The Death Penalty, Part One

23 Apr

From .Copyright © 2013 Michael H. McGee. All rights reserved. Please feel free to share or re-post all or part non-commercially, hopefully with attribution.

After many years as a lawyer I have some good ideas on the subject of the death penalty. I’ll approach the subject by first, though, by telling a story from my own youthful experience.

I spent a year in Vietnam. I entered the Army young, before college, looking for adventure. In order to be posted to Vietnam I had to volunteer, and receive a top-secret security clearance. This was because I went to Vietnam as an advisor in early 1965, before that summer’s “big buildup” where every American combat soldier was ordered to Vietnam against their will. Thus I saw the country as it was before America “bombed it into the stone age.” I loved Saigon and its people, and I loved Vietnam. The South Vietnamese rulers were rather bloody, though, in how they ran things.

Once I was staying with the woman I loved at her house near the Ho Tam Cong Hoa swimming pool in Saigon. In the newspaper I read that there was to be a public execution by firing squad of four men who had been convicted of war profiteering. The public execution was intended to be an example to those Vietnamese who sought to make excess profits from business activities related to the fight against the Viet Cong.

I was taken aback. During the course of my duties as a US Army advisor it had become clear to me that almost every South Vietnamese partisan of any rank, right up to the top, were making obscene personal profits from standing against the Viet Cong “insurrection,” including the shady business of diverting American aid dollars into personal accounts. In my youthful yet even then cynical soul I was putting it all together: these four men must have failed to pay off the higher-ups, unlike most of the other war profiteers. The message of these executions was, to my mind: if you cut out from your profit chain the payoffs to the political leaders, you will die like a dog in the dust.

Nevertheless, I was insanely curious to watch an execution by firing squad. As a fairly sheltered American boy, I’d seen firing squads in the movies and read about them in books. I was at the stage in my life when I wanted to experience the harsh things of the world. In Vietnam I would occasionally seek new experiences even when doing so put my life in grave danger. In my innocence I wanted to be like Audie Murphy, the movie star war hero. I even acquired in Vietnam a Thompson sub-machine gun to carry, just like Audie Murphy carried in his movies.

The execution was set for six the following morning in a public square. I got up early and took a cyclo (a three-wheeled pedal taxi) to the square. Thousands of local people had already gathered to watch the execution. The crowd was densely packed so I couldn’t get too close to the front. It didn’t matter. Since I was about a foot taller than everyone else, I had a good view.

A low stage area had been prepared for the execution, which wasn’t too different from the kind of stage that might be used for a rock band. There were four large wooden stakes set firmly in the ground. A wall of sandbags about eight feet high had been piled up a few feet behind the wooden stakes. There was a standard speaker’s podium with a microphone and speakers, set out front and to the side of the four wooden stakes.

Four men were jerked out of a truck by soldiers and securely tied to the wooden posts, then blindfolded. The South Vietnamese officer in charge of the executions then went to the podium and delivered a long speech in Vietnamese, probably on the evils of profiteering. Next a line of uniformed soldiers with rifles came out and faced the four staked men.

The officer in charge gave crisp military orders. The soldiers raised their rifles. At the stroke of six o’clock a sharp barked order was given. The soldiers each fired a shot. The four bound men danced like marionettes, then slumped into postures similar to the images of Christ breathing his last on a crucifix.

It was over and the loudly murmuring crowd dispersed. I found a blue and yellow Renault taxi to return to the home of my lady. I’d seen my first execution. It was an event almost as in the movies I’d grown up with, nothing more. I knew then, though, that the death penalty had uses which were grossly improper. This was what I had seen that day.

Throughout history people have been put to death for improper reasons, from religious fanaticism to racism to the desire for power, to corruption or simple vengeance. All these rationales for the death penalty are barbaric and should not be a part of the jurisprudence of any civilized society, including that of the United States.

Nevertheless, there is a place in civilized society for the death penalty being used as the proper judgment for quite a few crimes. I’m a supporter of the death penalty, but the manner in which it’s presently carried out is barbaric to some degree. In addition, the rationales used for the death penalty are for the most part false and hypocritical.

