Tue, May

Death Penalty Agnostics


GELFAND’S WORLD-The latest federal court ruling declaring California's death penalty illegal puts a spotlight on all the conflicting arguments over whether to have capital punishment at all. The July 16, 2014 decision finds that keeping prisoners in suspense as to whether or not they will ever be executed is a Constitutional violation. 

Personally, I'm fine with this judicial approach to abolition, as illogical as the verdict sounds, since the legislature and the voters haven't been willing to complete the act of ending the death penalty themselves. At the same time, I think it's reasonable to be agnostic about the death penalty. By this, I mean that I can feel uncomfortable about killing people and support ending executions, but simultaneously recognize that other people will hold the opposite view. I can respect their position. 

Let me lay my own cards on the table. I was the witness to the violent murder of a friend, so I know the reality. I remember the widening pool of blood expanding out from the lifeless body of the person I had been chatting with a few minutes earlier. It's not an experience that is easy to forget. The moment forced me to confront my own feelings, and I figured out that I wanted the killer to go away for life. 

I did not come to this position through any process of debate or rational thought, although I am aware of the most common arguments made by death penalty abolitionists. I would suggest that most of those anti-death-penalty arguments don't hold water. There is one legitimate argument that the abolitionists seem to fear using, even though it would best serve their cause if they confined their appeals to it. It's the argument from simple morality. 

I'm also aware of the arguments in favor of the death penalty. I don't find them any more convincing than the majority of the abolitionist arguments, although they do have a simple and internally consistent logic. If your view of justice is that murder requires the death of the murderer, then I don't have a logical answer. Your view is based on a moral viewpoint just like mine is, and I would suggest that we are simply weighing competing moral claims, one against the other. 

So it seems to me that the most legitimate argument in favor of abolishing executions in California is really pretty simple. We find it uncomfortable. Some of us even find it immoral. We understand that when the state executes a prisoner, his blood is on all of our hands, because this is a representative form of government. This kind of argument doesn't require a lot of tedious arguing. It doesn't even have to be rational, so much as it needs be sincere. 

If the proponents of the death penalty and the large number of people who obviously don't really care one way or the other are not convinced by this position, then the remaining arguments won't win the day either. 

Just to offer one example of weak logic: Death penalty opponents argue that the state will save money by abolishing the system of capital punishment, because it will save the money required by all those costly appeals. I find this argument to be fallacious. After all, we demand that the state spend money on highway construction, mental facilities, and public health. Why is it not important that the ultimate act committed by the criminal justice system also be funded adequately, if justice so requires? This argument is merely opportunism, not worthy of a legitimate public airing. 

There is one other abolitionist argument that is legitimate. It is the somber fact that too many people have been sentenced to death only to be exonerated at a later time. The introduction of DNA evidence into the modern courtroom does not make incorrect verdicts impossible, but it has allowed us to find, usually long after the fact, that criminal trials are imperfect things. 

The final convincing argument I have heard, not unrelated to the above, is that all too often, some politically ambitious District Attorney will go looking for a conviction in order to make a record for a future electoral run, and in so doing will let slip the requirements of making full disclosure of evidence to the defense. We have lots of examples of this happening, including lots of cases that did not result in the death penalty. It's just a fact of life, improper and horrifying, but real. Trials are not perfect. 

There is one interesting fact that rescues us from having to deal with the death penalty controversy. It doesn't seem to be noticed by the pundits, but it is, I would assert, the most important point to be made at the current time. 

Californians as a whole don't seem to be very concerned about having a death penalty. If asked, they tend to support it in theory, at least by narrow margins, and they haven't so far been willing to vote an outright end to capital punishment. But the fact that California doesn't execute a lot of people doesn't seem to be that emotional a topic in the realm of public discourse. 

Californians seem to be content with having an official death penalty without having real executions, and they seem to be content to let the courts do the heavy lifting in terms of making sure that the situation remains that way. 

In this state, the federal courts have been whittling away the legal power to execute people, but not on overriding Constitutional principles or even simple morality. One decision a few years ago concentrated on the details of the act of execution itself, in particular the mixture of drugs used to end a prisoner's life. This strikes me as a weak way to end the death penalty, since the experience of other states will eventually erode the factual basis of the decision, such as it was. Still, that court order gave California an excuse not to execute people for a number of years. Yes, it was a bit of legislating from the bench, but in the absence of a public outcry, it served its purpose. 

The latest verdict adds the notion that the very act of delaying someone's execution is itself an act of cruelty. The case in question involves a man who was sentenced to death in 1995 but has not as yet been executed. It's true that more inmates on death row die of natural causes than at the hand of the executioner, that the process can exceed a man's natural lifespan, and that the process can seem to be capricious. 

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All of this is true, but inmates sentenced to die seem almost overwhelmingly to prefer to live. They extend the appeals process, sometimes for decades, beginning with the state courts and then taking the process to the federal bench. Thus the current finding, that there is something cruel about the process of putting off the death penalty, seems to be something of a logical rat's nest. 

There is a certain harshness about putting a man in prison, and more harshness in putting him there as a death row inmate. These acts, in and of themselves, are perfectly legal according to the Supreme Court. The fact that an inmate would attempt to prolong his own life through the process of appeals is his own decision. He always has the option to forego appeals and accept execution. There are actually a few killers who have gone down this path. 

It may be that a few years down the road, the Appellate Court or the Supreme Court will overturn the July 16 verdict. But in the meanwhile, California will have a few more years without a death penalty. The people of California, already used to a system without executions, will become more accepting of the status quo. At some point, it will require more political will to reinstate the death penalty in California than to simply let it die a quiet death.


(Bob Gelfand writes on culture and politics for CityWatch. He can be reached at [email protected]).








Vol 12 Issue 58

Pub: Jul 18, 2014

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