The Death Penalty, Part Two

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

Okay, in Part One you learned 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, and show how we can do it better.

The barbaric custom of public executions must be eliminated. Almost every execution chamber in the United States has large windows, and a gallery for an audience to assemble. The ensuing public spectacle is an utter disgrace. I am well aware that executions have been public events almost since the beginning of time. Now is the time to change this custom. Executions must be conducted in private.

The custom of holding executions in the night after a major public announcement, and inviting an audience to view the executions, lives on only because it’s the way it’s always been done. I doubt if many people have ever even questioned the practice. Yet each execution becomes a horror movie, a gore-fest, a slash/snuff drama.

The spectacle ends up being played out in the press in great detail by interviewing the either strutting or crying people who were in the viewing room. In some cases a video of the execution is released. The media loves executions, because, “If it bleeds, it leads.” Angry shouting torch-bearing mobs of pro- and anti-death penalty villagers outside the gates make good theater as well, loop-played over and over again for the 24-hour news cycles.

There were very definitely good reasons for holding public executions in the past. Those affected by the crimes could see for themselves that the perpetrator was dead. Additionally, in the past there were often problems with the identity of individuals. Those witnessing the execution could visually confirm that the right person was being executed. At this time in history there should be no problem with properly identifying the person to be executed.

If no one who knew the inmate witnessed the person’s passage from life to death, it would also be fairly easy for the executioner or other officials to be bribed to let the real person go, and execute another person or bring an already dead body into the execution room. This is not a trivial problem, even today. There may be a need for two or three neutral persons to observe each execution to make sure there is no slippage. They could be retired FBI agents or other trusted or certified persons from outside the state of execution, similar to NFL referees.

There is just no good reason to make a public announcement of the time and place for an execution. Further, the individual being executed has no legal right to a public execution. It could even be said that a person being executed has a right to privacy with regard to his or her demise. Death chambers should be deep inside prisons, with only prison officials and neutrals present to identify the individual and to verify the cessation of life.

There should be a date and time for finality of the writ of execution, with the actual event taking place at any time within three to seven days thereafter during normal business hours. A simple press release, along with form affidavits from the neutrals, should be given out within a day following the execution and prior to the release of the body. No further discussion should be had with the outside by anyone within the prison system.

It’s all in a day’s work, nothing more. Such a matter-of-fact process would not indicate indifference. It would show professionalism in performing a difficult task in a responsible manner. We must have some faith in the wardens and other staff within the prison system. Most of them are good people doing a distasteful job.

The methods of execution which are currently used in death chambers are still much too archaic and uncertain to meet twenty-first century standards. A part of the inability of reasonable people to use the most reasonable and painless of all the methods of execution is directly related to the theatrical aspect of the public witnesses to the execution. The prisoner is given his “last meal.” Then he spends time with the clergy of his choice. Then after being forcibly strapped down on the execution table, he is invited to give his “last words.” This whole process is pure theater, and detracts from the solemnity of the process.

The most “modern” current method of execution, lethal injection, is still set up in a way that is a ritual which plays to the crowd. There is much drama as the chemicals are prepared and the intravenous needle is inserted into the arm. And the chemicals are somewhat unreliable and the needle can sometimes get inserted wrong or jostled out of place. Either of these two elements of the public drama can needlessly prolong the suffering of the inmate being executed. The only one not pleased by the crowd-pleasing drama is the inmate being executed. We need to respect the inmate at the time of death in order to live up to our own moral standards and to have a satisfactory twenty-first century result.

With a private execution there’s much more freedom in the method, as there’s no one to impress with a ritual. The goal is to use the utmost simplicity which is consistent with certainty of death and complete lack of suffering. One of the few methods of execution which is consistent with these humane goals is the simple injection of morphine. Morphine is a commonly available drug which may be obtained with little fanfare by qualified persons. It is a central nervous system depressant. When injected it induces a state of euphoria and detachment from reality. Injected in higher doses it continues to increase the state of detachment, reduces muscle tone, and reliably leads to a peaceful death.