As a lawyer I’ve never handled a capital case. In North Carolina we have more than our fair share of brilliant death penalty defense attorneys, and I’m not one of them. Even so I’ve represented about forty criminal clients where a life sentence was on the table, so I know my way around the courtroom.

What are the only real and useful reasons to continue to use capital punishment as a part of our criminal justice system? First, to remove from the earth people who have by their actions given up their right to remain alive. Second, to improve the stability of the prison system by removing persons from the system who are most dangerous to guards and to other inmates. Third, to prevent ongoing activities over many years by the worst incarcerated felons, who may have opportunities to damage the community outside the prison.

Notice I use the phrase “by their actions.” In this phrase I include the whole realm of legal and constitutional due process protections, which in most cases prevent innocent persons from being convicted of capital crimes. I deliberately use the phrase “in most cases.” There is no guarantee of perfection in any area of human life. As a matter of fact there is close to a guarantee that humans will never be able to reach any level of perfection.

Yet should we ban the use of antibiotics because some people have anaphylactic allergic reactions to these drugs and die, and these unfortunate innocents wouldn’t have died if no one was able to use antibiotics? Or should we ban the use of automobiles because about thirty-four thousand largely innocent people are killed, and millions more are maimed or injured, each year in automobile accidents?

The death penalty is strong medicine for maintaining the stability and health of the community, even though occasionally unfortunate innocent persons will die from the administration of the cure. The comparisons I’ve given in the previous paragraph are to me final and dispositive against the argument that the death penalty should be banned because some innocent persons will undoubtedly be executed. Ban the death penalty only if you are willing to ban antibiotics and automobiles.

Yet as the death penalty is administered today across the United States, it doesn’t meet the minimum standards for justice. The practices and procedures surrounding the processes leading up to the execution of criminals are at the present pathologically flawed. They MUST be altered if execution for a crime is to be used in the manner for which it is most useful. You’ll be able to easily follow my reasoning, and I trust you, dear reader, will find these standards for justice to be acceptable and needful. If you’re vigorously opposed to the death penalty, take a look anyway and maybe you’ll learn something new.

I certainly don’t expect the hard-core anti-death penalty fanatics to support these or any other reforms of the process. For them the only proper course of action is to abolish the death penalty. For these zealots, the more backward and tangled and clumsy the legal practices and procedures are, the better they like it. The sheer awkwardness of the present system is what keeps alive those who should be executed.

The modern manic and chaotic legal practices feed right into the hands of the scrupulous advocates who view any death sentence as a violation of human rights and human decency. I respect the right of death penalty opponents to have their opinion. What I’m looking for, though, is a more nuanced approach, which doesn’t cater to either of the extremes of opinion.

To summarize, as this penalty is administered today across the United States, it doesn’t meet the minimum standards for justice. The practices and procedures surrounding the execution of criminals are at the present pathologically flawed. They MUST be altered if execution for a crime is to be used in the manner for which it is most useful and least easily abused.

Let me give you some very good reasons for retaining and expanding the use of the death penalty. These reasons are not new to me, yet I’ll not burden you with footnotes except for one direct attribution. My spin on some of these reasons may be new; yet again I can’t be sure of any originality. So much has already been said on the subject by very learned persons.

Nowhere on this list is punishment or vengeance or deterrence. None of these classic reasons provides, at the present time, a moral or even supportable rationale for handing out the death penalty to the perpetrator of a heinous crime. They belong in the dust bin of history.

1. The death penalty is historically valid as a remedy for heinous crimes. The founding fathers chose not to outlaw it in the US Constitution, and thus by definition it does not fit the standard for “cruel and unusual punishment.”

2. When a person is sentenced for a heinous crime to a true term of life without parole, or even a lengthy term that expires only when the person is old, such a person has “nothing to lose,” in the most extreme meaning of that phrase. Such a person will almost always be a constant problem in the prison, plus creating a very serious problem if their maximum security is ever relaxed, or the individual ever escapes from prison, or if this person fools the authorities and is paroled later in life.

