Thursday, September 22, 2011


I used to be a supporter of the death penalty.  Not an ardent fan (who is, really?  Wait, after the recent GOP debates please don't answer that.) but in egregious cases I thought it was the fair thing to do.  You take a life, yours gets taken.

Then I met my wife who, while she doesn't practice criminal law, did some research into capital punishment in law school. It took her a little while but she helped me understand the utter injustice in the way many death penalty cases are prosecuted.  There have been countless examples of defense attorneys falling asleep in court, mishandled evidence, and simple legal malpractice which have lead to death sentences.  But worse, it's clear that we, the American people, have consciously and willingly ended the lives of innocent people.

Cameron Todd Willingham was put death in Texas in 2004 for the death of his three young daughters.  Since then several investigations have concluded that there was no real evidence against him and he was almost certainly not guilty.  But he is still dead.

This evening Georgia executed Troy Davis despite the mounting evidence that he wasn't guilty of the crime for which he was convicted and sentenced.  The US Supreme Court delayed the execution a few hours but eventually let it proceed.  Troy David is now dead and nothing can ever change that.

And therein lies my biggest problem with the death penalty: It's the one punishment that can't be reversed.  Sure, no one wants to be locked up for 20 years only to be released with a slap on the back, an "Oops! Our bad!" and maybe a check.  But at least you have the rest of your life.  These two men, and plenty of others like them, never will.  They're dead.

And we killed them.

There are very bad people in this world and many are behind bars where they belong.  But sometimes we make mistakes.  We're human.  Judges are human.  Jury are humans.  Humans fuck up.  And the best part of a mistake is making it right, learning from it.  How do we learn from this?  What is the lesson?  And who needs to learn it?

My brother, a surgeon, and I had a discussion on this topic a few years ago and his response was "Accidents happen.  People die in the ER all the time. So what?"  This wasn't an accident.  It was more meticulously and carefully planned down to the second.  Some would call that first degree murder.

We can't always prevent accidents.  So you take precautions.  You wear a seat belt.  A helmet.  Nomex.  Kevlar.  And you don't kill people.  Keeping them alive is the precaution to make sure you *don't* make the ultimate mistake.

How would you feel, my beloved brother, if that mistake happened to me?   Due to legal incompetence or something else beyond my control I was falsely convicted of murder and sentenced to die at the hands of my government?  How would you feel then about accidents?  About mistakes?

I'm not saying we should coddle criminals or let them roam the streets.  Far from it. We are a (mostly) just nation and we need to mete out punishment.  Dangerous people need to be kept away from the rest of us. Crime can't go unanswered.

But that's just it.  Capital punishment isn't justice.

It's murder.