February 2010

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Kill the Death Penalty

by Toni Seger


We need to get rid of the death penalty. It's ridiculously expensive, statistically discriminatory in how it's imposed, counterproductive in its effect and because it can't ever be perfect, it will always kill innocent people. Continuing to insist on a death penalty is the reflection of an immature society. No other industrialized power continues to impose a death penalty. Why do we cling to it?


I know that when people defend the death penalty they think they're protecting society as if criminals actually weigh their alternatives in the heat of committing a crime and, after considering the possible consequences, restrain their behavior due to fears of being executed at some distant point in the future.


If that sounds ludicrous, it's because it is. There's no deterrent effect with capital punishment, but ironically, we do know that sometimes it actually works in reverse. Just as some criminals force the police to kill them by brandishing a weapon when they've been told to throw it aside, the threat of capital punishment can actually entice criminals to murder. Ted Bundy, for example, escaped custody and chose to run to Florida because he knew if he were caught for murder in that state he would definitely be executed which he eventually was, but not until he'd continued to murder young girls.


I also know when people defend the death penalty, they don't think of the cost in cash, but it's huge and that cost isn't a small matter in an age where many states are grappling with insolvency. The reason it's so expensive is because, as a society, we're extremely ambivalent about having a death penalty. So, we twist ourselves into pretzels telling ourselves, in a capital case, no expense should be spared. As a result, on average, it takes between 10 and 20 years to execute someone which is reason alone to abandon the practice. The state spends all this money just to keep a story in the news and give a murderer a lot more attention than he deserves when what we really should be doing once we lock a murderer up, is ignore him.


Please notice I'm not getting sentimental about murderers and rapists. I have no problem with throwing the key away when it comes to the dregs of society. Life in prison is also no favor. I would even argue that, in many ways, it's a much worse punishment because heinous crimes are often committed to get attention. When you throw away the rest of a person's life, you withdraw their importance as a human being which that's what they're left to live with. Life behind bars is just as effective in muting their threat to society and it disposes of the issue far more quickly and far more efficiently. I don't know about you, but I never want to hear anything more about Bernie Madoff unless it's a story about seizing all of his assets and his family's assets and dividing the money among his victims.


This essay was inspired by Jonathan Wallace's brief comments about the execution of John Muhammad, the Beltway sniper, last November. First, Wallace reminded us of the reign of terror exercised by this twisted soul who entertained himself by terrorizing society with random acts of violence. Then, Wallace asserted his opposition to the death penalty. That's because he could clearly see killing John Muhammad only made him a media darling for another brief period which was Muhammad's biggest goal and only real accomplishment. Otherwise, killing him didn't really accomplish anything. For those of you who are into revenge, ask the family members of victims who've witnessed executions. When any of these people agree to be interviewed, invariably they admit it didn't make them feel any better. Witnessing an execution is a gruesome experience that only reminds them of the irreparable loss they've suffered, but does nothing to restore them or make them feel whole.


Of course, the worst part of the death penalty is the fact that our penal system is made up of human beings who make mistakes and when you make a mistake with someone's life, you can't take it back. Near mistakes are illustrative. Consider the case of Nathaniel Carter who was convicted of a murder so savage (an elderly woman who was stabbed 23 times), the judge said he wished New York had a death penalty because he wanted to sentence Carter to death. Fortunately, the judge wasn't able to do that because 28 months later Carter was released with the apology of the state. Turns out, he didn't do it. His ex-wife did it and she fingered him for it, despite the fact that Carter had 10 alibi witnesses who swore he was 30 miles away.


In 1984, when Carter was released, he was met by cheering supporters who included the then Mayor of Peekskill, New York; George Pataki. Carter and Pataki had played basketball together growing up and both had been stars on the high school basketball team. Like all good politicians, Pataki wanted to let Carter know, in front of the cameras, that he'd always believed in him. In 1995, however, after Pataki was elected Governor, he ignored signs that read: "Governor Pataki, do you remember Nathaniel Carter?" Pataki had made a campaign promise to restore the death penalty and was moving rapidly to do so because like the politician he is, he was more focused on a campaign promise made to a constituent group than on crafting good policy.


Pataki had an ethical obligation to remember Nathaniel Carter regardless what his personal feelings about the death penalty were or its value as a campaign tool. Pataki ran for and assumed a position of responsibility in society and he did that with personal knowledge of a capital injustice which, by the way, didn't end with Carter's release. Carter's former wife had a grant of immunity before the grand jury which protected her from her own confession and another grant of immunity covered her perjury when she cleared Carter.


