A Mandatory Appeal
By Thomas D. Herzfeld
The latest execution in California points out a number of flaws in the US death penalty process. These are problems that need to be addressed by everyone, no matter what you may think of the death penalty.
First, its application is inconsistent, and arbitrary, even capricious. Consider the case of Charles Manson, who was sentenced to death for the heinous murders he committed. He, David Berkowitz, and others are alive today because the death penalty was considered unconstitutional for some years. Others, whose crimes were not so awful, were executed because the death penalty was constitutional at the time. The rules vary by state: certain crimes in California and get the death penalty, but the same crime in a state without the death penalty brings a prison sentence. The caprice continues with appeals to clemency from the state governor. This process, although cloaked in legal procedure, is actually a political activity in which the governor weighs not just the evidence, but also the political costs of clemency. It might happen or it might not, depending on the direction of the political winds of the moment.
Second, it makes martyrs out of murderers. Whenever there is an execution, ministers, priests, rabbis, and others who represent society's de facto conscience are out protesting. Extremely qualified and caring attorneys pursue appeals to the last possible moment. Hours of news time are devoted to people who should not be the subject of any media attention except perhaps in studies of psychopaths, sociopaths, and the criminally insane.
Third, it is expensive. The lengthy mandatory appeals process ensures that the condemned will spend many years on death row before execution. Sometimes they spend long enough to understand their crime and do what they can to make amends. In other cases the condemned merely serves a life sentence and is executed in his or her dotage.
Fourth, it is primarily enforced on "others," those who are somehow outcasts, mentally disabled (until recently), members of socially disadvantaged groups, or people unable to afford qualified counsel. This is typically a case of the best justice money can buy, at least until the execution date is set and the last minute appeals set into motion. Those who can afford the proper counsel typically either get acquitted, or imprisoned if convicted.
Fifth, it limits our ability to capture criminals who have fled to countries who do not have the death penalty. Those countries will not return our criminals to us unless we waive the death penalty. This again distorts our justice system because it makes it easier for people near the Canadian border to avoid execution - all they have to do is cross the border, and they're clear of it.
Sixth, it is perhaps too limited, applied only to murder and some drug-related charges. This is in part because most of us don't imagine ourselves as murderers, but we could (some of us anyway) imagine ourselves as white-collar criminals. Don't expect the death penalty for crimes that you or I think we might commit. For example, consider Charles Keating, who stole almost $300 million from 21,000 people, mostly elderly. He thus robbed them of a proper pet food-free retirement, yet served only four years in prison. Granted that he has $1.6 billion in judgments against him, but that certainly beats a poke in the arm with a sharp needle. How about those Enron folks? They misled their own employees, conning them into investing their retirement plans in company stock, knowing all the while that it was worthless. Isn't robbing people of their retirement worth more than four years? Probably the death penalty is too much to ask because these people look too much like most of us.
If we are going to join a group that includes Mr. Bush's axis of evil, we should at least do it right, be consistent, and address these issues.
The latest execution in California points out a number of flaws in the US death penalty process. These are problems that need to be addressed by everyone, no matter what you may think of the death penalty.
First, its application is inconsistent, and arbitrary, even capricious. Consider the case of Charles Manson, who was sentenced to death for the heinous murders he committed. He, David Berkowitz, and others are alive today because the death penalty was considered unconstitutional for some years. Others, whose crimes were not so awful, were executed because the death penalty was constitutional at the time. The rules vary by state: certain crimes in California and get the death penalty, but the same crime in a state without the death penalty brings a prison sentence. The caprice continues with appeals to clemency from the state governor. This process, although cloaked in legal procedure, is actually a political activity in which the governor weighs not just the evidence, but also the political costs of clemency. It might happen or it might not, depending on the direction of the political winds of the moment.
Second, it makes martyrs out of murderers. Whenever there is an execution, ministers, priests, rabbis, and others who represent society's de facto conscience are out protesting. Extremely qualified and caring attorneys pursue appeals to the last possible moment. Hours of news time are devoted to people who should not be the subject of any media attention except perhaps in studies of psychopaths, sociopaths, and the criminally insane.
Third, it is expensive. The lengthy mandatory appeals process ensures that the condemned will spend many years on death row before execution. Sometimes they spend long enough to understand their crime and do what they can to make amends. In other cases the condemned merely serves a life sentence and is executed in his or her dotage.
Fourth, it is primarily enforced on "others," those who are somehow outcasts, mentally disabled (until recently), members of socially disadvantaged groups, or people unable to afford qualified counsel. This is typically a case of the best justice money can buy, at least until the execution date is set and the last minute appeals set into motion. Those who can afford the proper counsel typically either get acquitted, or imprisoned if convicted.
Fifth, it limits our ability to capture criminals who have fled to countries who do not have the death penalty. Those countries will not return our criminals to us unless we waive the death penalty. This again distorts our justice system because it makes it easier for people near the Canadian border to avoid execution - all they have to do is cross the border, and they're clear of it.
Sixth, it is perhaps too limited, applied only to murder and some drug-related charges. This is in part because most of us don't imagine ourselves as murderers, but we could (some of us anyway) imagine ourselves as white-collar criminals. Don't expect the death penalty for crimes that you or I think we might commit. For example, consider Charles Keating, who stole almost $300 million from 21,000 people, mostly elderly. He thus robbed them of a proper pet food-free retirement, yet served only four years in prison. Granted that he has $1.6 billion in judgments against him, but that certainly beats a poke in the arm with a sharp needle. How about those Enron folks? They misled their own employees, conning them into investing their retirement plans in company stock, knowing all the while that it was worthless. Isn't robbing people of their retirement worth more than four years? Probably the death penalty is too much to ask because these people look too much like most of us.
If we are going to join a group that includes Mr. Bush's axis of evil, we should at least do it right, be consistent, and address these issues.
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