death penalty

A commenter left a very lengthy, insightful and thought-provoking comment to my recent post on the death penalty. The comment, in my opinion, is worthy of its own forum and so I’ve received permission to reproduce it here as a “guest post” of sorts. The name of the commenter will not be disclosed, for reasons relating to employment, but I do know this person in real life and all our interactions have left me thoroughly impressed. It is long, but I do hope you take the time to read through it all. Of course, if you disagree, the comments are open for further discussion.

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Alright, look. If someone asks me “why” I oppose the death penalty, my answers all ultimately reduce down to “because it’s just wrong, and that’s all there is to it.” Ultimately, that’s no better reasoned, no more intellectually sound, and no more compelling than the “I’d fry ‘em myself–let me at ‘em” folks who inhabit the comments sections of the Register, the Courant, and (fewer) this post. I acknowledge that–and I can’t, try as I might, articulate the reason that I oppose the death penalty in any coherent manner; just as the vast majority of the vocal proponents can’t articulate any coherent reason for their fervor.

(I will note, at the outset, that I most emphatically do NOT believe that it is wrong to take a life in all circumstances. Lethal self-defense/defense of others, certain instances of warfare, and even certain other instances certainly, in my mind, justify taking another person’s life. But that’s not a conclusion that any of us should take lightly, or treat as a given.)

So, stepping back from a viewpoint of belief, what are we left with?

Giving death penalty proponents the most credit possible, let’s lay out every conceivable argument in favor of the penalty (besides, of course, “fry ‘em! They’re animals! And let’s do it as cruelly as possible!”, since that’s not, in fact, an argument).

1. Vengeance makes us feel good.

2. This sends the clearest possible message that we, as a society, do not approve of the conduct of those we execute.

3. This is an effective deterrent against other potential future murders.

4. This is the only way we can guarantee that these specific individuals won’t kill again.

5. It costs less than incarcerating these people for the rest of their lives.

6. Death is ultimately more humane than the only other available (and often, only other reasonable) punishment; that is to say, life imprisonment.

7. They have, by virtue of taking another life in one of a certain set of ways, forfeited their own right to continue to live and enjoy day-to-day existence.

Let’s bracket #1 for a moment, and move to #2.

#2: It is not clear to me whether or not this is correct. It’s probably true, but I also think it’s possible that it sends no more clear a message than life in prison. It may send a less clear message, if those who buy into #6 are to be believed, or if the point of some of Gideon’s discussion of the irony of killing people to send a message that we don’t approve of killing people is well taken. In any event, continuing to give proponents as large a benefit of the doubt as possible, let’s say that capital punishment–both in sentencing and execution–sends a clearer message of condemnation than a true life sentence. I would simply ask: of what value is that marginal increase in message? What is accomplished by our society saying “we condemn this murder to the degree of death” that isn’t accomplished by saying “we condemn this murder to the degree of life in prison”? Accepting as a given (which it is not), that there is a difference in the strength of those statements, what is the real-world impact of that difference? I would contend that there isn’t one. This does not even begin to address the problems with a “means-to-an-end” approach to criminal justice which would need to be embraced to defend capital punishment on these grounds.

#3: This has been statistically disproven to a degree of scientific/mathematical certainty. The death penalty does not effectively deter violent crime or murders, and there is good evidence to suggest that, at the margins, it may in fact lead to more murders. Given the existence, however, of competing (though biased and methodologically flawed) studies on this point, I will once again give proponents the largest possible benefit of the doubt on this point–at best, there is competing evidence that would tend to support a conclusion suggesting there is no change, a conclusion that there is a slight deterrent effect, and a conclusion that there is a slight counter-deterrent effect. Taking those facts, which are as favorable as they can be for death penalty proponents, it would seem to me that the wisest course is to avoid taking lives on the basis of statistical conjecture that is, at best, ambiguous, and even if favorable, provides only a marginal benefit. Once again, reliance on this point requires an acceptance of an instrumental view of criminal justice with all of the problems that entails.

