Saturday, January 26, 2008

To Kill or Not to Kill?

The Richmond Times-Dispatch has left me stunned by its lead editorial on January 22, “Death Be Not?” Is this our beloved great metropolitan daily that is opening the door a bit on the possibility of ending the death penalty in Virginia? For those of you who read this outside the Old Dominion you need to realize that the death penalty is almost synonymous with Virginia. Since the Supremes allowed the death penalty to roll forward in 1976, the Commonwealth has executed more people than any state other than Texas (and Texas has an unfair advantage because it has more murders than we do). In Virginia we love our death penalty, so for the TD to suggest that just maybe it ain’t the right thing to do sort of shook me out of my chair.

It wasn’t just the TD’s admission that there is a legitimate question about the wisdom of the death penalty that was so shocking. It was also the language they used. The TD stated,

“[Capital punishment] achieves no legitimate goals that cannot be achieved by a life sentence with no possibility of parole. (Spare us the nonsense about how execution protects fellow inmates and guards from psychopaths. A place like the supermax Pelican Bay prison is the place for them.)”

It then stated,

“The only affirmative case that can be made on behalf of killing someone instead of locking him away forever is the sentiment that certain heinous fiends deserve to die. Indeed they do; indeed, they deserve much worse than that, and their death is certainly no great loss to the world. But the judicial system does not exist to mete out divine retribution.”

The TD editors pointed out that they have long supported capital punishment. But they ended their editorial with the question,

“If it is not necessary to execute, then is it necessary not to execute?”

Dear Reader, is this the proverbial hell frozen over? What is going on? Were they just setting us up for the drop of the other shoe—that we need to hire more executioners? Was this their April Fools Day editorial published early by mistake? Four days have gone by and I see no indication that the TD editors were anything other than serious.

Since the TD has given us permission, I am going to examine my own conscious. This maven will have lived sixty four years effective Superbowl Sunday. I have spent much time considering capital punishment. Over the years my position has changed from anti capital punishment to pro capital punishment and back again. Certainly, two years ago when I learned of the arrests after the murders of the Harvey Family here in Richmond I would have gladly volunteered to be an executioner. Just give me a few minutes with those two guys with an aluminum bat. I’d teach them not to kill children. But, that was the animal instinct part of me, not the human.

When I think of the dispute over the death penalty, I think of a guy named Caryl Chessman. Most of you are much too young to remember but Caryl Chessman was a life-long criminal who was tried and convicted of robbing and raping several women in California in 1948 and sentenced to death. Chessman’s appeals lasted about 12 years, and in that time he changed considerably. He wrote three nonfiction books about his experiences on Death Row. He became very popular among death penalty opponents because he seemed like too nice a guy to kill. Finally, all his appeals and requests for clemency expired and Caryl Chessman was executed. I remember the description by one of the witnesses of how the death chamber filled with the cloudy cyanide gas, of how Chessman took a deep breath to speed the procedure, how his body went into severe spasms, and how his lifeless body finally was sitting still. The experts said that Caryl Chessman suffered no pain.

I also think of Julius and Ethel Rosenberg, who were executed by the United States in 1953 after being convicted of espionage. As a child in Brooklyn, I lived a block from the I.J. Morris funeral home where the Rosenberg funeral was held. There was lots of excitement in the neighborhood that day. I have always wondered why it was necessary for the United States to execute both the Rosenbergs leaving their children as orphans. But, the Rosenbergs were the victims of a national hysteria over the dangers of the Soviet Union and global communism. They may have also been the victims of a decision in the Justice Department to make sure that they were tried by Irving Kaufman, who, like the Rosenbergs, was Jewish. It has been suggested that Judge Kaufman imposed the death penalty, in part, to demonstrate that Jews were patriots.

And, of course, there was Gary Gilmore. Gilmore was what was considered a crazy. When he was sentenced to death, he wanted to get some real attention so, under state law, he chose the firing squad as his means of dying. I remember the descriptions of Gilmore’s execution; how one of the members of the firing squad had a rifle loaded with blanks; how all the executioners aimed their weapons at the place marked as his heart; how Gilmore’s body was struck by the bullets.

When I took Criminal Law in law school I learned of the many theories for treating criminals—punishment (hence the word penitentiary), rehabilitation (hence correctional institutions) and deterrence. When discussing the death penalty we added vengeance to the list. The theory was that the sovereign, by use of the death penalty, was satisfying the needs of the relatives of the victims for vengeance, thus preventing blood feuds in society.

