The nomination of John Roberts as 111th Justice of the Supreme Court of the United States was a surprise to many. He was neither a woman, nor a Hispanic, nor an African-American. Rather, he was a conservative Anglo-American with a thin record providing few hooks upon which his nomination could be snagged. At this juncture his nomination is all but assured. On one hand, this is savvy politics at its best. One could legitimately ask, however, whether or not President Bush squandered an opportunity to burnish his “compassionate conservative” image by failing to nominate the first Hispanic to the Supreme Court, namely his Attorney General, Alberto Gonzales. While many far-right conservative organizations objected to Gonzales based upon their perception that his anti-abortion stance was less than doctrinaire, a more likely shortcoming would be the death penalty. Not that Gonzales was too soft on the death penalty, but rather that his zeal for it would prove too distasteful for the American electorate. A Senate inquiry into the machinery of death, and Gonzales’s role in lubricating that machinery, might not only damage Gonzales’s chances for nomination, but the viability of the death penalty itself.
Why Have a Death Penalty at All?
Historically, states seek to achieve four goals in the punishment of criminals: restrain criminals after they’ve committed a crime, deter criminals from committing the crime (or committing further crimes), rehabilitate criminals so that they no longer have a desire to commit crimes, and provide a means for society to exact retribution for the crimes committed. Sadly, the American prison system has all but abandoned hope of rehabilitating its criminals, regardless of what crime they’ve committed, so we will evaluate the success of the death penalty only in relation to the remaining three goals of punishment: restraint, deterrence, and retribution.
The death penalty undoubtedly restrains criminals, but that is not the end of the inquiry. The real question is whether or not the death penalty is necessary to restrain criminals, and quite clearly, the answer is it is not – life imprisonment without parole will suffice quite nicely. The question of whether or not the death penalty actually deters the crimes it punishes (or crime generally) has been the subject of much debate, but an FBI study found that states with the death penalty had a higher violent crime rate than states that abolished it, and violent crimes increased in Texas after the death penalty was reinstated. Finally, we have the question of retribution, and it is this area where the death penalty reigns supreme. Death-penalty advocates routinely invoke the need of society and the victim’s family to reach closure. However, this sort of “eye for an eye” closure isn’t justice so much as it is vengeance, and it is a particularly cruel form of vengeance.
The cruelty exhibits itself in two forms: the actual method of the execution, and the process by which the criminal reaches that point. Most states in America execute criminals through either the electric chair or lethal injection. The electric chair is an extraordinarily inhumane form of execution; many prisoners do not die from the first jolt, but require two or even three jolts of electricity, and are left to slowly fry in their own skin between subsequent jolts. Lethal injection requires three separate injections into the bloodstream of the inmate, but many times the process goes wildly astray, often with cruel results. A 2003 study by the British medical journal The Lancet concluded that many inmates were probably conscious as the third and last chemical was injected into their bloodstream. Both methods are excruciating forms of death and arguably violations of the Eighth Amendment. While the Supreme Court narrowly ruled that lethal injection may be cruel and unusual for a prisoner whose veins were damaged from drug abuse, both lethal injection and electrocution are still widely used throughout the United States.
However, the form of execution is not the controlling or most significant flaw in the machinery of death. The real cruelty, which reaches Kafkaesque proportions, lies in the court system that leads to the death chamber. It is paved with good intentions, but ultimately fails the criminals, the families of victims, and the American people. And it is here that Alberto Gonzales most likely disqualified himself from a seat on the highest court in the land.
The Road to Hell
“If you cannot afford an attorney, one will be appointed to you.”
We’ve all heard these words before, most often while watching Law & Order or CSI. For most of us, that is the only time we will hear the phrase – as entertainment and nothing more. However, for those charged with a capital crime, that phrase signals the beginning of the nightmare.
This is because the overwhelming majority of citizens sentenced to death (90%) cannot afford their own attorney. Furthermore, these citizens are disproportionately minorities, primarily African-American. In Illinois, African-Americans make up 60% of the death-row population despite the fact that they comprise only 14% of the population. These unfortunate individuals will be put in the care of public defenders or a private attorney assigned to the case by the court. This is a huge structural flaw in the system, because a death-penalty defense is extraordinarily expensive, and defendants assigned to public defenders or private attorneys can most charitably be described as citizens of limited means (Philadelphia is one jurisdiction where this is currently the case). These citizens may have severe mental deficiencies or have lived lives of unspeakable hardship, and these factors cannot be effectively established in court without the assistance of third-party witnesses, expert or otherwise.
To take into account factors such as child abuse, lack of a criminal record, or emotional disturbance when determining whether or not a death sentence is appropriate is not an abdication of “personal responsibility,” but rather a considered weighing of the degree of punishment. Such a weighing is not uncommon in our legal system, because crimes of passion routinely receive lesser punishments than premeditated crimes. To understand this dynamic, we must look at the unique structure of capital punishment.