The inmate being executed may be seated in a normal-looking room in an easy chair (with seat belts to use if needed), dressed in his normal prison clothes, with peaceful music and mild lighting. A strong but not fatal dose of morphine may be injected intramuscularly without significant disturbance in the peaceful atmosphere. In an hour or so, when the inmate has reached an optimal state of euphoria and detachment, he may be moved to a gurney in the same peaceful place, and laid out flat. At this time he is injected, either intramuscularly or in a vein, with the fatal dose of morphine. Within the next hour he passes away without any pain, agony, or uncertainty. The body can be stored in a refrigerated compartment for twenty-four hours before being quietly released for burial.

As you now know for sure from this example, there is at least one much better way to execute an inmate, than the dramatic-melodramatic ways we use now. The method is fool-proof and permits the inmate a last time where he may be peaceful if desired. When we eliminate punishment and vengeance and deterrence as reasons for executing prisoners, then the need to inflict an agonizing ritual on the inmate evaporates. There is only peace: including a measure of peace for those who are executed as well as for those who are carrying out the execution. We must consider the state of mind of all those who are involved in the process.

Let’s move on to another phase of the process. In the early days of the death penalty in Western society there was a trial in the morning and a hanging in the afternoon of the same day. In the Nineteenth Century the British Parliament established a two-week waiting period between a sentence of death and the carrying out of the execution. Presumably this was to give time to see if new witnesses or evidence would come forward. It also gave time for an inmate’s solicitor to lodge an appeal of the verdict and see if the higher court would accept the matter for appeal. The higher court seldom accepted such discretionary appeals, so the sentence was still carried out most of the time at the end of the two-week period.

Now the United States has gradually over time developed the post-sentencing process into an apocalyptic drama which usually lasts fifteen or twenty years. States with the death penalty probably see some of their death row inmates die of natural causes before the appeals process is complete. Needless to say, this chaotic process is sheer madness.

There is not even one single reason why the lengthy and branching appeal process for capital cases should be continued for one more day. There are better ways to handle capital cases. The need for a better way is extremely urgent and goes to the very heart of our system of justice.

Before we look at those better ways, let’s look at a few first principles. There are those who want to focus on the death penalty as a way of setting examples to other criminals of what will happen if they commit this or that heinous crime. A public execution process is essential to the nebulous concept of “deterrence.” This ancient concept of deterrence must be eliminated. Focusing on the vague concept of deterrence makes it difficult for good people to find the courage to execute people, and for other good people to be willing to make the execution process private.

Let’s look at whether the death penalty has any deterrent effect on the behavior of those who may commit capital crimes. Eighty-eight percent of the country’s top criminologists do not believe the death penalty acts as a deterrent to homicide, according to a recent academic study. M. Radelet and T. Lacock “Do Executions Lower Homicide Rates?: The Views Of Leading Criminologists,” 99 Journal of Criminal Law and Criminology, 489 (2009).

An even more recent report concludes that we cannot rely on studies which claim either that there is or is not a deterrent effect. The study Deterrence and the Death Penalty was released in April of 2012 by the National Academy of Sciences. After reviewing more than thirty years of research on the subject, the truth is clearly stated. “The committee concludes that research to date on the effect of capital punishment on homicide is not informative about whether capital punishment decreases, increases, or has no effect on homicide rates.”

So, there is no reason whatsoever to believe that here, now, in the twenty-first century, in the Western world, any arguments for or against a deterrent effect for the death penalty are valid. We must cease and desist from using the word deterrence in our discussions of the death penalty. The idea that the public execution of one person will stop another person from committing a heinous offense is so vague and unreliable that it fades into the realm of the mystical. The concept may have been valid in earlier societies of village justice or tribal rule, and may still be valid in some parts of the world where tightly knit communities take care of their own. In our modern Western virtual society, the concept just fails to play.

Now let’s look at another death penalty principle, the possibility of injustice. There has always been a great variability of the skills and abilities of prosecution and defense attorneys, judges, and the various investigators involved in the judicial process from indictment through sentencing. The justice system is only as good as the people involved in the process.

For the first time, here in the twenty-first century, we have the ability to dispense a more complete justice than was possible at any earlier time in history. Even a casual reading of history will show that in the past, the execution of individuals was at best accompanied by hit-or-miss justice, and at worst involved deliberate deception, fraud, malice or racism. If we look only to the past, then any thinking or feeling person must oppose the death penalty. Therefore it is quite imperative for us to look at the present moment to make the death penalty, from today forward, a product of the impartial application of the first principles of justice.

