Tuesday, November 22, 2005

Why I Oppose Capital Punishment

This story from Texas, about a man who comes forward ten years after the execution of an innocent man, is why I oppose the death penalty.

I don't oppose it on moral grounds. As long as due process works and everyone involved does due diligence, I am fine with an "ultimate punishment" of death. But as this case, and others you can find, shows we are only too human:
Sam D. Millsap Jr., the district attorney who handled the case, said he never should have sought the death penalty in a case based on testimony from a witness who identified a suspect only after police showed him a photo three times.
Not to cast aspersions on police, but they are in business to solve crimes. In a corrupt community, they also have other agendas that don't serve the public good. Their job is to find a suspect and evidence to support their theory of the crime, not to pursue justice.

Prosecutors can also be corrupted, or can be incompetent, or have a bad day, or make mistakes. The appeals process is often not involved in "justice" but in legal technicalities. Many appeals have nothing to do with do novo (going back to square one and reviewing all evidence and testimony) examinations but with de jure (was the law followed?) reviews. There was a case in Texas some years ago where a man was executed even after the true killer came forward because the "process" had already been followed and there was no point at which it could be interrupted. Even for the real killer.

Defense lawyers in capital murder also can be a problem, relying on the very prosecutors and police who may not be viewing their case with the same zealousness of justice. Evidence witholding and tampering aren't unheard of. Frequently, defense lawyers may be pro bono types who don't specialise in capital murder or have the time to really dig into complicated or hazy cases.

There is also the reparations argument. You cannot return the lost time to a falsely accused person, nor restore careers and good names, but you can at least make some monetary amends and you can free the person. If you execute the wrong person, there is nothing that can be done.

All this, to me, spells trouble. And it is, for me, reason to reconsider the death penalty process.

On the other side, you have people like Judge Nixon in Nashville, who appears to have become a one-man shield against the application of the death penalty. I view Judge Nixon with nothing but contempt. The people of Tennessee have spoken overwhelmingly in favor of the use of the death penalty, but because he doesn't agree, he blocks all progress on any case he gets his hands on.

No, I don't view him as the Last Dissenter. I view him as a Self-Righteous Megalomaniac Pain in the Ass. He is sworn to uphold the laws of his State, not make personal decisions on its application. He is yet another example of the problems and perversions of the death penalty process. Another reason to worry at its application.

I'm not sure how we can "solve" the dilemma. Certainly, making sure that many people from many different parts of the civil, police and judicial departments get an opportunity to review and re-examine every death penalty case, with ample opportunity to ensure judicial rereview and retrial if necessary is cumbersome in the extreme. It gets you, along with the "crusading gladiatorial lawyer" syndrome where we are now -- taking a decade or more to execute someone, even when guilty is plainly apparent, admitted all around and legally arrived at. That's not "justice" in the sense of communicating a connection between crime and punishment.

I don't know what to do, but the current system is broken. We would also need, in the course of correcting it, to look at what purpose we have jails and prisons for. Is it to hold the guilty during their term of incarceration? With some degree of mercy or without? Rehabilitate those who can be rehabilitated? Do social work to try to improve every prisoner? Currently we do a muddled mix of all three.

Do we have a multi-tiered system? Say, an intake step that assigns prisoners? Minor crimes here; crimes against people there? The monstrous, heinous and unredeemable way down deep under there? Doing so opens a whole new set of problems. If one group can take over that intake step, say those who favor social work, they can pervert the whole system. Politicians will want to intervene, to prove to the public whatever it is they think the voters want to see. "Minor" crimes will become major ones. (Did you know that if you say the wrong thing to a bus driver, you have committed a felony?)

I tend to favor simplicity. Fewer laws, for one. Let society handle the rest, as it will. That's how cultures self-maintain. For minor property crimes, I'd favor community service of a meaningful, punitive sort like cleaning vacant lots or streets, washing off graffitit, repairing damage, etc. For minor personal crimes, I'd favor a social-work approach like directing drunks and addicts into treatment (as Memphis Mayor Herenton once proposed), housing the mentally ill separately, rehabilitating the angry and maladjusted. For the small proportion that are the permanently dangerous and anti-social, permanent incarceration.

But that's just me. And any human system I (or we) might create resides in the hands of the bureaucrats and politicians and careerists and idealists -- and the power-mad -- who will run them, meaning they will become perverted rather shortly.

Maybe regular review of the process? That would soon become not a regular review that occasionally implements change, but a process of regularly getting through the review with little or no change at all so we can all get back to work.

I guess it gets back to human nature, which is flawed, self-interested and short-sighted. Which gets us right back where this post started from.

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