#4: The reasonable solution to this concern (which is, in some isolated instances, a valid one,) is twofold: 1) more effective administration of prisons. It is, in fact, possible, to ensure that individuals will a) not escape from prison and thus have the opportunity to kill again and b) not have opportunity to kill prison employees or fellow inmates. And 2) legal reform (probably legislative–and this should be a very popular initiative for legislators and governors nationwide to champion, in those states that haven’t already), ensuring that an individual sentenced to life in prison without the possibility of parole in fact serves life in prison without the possibility of parole. (There is, parenthetically, no reason why such a sentence cannot be imposed consistently with guarantees that later evidence of actual innocence, etc. would be properly considered.) I think even death penalty proponents would agree that killing people because we have flaws in our system is not an acceptable solution compared to the option of fixing the flaws in our system.

#5: Empirically false. In the vast majority of instances, it costs less to incarcerate a convicted capital murderer for the remainder of their natural life than it does to execute them. The only possible solution to this (because I assume people don’t favor arbitrarily increasing the cost of incarceration,) is to reduce the cost of executions. In order to do that, however, something will have to be sacrificed. The actual costs of an execution itself are quite small–the expense here comes from the legal proceedings that precede an execution. In other words, the only effective way to make an execution less expensive would be to either remove or seriously downsize a) the quality of legal assistance provided, b) the trial and sentencing themselves, or c) the appeals afforded to a person sentenced to die. Realize, first and foremost, that all three of these things are directed at significantly more than the determination of the binary question of guilt or innocence. In addition to being constitutional rights, (which should count for something), these three types of safeguards serve to ensure accuracy in a guilty verdict (the majority of capital cases are not nearly as clear a guilt question as the Hayes/Komisarjevsky trials), to protect against bias in prosecution and in sentencing, to ensure that a person sentenced to death “deserves” that penalty (as defined by the legislature, no less), to ensure that trials are in fact conducted fairly and in accordance with the principles of law, and to protect a host of other values that are, like it or not, integral to not only our criminal justice system, but also essential to ensure (ostensibly) the protection of each individual who stands as a defendant in that process. (Supposedly, anyway–the great irony here is that as most death penalty proponents decry what they view as the excessive protections and appeals in the process, many opponents bemoan what we consider to be the meaningless cursory review and rubber-stamping that constitute the death penalty assembly line from start to finish.) In any event, it would be wholly impossible to remove those protections and still support the death penalty as “fair” or “just”–setting aside my belief (and the belief of most other opponents) that the system is neither of those things, the legitimacy of those claims depends on the continued existence of these safeguards.

#6: Setting aside the practical problems with this argument, (most of which stem from the finality and irreversibility of capital punishment, as opposed to even the lengthiest period of incarceration), this argument still suffers from two major problems: it’s mutually exclusive to everything else, and it’s wrong. First of all, it is cannot co-exist with the other justifications for the death penalty–if one supports the death penalty for reasons of humanity to a convicted murderer, they necessarily cannot buy into any of the other (largely instrumentalist) justifications for killing that same person. To do so is, at best, intellectually inconsistent, and at worse, intellectually dishonest. Far more problematically, however, the argument just doesn’t hold water. It is, first of all, factually incorrect: the enormous majority of capital defendants fight their sentences. Why? Precisely because the instinct of self-preservation is among our most fundamental human characteristics. Those few who do not fight it (the widely touted-by-proponents Michael Ross, Hayes himself for a few brief days), have been nearly universally (if not universally) suffering from so-called death row syndrome: to whit, they have been mentally incapable of rationally making the decision to die. Our entire legal system protects individuals from the consequences of decisions that we believe them unfit to make–there is no intelligible reason why this situation should be any different.

