December 14, 2005
The Death Penalty Posted by John Steele Gordon at 11:40 AM EST Stanley Tookie Williams, a founder of the notorious Crips Gang in Los Angeles, was executed early yesterday morning in San Quentin Prison for four murders, after Governor Schwarzenegger declined to grant clemency and all appeals were exhausted. Many death-penalty opponents staged vigils both at the prison and at the Governor’s Los Angeles home, while vast national attention was paid to the case in the last week or so. I confess to being agnostic on the subject of the death penalty. On the one hand, I think it is possible for a person in possession of his faculties to commit a crime of such enormity as to justify the forfeit of his life. Adolf Hitler was not insane by any reasonable standard, but not many, I think, would say life in prison without possibility of parole would have been sufficient, given the blood of millions that was on his hands. Of course, Hitler cheated the hangman by suicide. One of his minions did not. Norway was one of the first countries in the world to abolish capital punishment, in 1905, and hadn’t actually executed anyone since 1876. But in 1945 the country was only too happy to hang Vidkun Quisling, who had betrayed Norway to the Nazis, subjecting it to five years of jackbooted horror. On the other hand, punishment, any punishment, is supposed to accomplish three purposes. The first is, hopefully, to rehabilitate the criminal, by making him see the error of his ways. The second is to assure that the perpetrator won’t commit such a crime in the future. The third is to dissuade others from committing such a crime, by giving an example of what happens to those who do. While the death penalty obviously does not rehabilitate, it absolutely guarantees that the individual will commit no more crimes. But is it effective as a deterrent? Not the way the system works today. Williams committed his crimes in 1979, 26 years ago. Let’s face it, most crimes are committed by people who aren’t very bright. Many of them probably have a time horizon of no more than a week. The possibility of being executed decades in the future simply doesn’t enter their calculations. It did not used to be this way. In February 1933 a man attempted to assassinate President-elect Franklin Roosevelt. He missed Roosevelt but fatally wounded the mayor of Chicago, with whom Roosevelt was talking. The assassin was caught on the spot, tried, and convicted. He was hanged in April 1933—barely two months later. So the death penalty doesn’t accomplish two of the three purposes of punishment. And there is an additional problem with it as well: Mistakes cannot be rectified. In the last decade or so, many people who have been incarcerated for horrendous crimes have been found to have been innocent by new evidence, often DNA, and released from prison. There can be no release from death. As far as I know, none of the thousand people (overwhelmingly men, of course) who have been executed since the death penalty was restored 30 years ago has subsequently been found to have been innocent, but it is only a matter of time. So in a practical sense, the death penalty doesn’t seem to work very well, except for crimes of state, such as Hitler and Quisling were guilty of. And those executions, essentially, have been about vengeance as much as justice. However the people in many states, including California, have consistently backed the death penalty, and politicians have ignored this at their peril. In 1986, when the California Supreme Court had been overturning every death penalty case that came before it on technicalities—because many of the justices were personally opposed to the death penalty—the people of California threw three of them off the bench, including Chief Justice Rose Bird. Since I am a small-D democrat, I believe the people should decide such matters, even when I don’t agree with them. So can the system by which the death penalty is meted out be improved, eliminating or at least greatly reducing the possibility of error and increasing its deterrent effect? Three changes would certainly help. 1) The usual legal standard for criminal conviction—beyond a reasonable doubt—is not sufficient. It should be a higher standard, essentially beyond any doubt. What exactly would constitute proof beyond any doubt, other than confession in open court, I will have to leave to lawyers and legal philosophers. But certainly all interrogations of suspects in a potential death penalty case should be videotaped as a matter of course. 2) Court-appointed attorneys for defendants should be of very high caliber and given the necessary resources to do their jobs thoroughly. The usual courthouse hacks are not enough. 3) The current system of appeals in death penalty cases simply does not work. It is being gamed, very successfully, to drag out the proceedings for as long as possible, in the case of Williams 26 years. Perhaps death-penalty cases should have their own appellant systems, at the state and federal levels, which deal exclusively with such cases and are specifically charged with moving them along as expeditiously as is consistent with justice. Appeals to state supreme courts and the U.S. Supreme Court should jump the queue in the interest of speed. The number of appeals at each level should be strictly limited, absent compelling new evidence. I suspect that in the fullness of time the death penalty will go the way of hanging, drawing, and quartering for treason and burning at the stake for heresy. But until that time we should at least make it as effective and just as possible.
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