Capital crimes are subjected to a two-phase trial. The first phase establishes liability for the crime – for example, did the defendant commit first degree homicide? The second phase establishes punishment – will the defendant be sentenced to a prison term or death? To be sentenced to death, the jury must find that aggravating factors existed, and that those aggravating factors outweighed any mitigating factors. The Illinois death-penalty statute, for example, codifies 21 different aggravating factors, including the murder of a teacher on school grounds, car-jacking, and torture.1 The same statute codifies five mitigating factors, but that list is not all-inclusive. A defendant can make any argument that personal factors in his or her life warrant mitigating the penalty from death to a prison sentence, so long as they are “factors which are relevant to the imposition of the death penalty.”2 (View a summary of aggravating factors for all 50 states here.) On its face, this system seems to be reasonable and rational. The problem, however, lies in its (pardon the phrase) execution.
Most states put the burden of presenting mitigating factors on the defense. Furthermore, those states (including Illinois) do not require that mitigating evidence ever be presented. The Illinois death-penalty statute states that “[t]he court shall consider, or shall instruct the jury to consider any aggravating and any mitigating factors which are relevant to the imposition of the death penalty.”3 While the court must consider mitigating evidence, the defendant is not required to present it: “[M]itigating factors…may be presented by the State or defendant.”4 The statute only requires that the “defendant shall be given fair opportunity to rebut any information received at the hearing.” Id. Unfortunately, what often happens is that no mitigating factors are presented by the defense, and so no “weighing” takes place – the prosecution establishes aggravating factors, and the defendant is sentenced to death. This absence of weighing arguably renders the sentencing process unconstitutional, because it was only when Georgia established this system in the mid-1970s that the Supreme Court allowed the death penalty to be reinstated.
Why does this happen? Quite simply, because of a lack of resources. Public defenders are notoriously overworked and may not be able to track down witnesses who can establish that the defendant was abused, abandoned, or mentally incompetent. Court-appointed counsels are in the same situation, because they are recipients of minimal pay by the court, and the defendant cannot be depended upon for payment (otherwise, court-appointed counsel would not be necessary).
This system results in a bare-boned defense because counsel is too overwhelmed to act effectively, and fails to raise key issues regarding liability or capacity. This isn’t a hypothetical problem, either. In Texas, Carl Johnson was executed in 1995 despite the fact that his attorney slept through portions of the trial. In California, the court-appointed attorney failed to discover severe mental defects in his client, and instead spent time playing Pac-Man while his client was sentenced to death. While the defendant in California was fortunate enough to have his conviction overturned on appeal because subsequent attorneys were able to uncover those mental defects, we have no idea how many defendants were not afforded this chance.
The Appeals Process
After the defendant is sentenced to death, the appeals process (and the real nightmare) begins. While this process varies from state to state, generally, the defendant gets one appeal, usually to the state supreme court. In the case of the indigent defendant, the court-appointed counsel continues his or her representation, but after that, the defendant is on his or her own. Again, this system seems appropriate in the abstract, but as we have seen, if court-appointed counsel is overwhelmed during trial, is it any surprise that counsel will continue to be overwhelmed on appeal? In effect, the appeal is an empty gesture. The only hope a destitute defendant may have is that a legal advocacy group such as the ACLU or an otherwise idealistically motivated group (such as journalism students at Northwestern University) will take up his or her cause.
Politicians and the Part They Play
If the defendant cannot avoid the death penalty through the judicial system, there is one final card to play: petitioning the governor. Most, if not all, states vest the governor with the power to commute the sentence of death-row inmates. However, few do, and the most famous example is President George W. Bush. During his five-year tenure as governor of Texas, Bush presided over 152 executions. That amounts to one execution every other week. In contrast, over a period of 10 years (1993-2003), the remaining 49 states combined executed only 432 prisoners.
President Bush has repeatedly assured the American public that each and every executed prisoner was guilty. However, a close examination of the circumstances surrounding his assurances inevitably leads to the conclusion that the American people, and perhaps even George W. Bush himself, were deceived. The culprit? None other than Attorney General Alberto Gonzales. In the July/August 2003 issue of the Atlantic Monthly (note: accessible to subscribers only), Alan Berlow published an in-depth study of the case summaries presented by Gonzales to then-Governor Bush, and the results are quite disturbing. Gonzales white-washed the cases by omitting contested witness testimony, lack of evidence, and plausible theories establishing third parties as the potential perpetrators of the crime. Gonzales even ignored international law, allowing a Mexican national, Irineo Tristan Montoya, to be executed in 1997 despite the fact that he did not have an opportunity to consult with Mexican consul. This oversight, taken in tandem with Gonzales’ memos characterizing the Geneva Conventions as “quaint”, demonstrates an aversion to international law that might further make a successful Supreme Court nomination difficult, but that is a topic for another essay.
Putting Capital Punishment to Death
This brief survey of the actual capital punishment trial, the appeals process, and the political pardon or commutation demonstrates that the death-penalty system cannot be fixed. The system possesses inherent weaknesses that can be exploited by those in power to railroad the economically less fortunate. Any efforts to “improve” the system to make it failsafe are entirely Quixotic in nature because they focus on process. For example, Governor Mitt Romney wants to restore the death penalty of Massachusetts by implementing a higher standard of proof (e.g. no doubt). This, however, is an impossible standard to meet, and it does not address the problem that poor defendants do not have the resources to mount an effective defense. The current political climate that demands an unrelenting “tough on crime” stance trends against the provision of the necessary resources. The death-penalty system is fundamentally flawed and must be discarded.