The professionalism of police and crime scene investigators, the rise of forensic experts, the analysis of DNA, and the availability of data and instant communications on computers, has already provided the necessary “tipping point” for the criminal justice system. We simply need to make sure all these new tools are available in each capital case, from the initial crime scene to the final sentencing. In rural areas or small towns the CSI aspect may be less available, yet modern scientific detection and analysis can be brought to bear as each case progresses.

Now back to the better way for the criminal justice system to handle capital offenses. The current system of local trials and then waiting fifteen years from the time a person is convicted and sentenced to death, and the time his appeals run out, is absurd and is completely unworthy of the American judicial system, which many would say is the finest system of justice in the world.

We need to structure a system, designed specifically for capital cases, which will provide a time-delimited straight line from sentence through appeals to carrying out the execution. The goal should be a maximum of four years from verdict to execution. Even a time frame of from five to seven years, though, would be a vast improvement.

Each state needs to establish a special Capital Crimes Unit, which is set up for the sole purpose of aiding local authorities in the investigation of potential capital cases. There would be several branches of this CCU in different parts of the state. These permanent units would employ only the best and the brightest and would be able to call on outside resources as needed. The purpose of such Units would be to assure that investigations of such crimes adhere to the highest standards and use only the latest forensic equipment and expertise from the time of commission of a heinous crime up to the time the trial is over.

For you state legislators out there, this Unit would certainly have some budgetary needs. Having these units, maybe scattered at five or ten locations throughout the state, wouldn’t cost all that much, since they would be small and would call on already existing resources as needed, and federal funds would assist. Assigned officers could investigate and process other serious crimes when there were no capital cases on the menu. CCU’s would free up significant amounts of time and resources for local police and sheriff’s departments, which can then better concentrate on the more common types of crimes which like caustic acid erode our communities on a daily basis.

The next step is to set up a special unit within the state’s highest level of trial court solely for the preliminary court proceedings and the trial of capital cases. The judges and prosecutors would have special high level expertise in the field. Defense attorneys would have to be certified as death penalty competent before they could sit first chair in a capital case.

There is more than ample precedent for using specialized trial courts where specialized experience is necessary in order to reach a competent verdict. The United States Tax Court is one such institution. All of the judges have expertise in the tax laws. Since 1969 it has had full trial jurisdiction over tax cases. Appeals are directly to the US Court of Appeals, thus shortening the process by bypassing the normal federal district courts entirely.

As another example, in my home state of North Carolina we have the North Carolina Business Court, which is a special branch of the highest level trial court, established in 2003. Cases involving complex and significant issues of corporate and commercial law are assigned by the North Carolina Supreme Court to special superior court judges with specialized business experience, who oversee resolution of all matters in the case from pre-trial through final verdict, with appeal directly to the Court of Appeals.

In such a specialized court system, qualified defense attorneys will have the same access to sophisticated forensic methods and experts as the state. This guaranteed access and certification of first-chair counsel will tend to level the playing field, since most capital defendants are represented by court-appointed attorneys.

Juries should not decide on life or death after a conviction. The judge should pronounce the sentence, based on pre-sentence reports, and on written criteria set up in somewhat the same manner as the Federal Sentencing Guidelines, which are used for the sentencing of everyday felons in the federal courts.

There must be one route of appeal only. Each state has its own appeals process. In Vermont, trial court verdicts are appealed directly to the state’s Supreme Court. In North Carolina there is an appeal to the Court of Appeals and then to the Supreme Court. Once the state appeals process is exhausted, then the only remaining path must be to petition for a hearing by the United States Supreme Court. Since the Supreme Court denies almost all petitions for certiorari, this must be the end of the road for almost all death row inmates.

With better and more specialized trial courts and investigative practices, there will be fewer injustices, thus substantially fewer opportunities for death row inmates to launch parallel sideways attacks in other courts, called collateral proceedings, against their verdicts.

Since many appellate judges are sympathetic to attacks on the death penalty, these judges at the present time will stay an execution for the flimsiest of reasons. Each state, and Congress, must pass laws setting stricter standards for collateral court proceedings, placing the emphasis on the direct appeals process being the end of the line.

