Objection! (39 page)

Weak-willed politicians and judges have managed
to hide behind a long and painful appeals process in death-penalty cases to achieve their own ends in a manner I argue is neither the will of the people nor democratic by any stretch of the imagination. If you ask them why, they’re sure to pontificate over their reasons. What’s important to remember here is that just because they recite their reasons over and over and over, it does not make them true—or valid. They sing the second verse same as the first. Tune in to any cable-television program, wait a few hours, and you will hear the same tired song: The death penalty is capricious, and the innocent may well be executed; it does not deter other crimes; nothing can possibly justify the state’s taking a life; it simply isn’t civilized. Opponents seem to equate support for a jury’s choice to implement the death penalty in specific and heinous cases with incivility—as if we had somehow picked up the wrong salad forks or drunk from our soup bowls. Hello! It’s not about etiquette, it’s about whether our courts will seek and carry out justice as well as punishment. It’s not about civility. There is nothing civil about murder or its consequences. Instead of living it, working it, dealing with the pros and cons of it, opponents mostly seem to enjoy whining about it.

Is their reasoning sound? Their arguments are repeated so often and with such a tone of moral self-righteousness that many listeners fall for them. They continue to sing the same tired chorus without ever truly examining the harsh realities of crime—murder, specifically—or the aggravating circumstances such as rape, child molestation, or cop killings that must accompany the murder in most jurisdictions before the death penalty is even considered. All of that must take place before O B J E C T I O N !

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the weighty burden of the jury’s vote of yea or nay even kicks in.

Wrestling with this decision, though difficult, is essential. It is not for the weak-kneed, but for those strong hearts that want the truth. Let’s try the truth.

U N F O U N D E D C L A I M S O F

W R O N G F U L E X E C U T I O N

I consider the most
powerful weapon in the opposition’s arsenal to be their argument that plays on people’s fear of wrongful execution. This is a legitimate fear and must be confronted head-on without attacking the premise of the fear. I agree with the great libertarian John Stuart Mill in his analysis of the issue. He believed that the remote possibility that an innocent man could, in some contortion of the system, be wrongly convicted and executed is a risk that can never be entirely eliminated, and that such a miscarriage of justice would be in itself heinous. We as a nation, if we are truly dedicated to the cause of justice, must take any and all measures to avoid it.

Only a handful of wrongful capital convictions and penalties are known, and none has occurred since 1976, when capital punishment was reinstated in this country. Technological breakthroughs in DNA science have added another layer of protection for the accused. When we learn from the headlines that an inmate has been released from behind bars because of DNA analysis, in my mind the case for the death penalty grows stronger, in that injustice is even more unlikely and justice has been served well by the exoneration of the not guilty.

The examination of DNA evidence is just one aspect of the many precautions taken in death-penalty cases. Mill accurately reasoned that the mistake of wrongful conviction and execution can never be corrected; all compensation, all reparation for the wrong, is impossible.

Wrongful convictions are grounds for abolition where the mode of criminal procedure is dangerous to the innocent or where the courts of jus-2 6 6

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tice are not trusted. This is probably the reason that the objection to irreparable punishment began so long ago and is greater in parts of the world outside America. There are countless court systems where criminal procedures are not nearly so favorable to the accused and do not offer the same protections against erroneous conviction that we revere in this country.

Believe me, if the U.S. justice system were so ineffective and unfair, I’d be the first to join in with the death-penalty protest. But that is simply not the case. Our justice system is the soundest in the world, with defects rare and rules of evidence that are typically all too favorable to the prisoner. In this country, the belief is firmly ensconced that it is better that ten guilty should escape than that one innocent person should suffer. Judges incessantly point out, and juries believe in, the barest possibility of an accused’s innocence. While no human judgment is infallible, in our system the accused always has the benefit of the merest shadow of a doubt. Furthermore, when the death penalty is sought in sentencing phase, after a guilty verdict is handed down, juries are even more careful, more dedicated to their duty as adjudicators of fact, law, and punishment.

In June 2000, an article appeared in the
Wall Street Journal
written by law professor Paul Cassel in which he took a hard look at opponents of the death penalty in a Columbia University study that claimed the nation’s capital-punishment system was collapsing due to wrongful convictions. The U.S. Supreme Court long ago instituted a system of super due process for death-penalty cases. The result of the long and tortuous appeals process is that capital sentences are more likely to be reversed than lesser sentences are, because of incredible caution. Publicized reports of a 68 percent “error rate” in capital cases is actually an amazing indicator of the bench’s multiple safeguards for the imposition of the death penalty.

The so-called 68 percent error rate in the study had nothing to do with the “wrong man” defense, where an innocent person is convicted of murder. After reviewing twenty-three years of capital sentences, re-O B J E C T I O N !

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searchers have been unable to find a single case in which an innocent person was executed. The 68 percent error rate actually deals with any and all reversals of death-penalty cases for any reason at any stage in the process, be it a failure to read Miranda rights, not severing cases of codefendants, or any ground constituting legal error. And don’t leave out the leagues of anti-death-penalty appellate judges who reversed sentences for their own political reasons, causing statistics to appear as actual miscarriages of justice.

Then there is the matter of confusing guilt with punishment. The

“study” ignores the distinction between a determination of guilt of murder and a determination that the killer should get the death penalty.

Reversals because of sentencing were lumped in with reversals on actual guilt—evidentiary grounds—i.e., did the suspect actually kill?

The question of greatest concern was risking executing a person who’d neither killed the victim nor been a party to the killing. The report indicates that only 7 percent of cases remanded for retrial on guilt-innocence issues ultimately ended in acquittal. That’s even including cases that are retried years later with missing witnesses and dimming memories.