The question comes down to whether society acting through the sovereign (the Government of the Commonwealth here in Virginia) should be in the business of killing people for having committed particularly heinous crimes. What is the function of the government in the criminal justice system? Is it to punish, to try to rehabilitate offenders, to protect society from crime? If it is the first, then obviously the death penalty serves the purpose of punishment. Presumably, death is the ultimate penalty we can inflict on a person. If our objective is corrections, obviously the death penalty serves no purpose. If our objective is to protect individuals in our society from being victims of crime, it is of course clear that the death penalty serves as the perfect deterrent—obviously, the executed convict will never commit a crime again. But, can this objective, of protecting society by deterring people from committing crime, be achieved by some other means than capital punishment?

There is ample evidence that the threat of life in prison without parole serves as great a deterrent to people considering committing capital crimes than does the death penalty. Actually, it is likely that in many instances neither the death penalty nor life imprisonment serves as an effective deterrent. The mere fact that society continues to experience so many heinous murders attests to this. The fact is that many murders are acts of passion and that the perpetrator is not really concerned by the consequences. Further, many criminals do not expect to be caught so that they are deterred by neither the threat of death nor of life-long imprisonment. In short, as stated by the TD editorial, the death penalty “serves no purpose that cannot be achieved by a life sentence with no possibility of parole.”

If people can be equally deterred by the threat of life-long imprisonment, whey then do we insist on killing them? Was the United States in 1953 any better off because the Rosenbergs were executed rather than imprisoned for life? Were the citizens of California any safer when Caryl Chessman was killed? Thinking more recently, were we the citizens of the United States any safer when the United States executed Timothy McVeigh for his terrorist attack on the Oklahoma City federal building? Did his death provide any amount of deterrence to the 9/11 terrorists who launched their attacks three months to the day after McVeigh died?

Aside from the fact that capital punishment is no more effective a deterrent than life imprisonment, I think that there is a real danger that we may convict and execute someone who is not guilty. Although it may be the best way of determining guilt or innocence that we have yet conceived of, a jury trial is not infallible. I have served on two criminal juries in my life. In one case, we the jury convicted the defendant of rape. We decided that we believed the victim’s version of what happened to that of the defendant. Although, sitting in that jury room supported by the votes of the other eleven jurors I was sure that the defendant was guilty, there have been times since that trial when I wonder whether we were right? Could we have convicted an innocent man?

I am reading a book about events that transpired in Russian occupied Galicia (southeastern Poland) during World War I (Mavens need to read some pretty obscure stuff). There is the story of a Polish civilian who is seized and hanged by the Russian army on the suspicion that he was spying for the Germans. It turned out that the man was innocent. A Russian officer is quoted as saying, “Naturally, such is a case is sad. But what can you do? It is better to string up ten innocent men than let a guilty one go free.” That sentiment is certainly not one we can allow in the United States. We must take the opposite position, that it is better that ten guilty men (even a hundred guilty men) go free than that we execute one innocent man.

There have been many cases of defendants being convicted and then being proven innocent by later-discovered evidence. As far as I know these have all been cases in which the convicted person was sentenced to a jail sentence. But, can we believe that juries reach the wrong verdict only in non-capital cases? It is bad enough that someone should lose years of their life in prison for a crime they did not commit. It would be down right horrible if we executed the wrong person.

But, maven, wouldn’t you be in favor of the death penalty if a member of your own family was a murder victim?

Trusted reader, you are not going to trick me into a Michael Dukakis response. Believe me, if I felt so strong about the Harvey murderers, I would feel much stronger if my own family was attacked. I would want to inflict every type of pain and torture on the perpetrator(s). In fact, for a person who did injury to a member of my family I would much prefer that the legal system stepped aside and let me “get justice” my own way. For such a person, death by illegal injection would be far too easy a death.

However, we cannot allow the desire of the families of victims to dictate whether or not we have capital punishment. It is not the function of the Commonwealth to exact vengeance. We can achieve justice for the victim and closure for the family without turning ourselves, the citizens of Virginia, into collective killers.

But, maven, you ask. Is not our country based on the Judeo Christian tradition? Doesn’t the Bible not only condone but require the death penalty for certain crimes? Doesn’t the death penalty just fulfill God’s will?

