Deceit and Dishonesty in the Capital Punishment Debate

Those who oppose the death penalty on moral grounds, fervently believing that the taking of human life is always wrong, also believe, it seems, that lesser sins are legitimate tools if they can save even one condemned prisoner. The misconduct of choice seems to be intellectual dishonesty, and there have recently been some  obvious displays of it. Whether you believe such tactics are justifiable or not, there is no question that they muddle the capital punishment debate.

An infamous past instance was the 2003 commutation of all Illinois death sentences by then Governor (and later convicted felon) George Ryan. Ryan stunned the state when just two days before his term expired, he announced that he was granting clemency to 167 inmates facing execution, changing their sentences to life without the possibility of parole. He said that recent cases where inmates had been freed after new evidence showed they were innocent convinced him that the system of capital punishment “is haunted by the demon of error.” Capital punishment opponents hailed him as a hero, but neither Ryan’s  reasoning nor the mass commutation itself made any sense. It is probable that those on death row are more likely to be guilty than other prisoners, because there are so many procedural safeguards in place. No system of justice is going to be right every time: Ryan’s logic argues for the commutation or abandonment of all criminal sentences, not just those involving the death penalty.

In addition, his blanket commutation was not  responsive to his own argument. Most of the inmates whose sentence he commuted were guilty, and demonstrably guilty beyond a breath of question. In their cases, the system worked just fine. Saving the obviously guilty doesn’t protect the possibly innocent. These inconsistencies didn’t bother capital punishment foes one bit: the end justified the means. The opponents of capital punishment find it useful to focus on the rare cases of unjust conviction, but they really don’t care whether the executed prisoner is guilty or not. They believe execution is a moral abomination, regardless of the victim. In the linked commentary praising Ryan (who, it must be recalled, knew he was facing a trail for his corruption, had self-serving  reasons to  endear himself to as many citizens as possible, and as a bona fide scoundrel, was not above posing as a humanist to save his own skin, even if it let some vicious killers off the hook), the author cites with approval the case of Pennsylvania death row inmate whose sentence was overturned because of a faulty instruction to the jury, saying that this is just another example of an unjust death sentence due to the “demon of error.”  Unjust? That inmate killed 13 people; the argument is deceitful. The process was unjust, because the individual’s rights were violated. But death for a mass murderer is not an unjust result.

In Texas, a debate rages over whether Bobby Wayne Woods should have been executed yesterday, although his guilt was never in doubt—he abducted, raped and killed an 11-year-old girl. Woods, capital punishment opponents say, was too stupid to execute: his IQ was somewhere between 68 and 86. He understood the charges against him and knew what he did was wrong, however. Woods also was intelligent enough to live by himself and hold down menial jobs. Many of the same people who passionately support the rights of individuals with below-average intelligence to have the privileges and opportunities that everyone else has suddenly argue that these individuals, unlike the rest of us, shouldn’t be held responsible for their most destructive actions.

Hey, if it saves a life, what’s a little inconsistency and intellectual dishonesty among friends?

That’s clearly the attitude of capital punishment opponent John Paul Stevens. The Supreme Court Justice recently trotted out a disingenuous argument he first tried in 1995, writing in a dissent that to execute a man after a lengthy delay is cruel and unusual punishment under the Eighth Amendment. Tennessee finally executed Cecil Johnson this week after he had spent nearly 29 years on death row for killing three people while robbing a convenience store. Of course, that lengthy delay mostly resulted from Johnson and his lawyers taking advantage of every possible appeal and procedural device available, all measures that Stevens has championed. Stevens’ argument now intentionally creates a “Catch-22” for the justice system: guarantee death row inmates a full range of procedural roadblocks between themselves and execution, but if they take advantage of all of them, the time it will take to exhaust the procedures is unnecessarily and unconstitutionally cruel. Clever!

Justice Clarence Thomas appropriately rebuked Stevens for advocating this double-bind, writing that Stevens had recently criticized states executing inmates before their appeals process has concluded. “In Justice Stevens’ view, it seems the state can never get the timing just right.” Thomas correctly identified the reason why the usually sage Stevens is playing dissent bait-and-switch: he believes the death penalty is wrong.