The current legal processes for handling those alleged to have committed heinous crimes, and who have been convicted of committing capital crimes, is a bloody mess. There is absolutely no excuse for such a messy and convoluted process to be tolerated for even one more day in our somewhat civilized twenty-first century society.

“To be patient means not to get angry with those who harm us and instead to have compassion for them. That is not to say that we should let them do what they like.” – The Dalai Lama of Tibet.

During the stages of apprehension, trial, conviction and sentencing of those who have committed the heinous crimes worthy of a death sentence, compassion means no more and no less than making sure that all the elements of twenty-first century justice are applied at every stage in the process, with dogged persistence and with open-handed generosity.

These most modern principles of justice must be applied for the benefit of the community and the victims, as well as for the defendant. Compassion at this stage also means allowing anger to flare where it will, since compassion must be extended to include the victims of the crime and all others affected by the crime, including the community. With generosity and patience we must recognize that most of the persons affected by a crime are on fire with antagonism and hatred, and that we must let the fire burn for a time.

Once a sentence of death is handed down, though, we must be patient with those who have been sentenced to death, and exercise compassion and equanimity toward them. The current system of chaotic and multi-pronged appeals and last-minute considerations by the Governor are not even remotely compassionate to the convicted inmate.

The current system is also a chamber of horrors for the victims of the crimes. I wonder if there is anyone among the anti-death penalty crusaders who has ever considered how often the victims must revisit the killing fields of their own grief and anger during the long years of chaos following a death penalty conviction.

In this Rube Goldberg process the tables are turned: the inmate becomes the victim of the legal and political crusaders’ self-involved and desperate need to emote their own twisted emotional needs. The inmate sits in a death row cell, largely mute, and passively peruses a purple parade of passion. Seemingly well-meaning people on both sides of the death penalty issue use death row inmates for their own purposes and twist themselves into the pretzel shapes of their own internal and distorted illusions of right-wrong, good-bad, heaven and hell.

And at the very end of the line there’s one more type of person eager to take personal advantage of the situation. The governors of the various states make a Shakespearean drama out of the off chance of a last-minute reprieve from execution. Up to the very last minute, prison officials sit by a phone connected directly to the governors’ office, and reporters talk and talk about what the governor may or may not do. The decisions of the governors are almost always the same: no reprieve. The acting out of the elemental drama is great publicity for the governors, and increases the perception in the community of their power and authority. And in the end the drama convinces the electorate that the governor is not soft on crime.

Most of the governors in our great nation are capable of making breath-taking decisions with little waffling. So just cut it out, governors! Don’t contribute to the torture of all the parties by pretending to be indecisive. Make your final decision at least a week before the date of the execution. If the governor won’t do it, the legislature can set the deadline. Disconnect the direct phone connection into the execution chamber. Give us all a needed break! Stop crudely using death as a self-centered tool for your own personal and political aggrandizement!

All of the overly dramatic activity I’ve described in this series has the effect of diverting scarce government funds from other more productive criminal investigative and prosecutorial activities, and keeps the courts and judges tied up on a few cases when there are many cases that need their attention. It’s time to end the charade.

The Congress has the authority to establish and to limit the jurisdiction of federal courts. A set of laws removing the authority of the federal district courts and courts of appeal to hear collateral criminal cases, including death penalty matters, originating in the state courts is both necessary and proper.

There’s already such a rule in place regarding collateral attacks in the federal courts regarding civil matters heard and decided by the state courts. It’s called the Rooker-Feldman doctrine, and requires that civil cases decided in the state courts must be appealed only through to the highest appellate court of the state, after which a litigant’s next and only recourse is to request the US Supreme Court to hear the case.

In this series I have described the clear and practical ways to make the death penalty acceptable in twenty-first century Western society. Until these emotionally complex yet physically simple steps are taken, the drama of the death penalty is a highly questionable exercise in ancient brutal combat and political exploitation.

All this pathology has little or nothing to do with the victims of crimes, the perpetrators, or with constitutional principles of justice. Do any of these matters of the heart mean anything to us?

Tags: capital punishment, crime, death penalty, humane death penalty, legal analysis