3. The author Jerry Bledsoe says that people who are sentenced to long prison terms, or life without parole, are for a lifetime a clear and present daily danger to the other inmates in their prison. Many of those other inmates are not nearly as much a threat as those sentenced for heinous crimes. These lesser criminals do not deserve to be punished inside the prison by those who have nothing to lose. All the time they are incarcerated, though, there is a danger to these other prisoners that they will either be killed or maimed, or sexually assaulted, or badly influenced further into criminal thinking, by the inmates sentenced for heinous crimes. We need to look very hard at the effect on the other prisoners of keeping those convicted of heinous crimes alive for as much as forty or fifty years of mixing with the rest of the prison population.

4. The author Jerry Bledsoe also says that those who are sentenced to long terms for heinous crimes are a very grave threat to the guards and other prison staff who have to be exposed to them on a daily basis. Do we want to daily force our honorable and hard-working state and federal prison employees to expose themselves to those maximum risks in order to make what is a very paltry living for their families? Further, the necessity for these guards and other prison and law enforcement staff to expose themselves to those inmates sentenced for heinous crimes tends to create a hardened and cynical attitude on the part of the guards. This may lead some of these dedicated men and women to lose their equanimity and commit violence and other crimes themselves against or with those sentenced for heinous crimes, or against other inmates, out of anger, resentment or having simply absorbed the values of the most heinous inmates.

5. The constant appeals that add years to the legal process encourage lawyers and other people assisting the inmates to lie, and to violate known ethical standards, in their zeal to “save a life”. If “any action” is appropriate for a lawyer to take in order to save the life of an inmate who has been sentenced to death, then would that include bribing a judge or attempting to bribe the governor? Would it include “eliminating” witnesses before time for the person’s trial, so that they won’t even be found guilty and will be let loose? What is the real meaning of being willing to take “any action” to save the life of a heinous criminal? Mostly it involves lying, and creating false defenses for the sole purpose of dragging out the time. A lawyer should never face the dilemma of either maintaining high ethical standards, or feeling somehow responsible for a client’s execution.

6. It is a well-known and well-documented fact that many hardened criminals are able to continue to influence the actions of persons outside the prison where they are incarcerated. If a man sits in prison for forty or fifty years, he has all the time and all the motivation to keep up his contacts outside the prison. There are also very many documented cases of persons sentenced for heinous crimes being able to continue to operate a criminal enterprise from inside the walls. There are also many documented cases of such an incarcerated criminal being able to act inside the prison walls to plan and execute vengeance against those, either inside or outside prison walls, he believes turned against him or who he just doesn’t like, or who he perceived as being his competitors or successors in crime.

7. An incarcerated criminal should never be allowed to operate outside the walls of his or her prison. Yet most prison walls are so porous they permit all kinds of outside activities by those sentenced for heinous crimes, from criminal enterprise to vengeance to commercial trade. And this will not likely change, due to legitimate budgetary constraints.

8. Most prisons are fairly good at separating inmates who are under a death sentence from the general prison population, and more tightly regulating the conduct of these inmates on “death row.” If the death sentence is eliminated, then so will death row. Inmates with life sentences for heinous crimes will be mixed with the general population and the higher degree of control will be lost.

9. There is simply no way for the average person to even come close to imagining what life is like inside a high-security prison for a long-term inmate who is not on death row. Such a prisoner has only one blank day after another, lived with monotony within walls of stone. The only companions for such an inmate are others who are similar or worse in their outlooks on life. All there is to look forward is a stunted, depraved life without any material comforts or normal physical outlets for passion.

10. A person who is sentenced to life in prison is stripped of any expectation of peace or serenity, ever again. As Milton said, “All ye who are without hope enter here.” I question whether a life sentence is in any way better than a death sentence. With a life sentence, life is ripped and torn away daily, until it is only a prolonged version of a death sentence. In “the joint” death walks daily side by side with life. This is how it always has been and always will be, even in the most humane prisons. The pathological horror of each day is simply inconceivable, especially to the honest, well-meaning people who spend the most time protesting the death penalty.

Okay, so now you know most of the reasons I am in favor of the death penalty. Now it’s time to look at the reasons I object to the death penalty as it is presently administered. Part Two of this post will follow.

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