Further, it was obvious Carter's lack of resources prevented him from obtaining justice. Carter had a public defender. He couldn't pay for investigators to do the legwork involved in verifying his alibi or investigate the violence in the background of his estranged wife when her accusations went unchallenged. Apparently, there were no ethics in this case at all. There were only repeated examples of expediency, both in convicting Carter and in clearing him.


Pataki assured death penalty opponents that his death penalty would have 'protections' in it, but I'd expect that sort of assurance from any politician. Whether legislators are well intentioned or not on this point, death penalties can have lots of 'protections' built into them, but they'll still make mistakes and that means, there will always be times when they kill the wrong people, especially people who lack the resources to protect themselves.


For four years, the United States didn't have a death penalty and there's no evidence that life was more dangerous for law abiding citizens. In 1972, a Supreme Court case called Furman v. Georgia recalled the testimony of a burglar who gave two accounts of accidental murder. In one, he was trying to escape a botched robbery when he tripped and discharged his firearm. In the other version, he turned and blindly fired a shot while fleeing. Legally, it didn't matter which version was true because the shooting was committed during the commission of a felony which made it legally murder and, therefore, eligible for Georgia's extant death penalty. 


In a 5-4 decision, the Supreme Court put out a one-page opinion, per curiam, that found the imposition of the death penalty in cases such as this one, cruel and unusual punishment that violated the Constitution. The opinion was so brief because the justices couldn't agree on anything else. Though the final opinion was surprisingly short, Furman actually ran over 200 pages as all nine justices expressed themselves, separately, on the death penalty from every conceivable angle. Some were against capital punishment on its face, others pointed to statistics that proved it discriminated against minorities, others raised instances where it had been imposed arbitrarily, but the court could not obtain a majority for any particular theory or get behind any controlling opinion. They just weren't comfortable with the Furman case.


Justice Potter Stewart, as one of the majority, wrote the following:


 "These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed. My concurring Brothers have demonstrated that, if any basis can be discerned for the selection of these few to be sentenced to death, it is the constitutionally impermissible basis of race. See McLaughlin v. Florida, 379 U.S. 184 (1964) But racial discrimination has not been proved, and I put it to one side. I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed."


Furman forced states to reconsider whether their capital punishment statutes satisfied justice by not acting in a manner that was either capricious or discriminatory. So, for four years, the United States didn't have a death penalty. Then, starting with Gregg v. Georgia in 1976, states rewrote their statutes and the death penalty gradually returned, but did we do a better job? There's plenty of evidence we haven't done any better at administering capital punishment in a just manner than we did before Furman and where the Carter case didn't result in the death of an innocent defendant, others haven't been so lucky.


In 2004, Texas executed Todd Willingham who had always protested his innocence and whose innocence has now been proven beyond a shadow of a doubt. The Willingham case is especially painful because the man had tried to save his children from a terrible house fire for which he was later accused and convicted of setting. So, Willingham who was really an agonized victim was executed as a conscious perpetrator. Before Willingham had his life so unjustly taken from him, his family was taken from him in an awful manner and he received the blame for it.


Because Willingham repeatedly refused to plead guilty to a crime he didn't commit, he could not receive the life sentence that would have saved him. Today, minus a death penalty, he'd be a free man. Willingham's death is a stark reminder of the consequences of failure when a society insists on having a death penalty.


The burden of executing an innocent man weighed heavily on the Supreme Court justices when they were deciding Furman, so they unburdened themselves with long individual opinions but having failed to kill off the death penalty, it gradually snuck back. I think the Willingham case should be required reading for all death penalty advocates. In addition to a terribly unjust outcome, there's a lot of other painful reading matter associated with the Willingham case.


First, there's plenty of compelling evidence that got ignored while the phony jail house confession related by a mentally ill inmate who was on a "lot of medication" was taken as proof. And again, the defendant was highly vulnerable because he had few resources with which to defend himself. It's completely unethical for justice in our much vaunted democracy to be so dependent on money, but speaking from my own experience, justice tends to be available to those with the resources to pay for it. A justice system so flawed, in that regard, should never destroy the only possible safety net it has in capital cases; a live defendant.


Todd Willingham haunts us and he's never going to go away. We ignored his right to experience justice when he was alive and we can't ever make that right. What we need to kill off is a misplaced desire for vengeance.


Co-owner of a media/communications firm; ProseWorks(tm) Associates since 1992, Toni Seger has been a professional writer for four decades. Seger is the author of "The Telefax Box", the first in a satiric trilogy about our overly mechanized lives available at https://www.CreateSpace.com/3335778 She has produced and directed original plays for stage and television and is an award winning film maker with endorsements from Maine Public Broadcasting. Her film, "The Force of Poetry" is available at https://www.CreateSpace.com/260202