have come to see courts as places of punishment, rather than adjudication. The unstated presumption is that if someone is in court, then they’ve already done something wrong, and the role of the court is simply that of determining punishment. The public simply doesn’t know how to come to grips with findings of “Not guilty”; they assume that slippery trial lawyers used some sneaky technicality to “get that criminal off the hook.”

Because of that, the entire court system, once one of the finest in the world, has been pressured to make it easier to find guilt, and make punishment more certain. “Three strikes”, mandatory sentencing, and ever more draconian laws and rules of evidence have seen to it that American courts are little more than processing stations for the vast American gulag. It’s no surprise that America has more people in prison than any other developed nation on earth, including China.

Racism plays a big role. People read “To Kill a Mockingbird” and like to tell themselves that Tom Robinson’s trial in Alabama was abnormal and couldn’t happen here (‘here’ being anywhere outside of the deep South), but the fact of the matter is that five days a week, fifty weeks a year, hundreds of Tom Robinsons go to jail each day because the jury looked at the man rather than the evidence, and presumed guilt. Some go to death row.

It is safe to assume that one in three prisoners aren’t guilty of the crimes they were convicted for, and another third are serving time for deeds that shouldn’t have resulted in them being in prison—either still or at all—because the courts have become propitiatory sites to appease public anxiety over ‘scary people.’

It’s even worse in the South, of course. There, people openly equate dark skin with criminality, and there’s an attitude in such cases that if the defendant didn’t actually commit the crime he was standing trial for, it was only because he was out doing some other crime somewhere else. This doesn’t lead to juries inclined to consider mitigating evidence.

I get asked if my opposition to the death penalty applies in all cases, and my answer is yes. Take Lawrence Russell Brewer, the other prisoner executed this week in Texas. If his had been the only execution this week, honesty compels me to admit that I wouldn’t be writing about the death penalty right now, although it would remain at the back of my mind as something that needed to be revisited. Brewer wasn’t just guilty of a hideous crime – dragging a man to death behind his pickup truck – but he was boastful and proud that he did it. Clearly, this was a vile, loathsome human being who should never see the sun as a free man ever again.

But the family of his victim, James Byrd Jr., pleaded on behalf of Brewer that he not be executed. As one news story reported, “’You can’t fight murder with murder,’ Ross Byrd, 32, told Reuters late Tuesday, the night before Wednesday’s scheduled execution of Lawrence Russell Brewer for one of the most notorious hate crimes in modern times. ‘Life in prison would have been fine. I know he can’t hurt my daddy anymore. I wish the state would take in mind that this isn’t what we want.'” Brewer was white. The Byrds were among those people that some white southerners like to assume “would have just been out doing some other crime if they hadn’t been caught for this one”. They like to pretend that folk like the Byrds are their moral inferiors.

Yes, even the execution of a horrible person like Brewer is wrong.

George Washington once wrote, “Government is not reason; it is not eloquence. It is force. And force, like fire, is a dangerous servant and a fearful master.” Government isn’t a moral basis for anything; it is an instrument. In America, it is supposed to be an instrument on behalf of the people. (This has eroded badly in recent decades). It serves the interests of others in various other lands. Of necessity, it wields enormous power, but it is morally blind. It no more considers the ethics and logic of its actions than does a hammer as it is striking a nail. It is a tool, but a fantastically powerful tool.

For that reason, great thought must be given to the extent of its power. It must have power to tax, to regulate, to protect. If the people are sovereign, then it must provide for the needs of the people.

It must be able to wage war in self-defense, and protect its borders, and it should be allowed to raise armies to that purpose. (I oppose involuntary drafts under all circumstance, though.)

But otherwise, it must not be allowed to kill. That is too great a power, and it is being delivered into the hands of a blind idiot who will kill reflexively, killing only because, being allowed to kill, killing is expected of it.

By permitting the government to kill, the American people are, in effect, saying, “You have permission to kill bad guys. Find a satisfying number of bad guys and kill them, so that we might feel a bit safer.”

It’s a testament to the number of people of good intentions in government that probably only several dozen innocent people get executed each year. It could be much worse, and it’s not hard to conjure up near-term scenarios where it will be much worse. Suppose the economy results in widespread social unrest and riots. How long before panicked state legislatures make “conspiring to riot or cause unrest” a capital crime, and assure people it’s for their own protection?

There is no moral or social justification for the death penalty. It doesn’t deter. It makes nobody safer, and in fact puts a portion of society at grave risk. And it demeans us as a people.

It’s time to end it, once and for all.

We don’t help a five year old child deal with the monsters in his closet by handing him a loaded shotgun, and we shouldn’t let the government have the death penalty.

It has to stop.

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