If I were a wily old bass, I would not be lured by this bait. Talking religion in public is a dangerous undertaking. I don’t want to offend anybody by my religious interpretations. But perhaps certain biblical passages do need to be looked at to address this perceived biblical requirement of the death penalty. So, let’s start almost in the beginning.

In Genesis, Chapter 9, God is setting out the rules for humanity after the flood. God is quoted as saying:

“Whoever sheds the blood of man,
By man shall his blood be shed;
For in His image
Did God make man.”

Genesis 9:6

On its face, this verse seems to support the death penalty for murder. One who sheds blood shall have his own blood shed because he has killed a being made in the image of God. But, is this paragraph a commandment, i.e., does it require the death penalty for murder, or is it merely a prediction by God—if you spill another’s blood your blood, in turn, will be shed. I raise this question because the verse before this one implies that God, rather than man, will do the punishing for murder (“of man, too, will I require a reckoning for human life, of every man for that of his fellow man!)

Aside from this early reference to the death penalty for murder, the Torah (the first five books of Hebrew Scripture that Christians may refer to as The Law) prescribes the death penalty for many violations, both criminal and religious. From reading through all of these, one can make the argument that capital punishment is the way of the Bible. And yet, the same Torah that seems to establish death as the penalty for many offenses makes it very hard to inflict that penalty. For example, Deuteronomy 19:15 provides,

“A single witness may not validate against a person any guilt or any offense that may be committed; a case can be valid only on the testimony of two witnesses or more.”

This requirement means that conviction in a capital case may never be based on circumstantial evidence. Conviction can only be based on the testimony of two witnesses who actually saw the murder and describe it in identical detail. Based on this rule of Torah, most of the people executed in this country since 1976 or who await execution in our various states could not have been convicted.

A further complication with imposing the death penalty for murder under the Torah was that the killing had to be premeditated. “If he did not do it by design, but it came about by an act of God, I will assign you a place to which he can flee.” Exodus 21:13. Therefore, it became necessary in order to convict someone of murder to establish by two witnesses that the killing was intentional. For those who killed without premeditation, the Torah provided for cities of refuge where the killer could go and be free from vengeance by the victim’s family. Numbers 35:9-15. Verses 16 through 21 of Numbers describe what constitutes premeditated murder, punishable by death. The Torah then goes on to say,

“But if he pushed him without malice aforethought or hurled any object at him unintentionally, or inadvertently dropped upon him any deadly object of stone and death resulted—though he was not an enemy of his and did not seek his harm—in such cases the assembly shall decide between the slayer and the blood-avenger. The assembly shall protect the manslayer from the blood-avenger, and the assembly shall restore him to the city of refuge to which he fled, and there he shall remain . . .”

Numbers 35:22-25.

In short, it was so difficult to impose the death penalty under the procedures of Torah law, that the early rabbis commented that a Sanhedrin that imposed the death penalty once in seven years was considered “bloody.”

Wait, wait, wait maven. What about all that eye for an eye stuff? Doesn’t that require the death penalty for murder?

I assume you are referring to the measure of tort damages stated in Exodus 21:22-25. Let’s read the whole paragraph.

“When men fight, and one of them pushes a pregnant woman and a miscarriage results, but no other damage ensues, the one responsible shall be fined according as the woman’s husband may exact from him, the payment to be based on reckoning. But, if other damage ensues, the penalty shall be life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise.”

The Torah rule here is pretty clear. If a pregnant woman is caused to miscarry but she suffers no harm, damages shall be measured by the loss to the husband of the value of the unborn child. However, if the wife is harmed than the measure of damages shall be commensurate with the extent of her injury. This rule does not literally require that the defendant receive the same injury that he caused the wife. Rather, he must compensate the husband for the damage to his wife according to the severity of the damage. So, this eye for any eye thing has nothing to do with capital punishment.

Well, maven, maybe you’re right about the Jewish Bible, but what about the New Testament, the Christian Bible? Doesn’t it require the death penalty for certain crimes?

I am sorry, loyal reader, but you are not going to lure me further out onto thin ice. When it comes to interpreting Christian Scripture you are going to have to find a different maven.

Well, looking back over this tome, I guess that for this week at least I am against capital punishment. I think it brings society down to the level of the killers. I think it has no greater deterrent effect than does the threat of imprisonment for life. I believe that it is not the role of the Commonwealth to exact revenge on behalf of the victims of crime. I see no religious reason that requires us to impose the death penalty for murder or any other crime. I think there is a great danger that we might execute a person who is not guilty.

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