Entering a Post-Death-Penalty World
What is most shocking about the continued existence of the machinery of death is that an alternative system already exists, one that has been adopted by the vast majority of countries in the world: life in prison with no possibility of parole. This system has many benefits: it is less expensive, it provides immediate closure for the family and loved ones of the victim (as well as society), and it lets us take the moral high ground in international affairs. The only thing holding us back is our representatives, and their realistic fear of being punished for being “soft on crime” at the polls.
Let us first discuss the issue of expense. Executing a criminal is immensely expensive compared to a sentence of life without parole – anywhere from three to 20 times more expensive. The additional expense comes from the bifurcated trial process, the separate facilities to house death-row criminals, and the extensive appeals process. While it is tempting to reduce the expense by legislatively eliminating or reducing the appeals process, to do so would run into due-process violations that we, as a society, hold dear. The death sentence is qualitatively different from any other kind of sentence we as a society can impose, because there is no room for error – a false execution can never be undone in the way that a false imprisonment can be undone. The appeals process exists, in theory, to ensure that every execution is correct. However, as we have discussed, theory does not work in practice, and the appeals process is overburdened and stretched thin by attempting to reduce errors that are made every day at the trial level.
The ironic fact that the pro-death-penalty camp is also the anti-big-government camp cannot be overlooked. Hard-on-crime conservatives who want to keep their tax dollars should advocate for the abolition of the death penalty as fervently as human-rights advocates. The alternative, life in prison without parole, serves the same purpose while still providing ample time for discovering evidence mandating overturning a conviction, if such a situation exists. It cannot be disputed that sentencing an innocent man to prison does not reduce crime.
The extended appeals process required by the death penalty places a massive amount of emotional distress not only on the defendant, but also on the victim’s family. If the family believes that they are entitled to witness or read about the execution of the defendant, they will have no rest until the execution occurs. However, that process can take decades. In contrast, if the family witnesses a life sentence with no possibility of parole, they can begin to move on immediately after the trial. Granted, this argument ignores the popular desire exhibited for the death penalty (which is more accurately described as bloodlust), but popular desire for distasteful conduct has always existed, whether in support of slavery, against mixed-race marriages, or discriminating on the basis of sex. Popular desire alone is insufficient to condone public policy when it flies in the face of principles of justice found in our Constitution.
We should also consider the effect our death-penalty policy has on our international stature. The worldwide trend leans toward abolition – 120 countries have abolished or severely limited the death penalty, while 76 retain it. The United States is one of the most enthusiastic proponents of the death penalty, surpassed only by China, Iran, and Vietnam in the number of executions performed in the past year. It is inconceivable that any American would want our country placed in a category with these countries, which are homes to some of the most abominable regimes on the planet. Yet, here we are, and our potential allies think less of us because of that.
This isn’t to say that the United States should always bow down to international law, but neither does it mean that we should thumb our nose at the international winds of change. Historically, the United States has obeyed international law out of a desire for parity – we want our citizens treated well when they are abroad. However, we have not hesitated in executing foreign nationals (i.e. the Mexican national incident in Texas discussed above). Because of this, and general philosophical differences in criminal punishment, we have had to relinquish our death-penalty bloodlust to acquire jurisdiction over criminals who have escaped to foreign soil. This propensity, and our bloodlust in general, have already made other countries loathe to allow the extradition of criminals to our soil. They view us as barbaric and backwards, and this is not to our benefit. While the Federal government has considered making concessions in the wake of international opinion, this has not led to a full repeal of death-penalty law.
If it is our desire to maintain our status as “beacon to the world”, if our president wishes to make good on his mantle of “compassionate conservatism”, if respecting the “sanctity of life” is really to mean anything, capital punishment must be abolished. We should do this by remembering that our founding fathers were creatures of the Enlightenment Era and believed in the power of reason. The machinery of death does not recognize reason, and few politicians will correct this deficiency unless they believe that the electorate will reward them. The ones that do attempt to fix the system do so only after they have moved beyond the reach of the electorate. Former Governor George Ryan of Illinois provides a good example.
In what mounting scandals would make his last term, Ryan passed a moratorium on the death penalty. While it was certainly a courageous step for a Republican governor, it is important to remember that a moratorium just delays executions, it does not outlaw the death penalty. Ryan merely placed all executions on hold until the capital-punishment system could be reviewed for accuracy. While his successor, Governor Rod Blagojevich, has continued the moratorium, he too maintains a pro-death-penalty stance. Illinois prosecutors know this and continue to ask for, and receive, death-penalty verdicts. Unless we as citizens ask our representatives to truly be pro-life and ban capital punishment, we will always be subject to the machinery of death.
Copyright 2005, Eric Brunick and Al Dereu
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