#7: Believing that convicted murderers have the opportunity to “enjoy” their day-to-day existence is a bit of an exaggeration. And by a “bit of an exaggeration,” I mean that it is a colossal exaggeration. Despite what many death penalty and other “law-and-order” proponents believe, the existence of an inmate in prison–particularly those in the maximum security facilities that house convicted murderers–is (and probably should be) a highly unpleasant and Spartan one–to say nothing of the reality of living with the reality of having killed other human beings. “Ah-ha,” you say. “You said that you’re OK with lethal self-defense or defense of others! Someone who takes a life (or is trying to take a life) has lost their right to live, by your own admission.” Nope. Lethal self-defense or defense of others is justified, not because of the actions of the “target”, but because of its ability to preserve innocent life. In the calculus where we are presented with a choice between the life of an innocent and the life of someone who is anything but innocent, it follows naturally that we should protect the life of the innocent. That is not, however, the situation here: killing the person who is wholly morally culpable does not serve to protect any innocent life at all (see #3 above). Lethal self-defense and defense of others is justified to prevent a certain set of harms; the same “exemption” for killing someone does not extend to allow us (in my mind), to use lethal force against someone who has already committed that harm as, for example, they walk away from their victim. So to buy this argument, you simply must believe that an individual can, by virtue of a single choice, forfeit their right to continue to live on this planet.

So let’s consider that argument, along with the now-unbracketed #1 from above. The two arguments in favor of the death penalty that remain are: by taking a life in a prohibited manner, you forfeit your right to live; and that vengeance makes us feel good. Does vengeance make us feel good? I’d say the jury’s still out on this one–the survivors of murder victims, and those who have themselves survived attacks that murdered others (Dr. Petit would fall into both of these categories), don’t have a consistent answer. For every survivor who claims some sort of “closure” or other benefit from the moment of vengeance, there is another survivor who belongs to a group like www.mvfr.org.

So I don’t think we know that vengeance really does feel good. But let’s say that it does. It’s not clear to me that “feeling good” is the goal of our criminal justice system. The goal of our criminal justice system should be, first and foremost, to protect the members of our society who choose to remain within the boundaries of our laws, and second, to punish, and where possible, rehabilitate those who do not. Both of those goals are served by a true life sentence–neither is better served by the death penalty. I can’t find an articulable reason why vengeance and its possible psychic benefit should be justifications for doing something (though if you have one, please tell me–I’d be genuinely interested to hear it, and I think this discussion could be better for it), and it seems to me that allowing ourselves to pursue such a base and animalistic instinct flies in the face of a civilized society. (Note, please, that “they did it first,” is not an argument against this–what true murderers like Mr. Hayes did is unquestionably terrible, but that in and of itself is not a justification for us to behave in an animalistic way in our own conduct.) This seems closely linked with the argument that certain murderers have simply forfeited their right to live–to this claim, I would simply ask: “why?”

To deprive a human being of the most basic and precious right they have, a stronger logical argument should be required than “because they did something terrible and we’re really angry about it.” As I think I’ve established at this point, there’s no instrumental value to stripping that right, meaning that the justification must be something other than utilitarian—that, as far as I can tell, leaves only a vision that we strip the right because some of us would feel better by virtue of stripping the right. If that’s the standard by which we can strip others of their rights, however, society truly would crumble; I would feel better by stripping the rights of people wealthier than I to keep their money and taking it for myself—but the whole point of being in society is that I don’t get to do that. (In fact, if we think about it, the very people who death penalty proponents want to kill stripped other people of their right to live simply because killing those people benefitted in some way.) So either this argument doesn’t hold water, or I’m missing another explanation—once again, if someone has another good explanation, please share it.

I acknowledge, however, that my answers to the preceding two arguments aren’t entirely satisfying on an intellectual level. I think they get us part of the way there, but maybe not the whole way–I’d love to hear responses from people on both sides, especially on those points. But let’s say that there aren’t good answers to those two arguments, and so they’re left standing. Opposing them, as arguments against the death penalty, we have:

1. A broken system. Little, if anything, of the capital process and the lives of the defendants is fair. Capital defendants frequently begin life without favorable prospects–whether due to mental deficiencies, the conditions of their upbringing, or mental disorders; capital defendants of average or better intelligence, raised in stable, healthy environments, and free of mental disorders are, at best, rare, and in all probability, non-existent. The selection of which disadvantaged murderers will face the death penalty isn’t fair either. The race of the defendant and the race of the victim will have significantly more to do with the decision to prosecute than will any element of moral “desert” of the ultimate punishment in the crimes or the criminal. And once the decision to seek the death penalty has been made, the defendant will, (unless they are the rare capital defendant who can afford counsel,) generally be represented by an overworked public defender, who, even with all the best intentions and most serious effort, can never do everything possible to try to spare their client’s life. (There is no slight intended to public defenders here–it’s a simple statement of the reality that the vast majority of capital defendants will not receive adequate representation; there are certainly exceptions among both private and public counsel.) On the other side of the courtroom, the defendant will likely face a prosecutor who will have tremendous resources on his side. (In one case, that prosecutor will already have the faces of seven condemned men hanging on the wall of his office like hunting trophies (note that this is true–and while not universal, highly indicative of the mentality of many death-hungry prosecutors; people out for convictions and death sentences, in place of justice, truth, or appropriate punishment)). To help make sure that the prosecutor gets that sentence, he then gets to ensure that the jury impaneled to decide whether the defendant lives or dies is ready to condemn him to death as soon as they follow their likely predisposition to conviction—and this is, in fact, the only context in our criminal system where such a predisposed jury not only can be impaneled, but as a matter of law must be and will be impaneled. In their considerations, statistics indicate, the jury is often unlikely to give significant weight to the sorts of mitigating arguments that best explain the conduct of many capital defendants–things like mental illness, an abusive childhood, or drug addiction (studies indicate that fewer than half of jurors would consider the latter two as mitigation.) Following the likely death sentence, the defendant is faced with an appeals process that is notoriously reluctant to grant relief. Even in the face of atrocious misconduct, grievous procedural errors, and serious doubt as to guilt, the appeals process almost never vacates a death sentence or revisits the issues raised by the defendant. In short, once the death-qualified jury sentences the defendant to death, the death sentence is more than likely the final judgment on a defendant’s place in the human community.

2. I already got ahead of myself a little bit, but capital defendants, far more so than any other group of criminal defendants, almost universally, suffer from all sorts of mental and developmental challenges, and almost to a person, are from our lowest socioeconomic classes.

3. There is a well-documented virtual guarantee of bias and arbitrariness in the selection of who is sentenced to die and who is not.

4. The ever-present risk of executing an innocent person. Saying that we should limit the death penalty to cases of clear guilt does not solve this–clear guilt to many of us (Hayes) is not the same as clear guilt to many other (Cameron Todd Willingham, Larry Griffin, who knows how many other innocents)?

And I’m only giving brief lip service to the problems with capital punishment as a system here–that says nothing about the moral conundrums that it raises; the most powerful argument against capital punishment is one, that like the two proponents’ arguments I concede are hardest to address, that is not rooted in hard numbers. The simple reality of the death penalty is that no matter how you slice it, society is declaring that an individual is not fit to continue to live—and then meting out that punishment. Given that this is almost certainly the worst (and definitely the most final and irreversible) thing that a person can do to a fellow human being, the justifications for doing so should, in my mind, and the minds of many other abolitionists, be absolute and beyond reproach—that simply is not the case with capital punishment. Nor have I done justice to the full host of problems that plague the system and make it–even if you believe the death penalty to be totally acceptable as a concept–wholly unworkable and unfair. My point is simply that there is much sitting on the side of the scale that weighs against the death penalty, and very little (if anything) sitting in its favor. Besides, of course, raw human emotion–and obviously, I don’t discount that, given my admission that I don’t need to consider everything I’ve just said in reaching my conclusion that the death penalty is “just plain wrong.” But for all of us–myself included–I think we would be better off if we stopped relying on that emotion (be it anger, sympathy, or something else,) and approached this question from a place of logic and reason.

Of course, at the end of the day, none of this stuff matters to my ultimate conclusion–I never get past my unshakable belief that “it’s just wrong. End of discussion.”

Is that it doesn’t matter what the rest of this sentence is. As someone who knows next to nothing about administrative law, I wouldn’t even hazard a guess, lest someone with intimate knowledge of that field or someone with Googling skills or someone with intellectual honesty and a blog would point out how and why I was wrong.