And maybe it is. If it is, however, opponents need to make honest, consistent and convincing arguments. Relying on double-talk, deceit and misrepresentation may save some condemned men, but it also raises a real question of whether an honest, consistent and convincing argument against capital punishment exists.

If it does, I haven’t heard it yet.*


*A rebuttal from the best: Clarence Darrow’s immortal closing argument in defense of the teenage thrill killers, Leopold and Loeb is as persuasive an argument against capital punishment as we are likely to get. His clients, both  rich and brilliant sociopaths, murdered Loeb’s cousin Bobby Franks, a child, as an intellectual exercise, to prove that they could pull off the “perfect crime.” With the entire city of Chicago screaming for their blood, Darrow convinced the judge in the 1924 trial to let the two live. Excerpted here is what Darrow, by acclamation the greatest of all American trial lawyers, said about capital punishment:
Your Honor….

…Once in England they hanged children seven years of age. They weren’t necessarily hanged for punishment, because hanging was never meant for that; it was meant for exhibition…

Why did they kill Bobby Franks? Not for money, not for spite, not for hate. They killed little Bobby Franks as they might kill a spider or a fly, for the experience. They killed him because they were made that way. Because somewhere in the infinite processes that go to the making up of the boy or the man, something slipped, and these unfortunate lads sit here hated, despised, outcasts, with the community shouting for their blood.

What is the public’s idea of justice? “Give them the same mercy that they gave to Bobby Franks.”

Is that the law? Is that justice? Is this what a court should do? Is this what a state’s attorney should do? If the state in which I live is not kinder, more humane, more considerate, more intelligent than the mad act of these two boys, I am sorry that I have lived so long.

They say we come here with a preposterous plea for mercy. When did any plea for mercy become preposterous in any tribunal in all the universe? I am not pleading so much for these boys and I am for the infinite number of other to follow, those who perhaps cannot be as well defended as these have been, those who may go down in the tempest without aid. It is of them I am thinking and for them I am begging of this court not to turn backward toward the barbarous and cruel past.

I do not know how much salvage there is in these two boys. I hate to say it in their presence, but what is there to look forward to? I do not know but that your honor would be merciful if you tied a rope around their necks and let them die; merciful to them, but not merciful to civilization, and not merciful to those who would be left behind.

Your honor, none of us are unmindful of the public. I cannot say how people feel. I have stood here for three months as one might stand at the ocean trying to sweep back the tide. I hope the seas are subsiding and the wind is falling, and I believe they are, but I wish to make no false pretense to this court. The easy thing and the popular thing to do is to hang Dickie Loeb and Babe Leopold. I know it. Men and women who do not think will applaud. The cruel and thoughtless will approve. It will be easy today; but in Chicago, and reading out over the length and breadth of the land, more and more fathers and mothers, the humane, the kind and the hopeful, who are gaining an understanding and asking questions not only about these poor boys, but about their own – these will join in no acclaim at the death of my clients. They would ask that the shedding of blood be stopped, and that the normal feelings of man resume their sway.

But, Your Honor, what they shall ask may not count. I know the easy way. I know your honor stands between the future and the past. I know the future is with me, and what I stand for here; not merely for the lives of these two unfortunate lads, but for all boys and all girls; for all of the young, and, as far as possible, for all of the old. I am pleading for life, understanding, charity, kindness, and the infinite mercy that considers all.

I am pleading that we overcome cruelty with kindness, and hatred with love. I know the future is on my side. You may hang these boys; you may hang them by the neck until they are dead. But in doing it you will turn your face toward the past. In doing it you are making it harder for every other boy who in ignorance and darkness must grope his way through the mazes which only childhood knows. You may save them and make it easier for every child that sometime may stand where these boys stand. You will make it easier for every human being with an aspiration and a vision and a hope and a fate. I am pleading for the future; I am pleading for a time when hatred and cruelty will not control the hearts of men. When we can learn by reason and judgement and understanding and faith that all life is worth saving, and that mercy is the highest attribute of man.

I feel that I should apologize for the length of time I have taken. This case may not be as important as I think it is. If I should succeed in saving these boys’ lives and do nothing for the progress of the law, I should feel sad, indeed. If I can succeed, my greatest reward and my greatest hope will be that I have done something for the tens of thousands of other boys, for the countless unfortunates who must tread the same road in blind childhood that these poor boys have trod – that I have done something to help human understanding, to temper justice with mercy, to overcome hate with love.

