Ultimate Punishment, Fallible System

Maybe you’ve found yourself in this position. I know I have.

After encountering accounts of a particularly heinous crime, you sense impending outrage. Reflex reactions, such as a balled fist or gnashed teeth, sure enough ensue. So might a dismissive expletive about who doesn’t deserve human-species inclusion.

And had that brutalized victim been, say, a member of your own family? All bets are off. Revenge is cruel, not sweet. The human condition as enabler.

But this is why we have laws, including those that prevent society metastasizing into an avenging mob. So, we institutionalize the ultimate societal punishment for the ultimate crime: death. Or as U.S. Supreme Court Justice Potter Stewart once said in reference to capital punishment: “It is an extreme sanction suitable to the most extreme of crimes.”

Over the years, we’ve passionately debated the subject of capital punishment–as well as Justice Stewart’s bottom-line rationale. The overtones are either heavily political or moralistic. The “bleeding heart” liberals vs. the “hang ’em high” conservatives or the “thou shalt not kills” vs. the “eye for an eyes.”

We’ve seen the irony of those, such as U.S. Sen. Orrin Hatch, who reason that “Capital punishment is our society’s recognition of the sanctity of life.” We’ve also heard from those who, despite lacking convincing supporting evidence, proffer the principle of deterrence.

Woody Allen likely put the latter argument into proper perspective. “Capital punishment,” quipped Allen, “would be more effective as a preventative measure if it were administered prior to the crime.”

What keeps ginning up the argument are periodic revelations of capital punishment blunders. There are errors and there are capital punishment errors. They’re acceptable in baseball, unconscionable on death row.

We now know, for example, that since 1989, 273 defendants have been exonerated by post-conviction DNA testing. In fact, Florida has the dubious distinction of leading the country in reversals of death sentences with 23.

According to the Innocence Project, in most exonerations faulty eyewitness testimony was a determining piece of evidence that sent the suspect to jail in the first place. And the more we find out about eyewitness testimony, the more concerned we should be about its certitude–from faulty witness memory to subtle police coercion.

All of this was center stage earlier this year when the state of Georgia executed Troy Allen Davis. It became national public record that–among other revelations–seven of the nine eyewitnesses against him had recanted over the years.

Well, nobody’s perfect. And that’s the point. Which begs the question: How do you defend not being leery of executing the not-guilty when you don’t have access to an error-free system?

If you’re former Illinois Gov. George Ryan, you can’t. “I am haunted by the demon of error,” he has acknowledged. “Error in determining guilt and error in determining who among the guilty deserves to die.”

Which brings us to the most recent of capital-punishment subplots. State law, trial dynamics and jury variables.

A local jury recently recommended death for convicted cop killer Humberto Delgado.

Another jury recommended life for Vincent Brown, convicted of kidnapping his girlfriend, locking her in a car trunk and then strangling her. The forensic photos were beyond gruesome.

But Delgado, the subject of considerable sanity speculation, murdered Cpl. Mike Roberts. His widow testified in the sentencing phase of the trial, and Chief of Police Jane Castor was on hand for support. They were key variables.

The point is not that Cpl. Roberts doesn’t deserve justice. Of course not. Nor his wife the opportunity to put his life–and that of her family–in tragic context. Nor that Chief Castor wasn’t doing what she should for the family of the fallen. But no one would deny the difference in human dynamics in the two disparate sentences.

And one other point. Juries, of course, vote on a sentence. The Delgado-jury ballot was 8-4 for death. In other words, a third of the jury didn’t think it appropriate. Didn’t matter.

But it does. That’s the issue.

Shouldn’t the ultimate sentence require unanimity on a literal matter of life or death? Especially since the law requires a unanimous verdict of guilty to convict a defendant of a crime? But a majority decision is sufficient for a death sentence?

It is–if the trial is in Florida.

The Sunshine State is the only state where a jury can recommend death by simple majority. Even Texas–TEXAS!–requires a 12-0 jury vote for the recommendation of death.

But, yes, a judge may overrule a jury’s death recommendation. But it’s rare.

Which brings us back to the death penalty, per se, whatever the variables. French poet/novelist Victor Hugo had an existential spin on the subject. “Three
things belong to God and do not belong to men,” he asserted. “The irrevocable, the irreparable and the indissoluble.”