Our system is so stacked in favor of the defendant that countless guilty people are deemed not guilty. Factor that into the 7 percent and find this conclusion: The incredibly low levels of acquittal on retrial bear out that the system works. The unvarnished truth is a far cry from the claim that we convict and execute the innocent. We don’t.

T H E D E A T H P E N A L T Y D O E S

D E T E R C R I M E

When an allegedly wrongful
conviction has taken place, we hear about it eternally. My question is, why do we rarely hear the truth about perpetrators of violent crimes who are released and become repeat offenders? There are too many stories of murderers who, for whatever 2 6 8

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reason, get out of jail. The headlines have been full of tales of violent criminals who are released from prison and graduate to murder. The news is rife with horrific killings committed by repeat offenders. Here are two tragic examples:

Polly Klaas’s killer, Richard Allen Davis, had spent years in and out of jail. Just a few months before he kidnapped that sweet little girl at knifepoint from her Petaluma, California, home in 1993, he had been released after serving just half of a sixteen-year sentence for kidnapping. Davis’s crime against Klaas so horrified the nation that it became a driving force behind the passage of a California law that mandates a life jail term for defendants convicted of a third felony crime. Klaas’s killer received the death penalty and remains on death row today.

On November 22, 2003, Dru Sjodin, a twenty-two-year-old college student, finished her shift at the Victoria’s Secret store in the Columbia Mall in Grand Forks, North Dakota, and called her boyfriend, Chris Lang, on her cell phone. The conversation came to an abrupt end when Sjodin uttered a surprised cry and the line went dead. Three hours later, Lang got another call from the same cell phone, but all he heard was static on the line. It was subsequently determined that the call had originated from the vicinity of Fisher, Minnesota.

A registered Level 3 sex offender named Alfonso Rodriguez Jr. was arrested in connection with Sjodin’s disappearance in December 2003.

Earlier that year, the convicted rapist had been released from prison after serving a twenty-three-year sentence for an attempted kidnapping and assault of a woman in 1980. At the time, Rodriguez should have been considered for civil commitment, but it never happened. If it had, Rodriguez would have been kept in custody indefinitely and Dru would be alive today.

Sjodin’s body was discovered in a ravine near Crookston, Minnesota, in April 2004. KVLY-TV in Fargo, North Dakota, reported that her cell phone was found near her body and had remained on for nearly twenty-four hours after Sjodin was abducted. Authorities were unsuccessful in trying to track the signal. There is no death penalty in MinO B J E C T I O N !

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nesota, so the feds stepped in. In May 2004, a federal grand jury charged Rodriguez with kidnapping and murder. Since he is charged with crossing the state line with Sjodin before killing her, Rodriguez will be tried in federal court and faces the death penalty. His trial is set to begin March 6, 2006.

The repeat-offender crisis never seems to be adequately addressed.

What about those repeat offenders who have graduated to murder number two or worse? Believe it or not, according to an August 2002 report by John O’Sullivan in the
National Review
, at that time there were 820 people in U.S. prisons serving sentences for their second murder committed while behind bars, typically of a prison guard, sheriff, or another inmate. Obviously, had the death penalty been sought the first time around, 820 victims would be alive and with their families today. One wrongly accused versus 820 innocent victims. I know it’s not about numbers, but repeat murderers make a powerful argument for the death penalty.

One of the most disturbing facts about many murder cases is that the perpetrator is often a repeat offender. The Manhattan Institute reported that the average prison term of murderers released in 1992 was only 5.9 years. While the victim is sentenced to death, murderers are released after just 6 years, free to prey on the innocent—and free to kill again.

Let’s take a hard look at murder with a dose of common sense.

“Murder” occurs when one human willfully kills another who has posed no physical threat to the killer.
Webster
’s defines “murder” with the term of “malice aforethought.” This is not self-defense, not an accident or a mistake, and not due to diminished capacity. Murder is murder.

Those 820 murders I mentioned earlier, contrary to anti-death-penalty sermons, constitute a powerful argument for capital punishment.

Simply put, dead men can commit no more murders. That argument alone is more than adequate justification for capital punishment. It is a deterrent, and maybe that’s why we hear it so rarely.

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John Stuart Mill said there is nothing that makes a more dramatic impression on the imagination than the finality and the severity of the death penalty. The loudest shriek from anti-death-penalty proponents is that “no evidence” supports the contention that the death penalty is a deterrent. Even if that were true, it is not decisive, because there remains the issue of punishment sufficient to fit a heinous crime.

A noted group of economists from Emory University—Paul Rubin, Hashem Dezhbakhsh, and Joanna Melhop Shepherd—released a study in January 2001 titled “Does Capital Punishment Have a Deterrent Effect?” Based on a statistical analysis of the recent data amassed since the reinstatement of the death penalty in the 1970s, they proved that the death penalty is an extremely significant deterrent of potential murder. They conclude that each execution deters other murders to the extent of saving between eight and twenty-eight innocent lives, averaging eighteen lives saved per execution.

The idea of punishment greatly affects the imagination. The restraining influence the death penalty holds over a person considering a capital offense is impossible to assess. In evaluating the alleged failure of punishment by death as a deterrent, who is qualified to be the judge?

We know there are those who were not deterred and went on to commit horrific crimes, but who will ever know when the fear of the death penalty stopped someone in his tracks? Can we ever really know who was deterred from committing murder or how many lives have been saved simply because of the existence of the death penalty?

W E A R E A C I V I L I Z E D

S O C I E T Y

Opponents argue that the
death penalty somehow makes us less civilized than the rest of the world. In America, we have more freedoms than any other country, nation, or people in the world. Where there is great freedom, there is great responsibility. We value justice and fair O B J E C T I O N !