I was reading last night of the aspiration of the old Persian poet, Omar Khayyam. It appealed to me as the highest that I can vision. I wish it was in my heart, and I wish it was in the hearts of all.

So I be written in the Book of Love,
I do not care about that Book above;
Erase my name or write it as you will,
So I be written in the book of Love.

6 thoughts on “Deceit and Dishonesty in the Capital Punishment Debate

  1. Although I agree with most of this article, I would disagree with your analysis of Gov. Ryan’s commutations. When you have a system that has as many exonerations on appeal and proof of innocence after appeals expired (by a bunch of journalism students) as Illinois’ system, something has to be done. When you have over 30 death penalty cases defended by attorneys who were subsequently disbarred and more who had been previously disbarred (one who was in both categories), you have a problem. When you have over 100 death penalty trials that have to be retried because of obvious fundamental errors (and only then after the unprecedented scrutiny because of the controversy), you have a problem. When you have suspects being tortured with electroshock and Russian Roulette to gain confessions, you again have a problem (14 death row cases). When you have a judge who is convicted for fixing murder cases, including capital cases, you have a problem.

    My understanding of the Illinois instance was that the governor tried to get the prosecuting attorneys to review all of the death penalty cases and schedule new trials for those with serious problems. The prosecutors were completely intransigent and even insisted on retrying some of the people who had been recently exonerated. They refused to admit that any of the convictions had been mistakes. When that happens, commuting all of them is the only ethical thing to do unless you can determine what a reasonable number of mistaken executions are. I am not against the death penalty, but I am against a justice system whose workings seem no better than a coin flip to determine death or freedom.

  2. Michael: Those are good points, and I was aware of them. Some of my take on the Illinois situation is based on flat-out distrust of Ryan. You know that he could have chosen not to commute the sentences of one, two or twenty of the absolutely unquestionable convictions; I recall some of the cases from the op-eds of the time. He wanted to go for drama, and I am not convinced the death penalty had very much to do with it.
    I also object on principal to an outgoing governor doing something so controversial when he has no accountability at the polls. I think it’s cowardly and unfair. A governor is not a king.

  3. In the closing argument above, I have trouble reconciling two points:

    If the state in which I live is not kinder, more humane, more considerate, more intelligent than the mad act of these two boys, I am sorry that I have lived so long.

    And this one:

    I do not know but that your honor would be merciful if you tied a rope around their necks and let them die; merciful to them, but not merciful to civilization, and not merciful to those who would be left behind.

    The former suggests that the state should not engage in the same acts as the defendants, because those acts were unmerciful. The second suggests that the defendants would find mercy in the death penalty.

    I find a new source to reference in your Huckabee “Moral Luck” situation. If Darrow were successful in his plea, he would be subject to “Moral Luck” if the defendants killed again – even in prison. They might kill an innocent wrongfully convicted person, a prison guard, a visitor, or even another inmate who was guilty of a lesser crime.

    Or they might sit quietly and educate themselves and invent something that benefits society.

    If the latter situation is anticipated, I think a judge could determine leniency. But if the former is anticipated, either society has to lock them up in solitary confinement until they no longer can pose a physical threat to anyone, or they need to be executed.

    I would find it unethical to endanger the lives of other inmates by throwing a set of killers into their environment.

  4. Regarding the seeming inconsistency: remember that Darrow was operating on multiple wavelengths. He was arguing that the act of mercy really for teh benefit of society and civilization, not really the spared defendants. He was taking his despicable defendants out of the equation, as Darrow always did. His argument always was, “This case really isn’t about my clients; I don’t care, really, what happens to them.” And it worked: Darrow defended over a hundred death penalty cases, and not one of his clients was executed. Amazing.
    Moral luck was with Darrow in this case: Dickie Loeb, the instigator of the murder, was killed in prison ( Good!) and Leopold was eventually released, spent what was left of his life doing charity work, and was often held up as a perfect example of the virtues of rehabilitation. My Dad, (who died this week) never had any use for Leopold and felt that he should never have been released no matter how well it turned out.

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