Another of the periodic death penalty controversies is unfolding in Florida. The stay of execution for James Dailey expired yesterday. Governor Ron DeSantis now has to decide whether to grant him a new clemency hearing, or uphold his death sentence. So far, the Governor has not been sympathetic.
New evidence provided by the co-defendant in the Dailey’s murder case has been offered by Jack Pearcy, Dailey’s co-defendant in the 1985 murder of 14-year-old Shelly Boggio. Pearcy was sentenced to life in prison, Dailey to death. Pearcy has written a letter declaring, “James Dailey had nothing to do with the murder of Shelly Boggio. I committed the crime alone.” A federal judge issued a stay until Dec. 30 to give attorneys an opportunity to file appeals.
As the New York Times argued in an editorial, Dailey’s conviction also depended heavily on the testimony of a repeat jailhouse snitch who had a cozy relationship with the prosecutors. The Times says, “The rank injustice of cases like James Dailey’s provides yet another reason, as if more were needed, that the death penalty must be abolished.”
No, it doesn’t. I haven’t studied the case, but based on what I’ve read, it certainly appears that Dailey might be innocent, and thus in his case, the death penalty is unjust. (I agree with the Times that jailhouse snitches are unreliable witnesses and should be regarded by juries with skepticism. On the other side, I don’t find a late claim of guilt exonerating a co-defendant especially persuasive. The guy is locked up for life; he has nothing to lose or gain. )
I would have no objections to using the death penalty only in cases where there is no chance whatsoever that the defendant isn’t guilty and the crime is especially cruel, premeditated, and depraved. (See the Cheshire home invasion, an example I have used before.) As I have argued here before, there must be an ultimate punishment for the worst crimes, or society’s values are compromised, and inevitably diluted. We have to recognize a hierarchy of crime. If a Ted Bundy only gets life imprisonment, what is the proportional punishment for a gang assassin of one? This is how much of Europe ended up with absurdly short sentences for serious crimes.
Coincidentally, I watched the 2003 film “The Life Of David Gale” over the weekend. Starring Kevin Spacey as an anti-death penalty activist who is framed for murder, the Alan Parker directed film purports to be anti-death penalty, but its arguments are facile, concentrating on one of the worst death penalty abolishment theories, that since it is possible for someone to be executed for a crime he or she didn’t commit, the death penalty is too flawed to be just. Of course, that argument could be used to abolish all criminal punishment; demanding perfection of any system is unreasonable. The protagonists of “The Life of David Gale,” however, are convinced that if a single execution could be shown to have been inflicted on an innocent citizen, then the death penalty would be doomed.
I won’t spoil the “shock” resolution of the movie in case you decide to see it, but I bet you can figure out what it is based only what I’ve told you already.
It appears that justice demands that James Dailey be, if not freed, spared the ultimate punishment for a crime where his guilt is far from certain. The fact that the societal tool of the death penalty has been inappropriately applied in this case, however, does not constitute a strong, or even a valid, argument to abolish it.