The Death Penalty


1. Executing the Innocent
2. Finality
3. Law as Front and the Rule of Law

1. Executing the Innocent

In a rather bad movie called The Life of David Gale, Kevin Spacey and Laura Linney play criminal law activists trying to undermine support for the death penaltyby demonstrating that the state had executed an innocent man. For while there is ample evidence that a frighteningly high percentage of those convicted of serious criminal offences are innocent, there has been no proof of wrongful executions - until now.

There is increasing certainty that the State of Texas in 2004 executed a man who was not only innocent of the alleged crime, but indeed was executed for a crime that never occurred. Cameron Willingham was convicted for setting fire to his house and thereby murdering his three infant children. He was convicted on the basis of forensic evidence as to the cause of the fire, which it turns out was shockingly flawed. The State's own Forensic Science Commission has now determined that the conclusions of the investigators, that the fire was the result of arson, were based on a "collection of personal beliefs that have nothing to do with science-based fire investigation."

What is even more outrageous is that before Willingham was executed, independent studies of the evidence came to the same conclusion, and their reports were sent to the Board of Paroles and Pardons within the Governor's office as part of a petition for a review of his case. The report was ignored and Willingham's petition was denied without a hearing. The Governor denied a stay. He was executed in the face of growing evidence of his innocence. Similarly, other States have denied the convicted access to independent DNA testing of evidence, tests which might just exonerate them.

The outrageous logic of this mindset was captured best by Justice Scalia of the Supreme Court in another death row case this year, writing in his dissenting opinon that would have denied a review of the case of a man convicted and sentenced to death, "this cout has never held, that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is 'actually' innocent." Finality and integrity of process are to be privileged over justice and human life.

There are other powerful reasons why the State should not be in the business of executing its people. From a philisophical and moreal perspective, we are never going to progress towards a more enlightened civilization in which the sanctity of human life and the dignity of the person is afforded the highest value so long as we have the institutionalized killing of our citizens. Indeed, there are only two 'liberal democracies' left in the world that do so. But all that aside, the increasing evidence that we are executing the innocent ought to put paid to the practice.
- Gamma.

2. Finality

If they are looking for people to sit on a Death Panel, Scalia seems to have experience. It is a very chilling and sad quotation. It is hard to comprehend why we are still dealing with theses issues.

If we lived in a world where reason was the absolute ordering principle for public policy and law there would not be, of course, a death penalty. It is irrational and unconnected to any articulable rule of law goal or objective.

If we lived in a world where reason was not absolute but simply a powerful ordering principle, states that adopted the death penalty would have a elaborate and public procedure for validating the certainty of guilt before execution. Finality is an important rule of law principle but it should never be allowed to trump innocence. All the more so when the consequences of the finding of guilt are

But we live in a world where rationality consistently loses out to politics, tribalism, dogma, fear, hatred, and bloodymindedness. The structures of current American legal institutions ape adherence to rational concepts but they are regularly undermined by intellectual dishonesty (or laziness), careerism, cultural anomie, political shamelessness and plain, old, old-fashioned bat-shit craziness.
Poor Cameron Willingham probably thought he'd get a fair shake. Instead, he was swept up and aside by a system that has given up on the principles on which it was founded.

It could be worse. The next step is the world where irrationality is the foundation of public policy. Where the law is a front. Where fear is the only certainty. Where execution becomes a poitical tool to keep people off balance. Martin Amis offers a descriptive account of this in Koba the Dread, his idiosyncratic but persuasive exploration of Stalin's terror.

I've had the good and bad fortune to work as a lawyer legal systems that have demonstrated all of the above characteristics. What I learned was that the differences are often subtle in practice but they make themselves known in the results over time. - Beta.

3. Law as Front and Rule of Law

"B" writes above that "it could be worse. The next step is the world where irrationality is the foundation of public policy. Where the law is a front. Where fear is the only certainty." He concludes that the difference between our imperfect system, and that which simply uses law as a front, is subtle. That is a chilling, indeed a deeply frightening thought. Bright lines may keep us on the right path, but hazy distinctions may be missed in the mists of crisis.

In navigating a ship in close waters, pilots lay "clearing bearings" on the chart in the form of sharp lines on either side of the intended route, and a safe distance from the rocks. Using a compass, bearings are periodically taken from some pre-planned navigational mark and compared to the clearing bearings on chart. If the mark bears less on the compass than the clearing bearing, you are in safe water - if it bears more, you know you are standing into danger.

We need clearing bearings to tell us when we are standing into danger, drifting across the distinction between a nation governed by the rule of law, and one that increasingly uses law as a front, for political ends. At the current stage of our national journey, the treatment of detainees may be our guide.

Detaining people who were captured in other countries, with which we are not at war, and which do not constitute battlefields so as to trigger the laws of war, is fraught with legal issues. To then subject them to indefinite detention, with the prospect of subjecting them to some form of unique "military commission", which will be stripped of the normal due process and procedural protections required by both domestic and international law, should have us searching for our clearing bearings. When we hold those people for over seven years without even having decided on how to try them, we are into the realm of Kafka, and the law begins to simply look like a front.

In Kafka's The Trial, Joseph K lives in a land in which all is "governed by law, there was universal peace, all statutes were in force". But he is arrested and subjected to a judicial proceeding for charges that are never disclosed to him, on evidence he never sees or hears, and he is tried in a process in which he is never permitted to fully participate. Law is a facade, behind which K is finally executed, before the trial even concludes, for reasons which he never understands. Our treatment of "unlawful enemy combatants" shows us drifting across the line, and we need to pay closer attention to our clearing bearings. - Gamma.



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