But this guy doesn’t seem to care. In an op-ed laden with original ideas, he writes:

The National Center for State Courts maintains a database of Case Processing Time Standards, which lay down guidelines for how much time should elapse between indictment and disposition of a case. Like many states, Connecticut’s voluntary guidelines for Class A felonies call for 100 percent of cases to move from arrest to disposition within 180 days.

Hayes faces 17 felony charges ranging from murder to burglary, including 14 Class A felonies, two Class B felonies, and one Class D felony. Alleged accomplice Joshua Komisarjevsky is accused of 14 Class A felonies, 5 Class B felonies, and two Class C felonies.

According to a June 2000 research brief by the National Institute for Justice, the American Bar Association sets a goal of resolving all felony cases within one year from the date of arrest.

Using either of these measures, justice in the Cheshire case is more than two years overdue.

Either he doesn’t understand the fatal flaw in his argument or he does and ignores it. I don’t know which is worse. But I’m sure you, dear reader, have already seen the problem with using that “statistic” to support the argument that the Hayes trial has taken too long: that none of those “guidelines” or “goals” apply to death penalty cases. [He also (erroneously?) misquotes the "voluntary guidelines" statistic. The voluntary guidelines for Class A felonies call for 18 months between arrest and disposition, not 180 days. These were also adopted in 19-frickin'-94.]

He quotes William Gladstone saying that “justice delayed is justice denied”. Quoth Justice Thurgood Marshall:

This especial concern is a natural consequence of the knowledge that execution is the most irremediable and unfathomable of penalties; that death is different.

Ford v. Wainwright. So how long do capital cases take, on average, from offense to the start of trial? Here’s a report from the Office of Legislative Research, dated March 3, 2009. There’s more:

The same study, in which criminal courts in nine different states were studied to assess case processing speed, found that 68 percent of felony cases were resolved within 180 days. Interestingly, it also found that the pace of proceedings often depended as much on the local legal culture as it did on the particulars of the cases involved.

This evidence suggests that the process can be sped up without significant additional investment of resources and without sacrificing the fairness and quality of the trials.  Given the magnitude of the horror in the Cheshire case and the slow process that has carried its suspects to trial, cultural changes seem like a small price to pay for much-needed improvement.

I’m not sure that the assumption that a quicker resolution of criminal cases implies the operation of the system in a favorable manner is correct: to me, it implies the opposite: that defense attorneys are less likely to vigorously advocate for their clients, to investigate defenses and to fulfill their constitutional duty to represent the interests of the defendant. If anything, it suggests to me that there is a greater need for resources and for training.

There also isn’t – and shouldn’t be – an inverse correlation between the “magnitude of horror” in a criminal case and the length of time it takes for resolution of the case. If anything, it should be the opposite. The criminal justice system cannot be held hostage to the emotions of victims.

Yet despite all this, it has taken more than three years to deal with Hayes while Komisarjevsky’s trial has not even started. And, if the trials conclude as most everyone expects that they will, with guilty verdicts and death penalty sentences, justice is almost certain to stretch out even further. Michael Ross, the last man put to death by the state of Connecticut, spent 17 years on death row before his execution on May 13, 2005.

Complaining that Komisarjevsky (the co-defendant) has yet to be brought to trial is yet another glaring example of the holes in the logic of this “op-ed” piece: that a joint capital trial for two men accused of committing terrible crimes, who will inevitably have inconsistent defenses, is an almost certain recipe for disaster and reversal should be obvious to anyone with even a passing ability to think critically.

You don’t need me to point out that the chorus of calls for the “reform” of our criminal justice system are tied directly to the concert-like atmosphere surrounding this one specific case. But isn’t these very cases that test our mettle as a society and that push our system of justice to the limit, to see if we are weak enough to let it break under the pressure of sensationalism and blind anger?

Can anyone tell me how many other capital prosecutions are currently ongoing in Connecticut and how long they’ve taken from offense date to trial?

Of course, there is a very easy way to solve the immediate problem of the “lengthy delay” in the prosecution of Hayes, one that would have resolved this case almost three years ago: take the death penalty off the table. But some want to have their cake and eat it too.