Thursday, June 11, 2009


If not him, who? If not now, when?

You have to ask those questions sometimes if you try to be a thoughtful abolitionist, if you're someone who doesn't see the world in stark contrasts of black and white, good and evil, yes and no, right and wrong. If you believe in nuance. If ambiguity and uncertainty matter.

This is an entry about the death penalty, and let there be no mistake - I oppose it. Always. Ever. Without exception. I believe that the government should not be in the business of killing its people. Period.

And yet, and yet. Because you see, what do you say about the poster children?

On Monday, in Colorado, an Arapahoe County jury voted unanimously to sentence Robert Keith Ray to die. (Story here.) Ray, it seems, had arranged for Sir Mario Owens to shoot to death Javad Marshall-Fields and his fiance, Vivian Wolfe, both 22, recent college graduates. That was in 2005, a week before Marshall-Fields was to testify against Ray who was facing criminal charges in another killing. Ray will now join Owens as two of the three men on death row in Colorado.

Ronald Clark O'Bryan, known as the Candy Man, was sentenced to die for the 1974 killing of his son. O'Bryan took out life insurance policies on his son and daughter, then poisoned their Halloween candy, as well as the candy of three other children. Only his son ate the poisoned candy. (See 5th Circuit opinion.)

Archie Dixon and Tim Hoffner are on death row in Ohio for burying their roommate Chris Hammer alive in order to get and then sell his car. (Ohio Supreme Court opinions here and here.)

It's not hard to find more of these stories of what certainly seem to be cold, calculated killings carried off without qualm or remorse. Many of the 3,300 or so men and women on death row around the country are there for crimes that look, well, evil.

Look, it's easy to say the death penalty is wrong because we can make mistakes or because we're too often killing the seriously mentally ill or people who were badly represented or whose backgrounds are so horrific that it curls your toenails to hear about it. And it's racist and classist and sexist and just generally unfair. But there are those cases.

There are, surely, a few people who actually were deterred by the fear of the death penalty. And there are certainly a few who would have been deterred by it if only they had believed we meant it. But the evidence for general deterrence is very poor - about as bad as the evidence that the executions actually cause additional murders (though, again, there are a few cases where people have killed in order to get executed).

But if you take away the innocent and the crazy and the desperate, if you correct for the racism by being more willing to kill those who killed people of color, if you fix the random geographic disparity and really do provide adequate counsel and resources. If you make a real effort to acknowledge that we make mistakes and simply refuse to kill if there's even a marginally plausible claim of error. If you depoliticize. If you really try to figure out who's the worst of the worst who did the worst things. If you do it right (and let's imagine that to be possible).

Then would it just be an argument about morality? What would Gautama do?

We kill to exact revenge - in the name of society rather than for the individual because we treat the crime (all crime) as tearing the social fabric. That's the point of criminal law as opposed to tort law or vigilantism. And some crime cries out for vengeance. So said the Ghost of old King Hamlet, though the son dithered.

We kill to express outrage at the enormity. What else could have been fitting for Tim McVeigh? Or the Candy Man? We hope it will teach a lesson about right and wrong.

And we kill in the hope that it will deter.

But if it's just morality, maybe you really do need to do a cost/benefit analysis. How many lives must one killing save before it's justified? May we torture if doing so might turn up the information to stop the bomb from going off? Is it ever OK to do evil to prevent a greater evil? Are you a pacifist?

One day, when I'd been a full-time criminal defense lawyer for about five years, I looked over a list of all the men and women I'd represented and realized that over half of them had been charged with or convicted of some form of homicide. That was extraordinary. I've met an extraordinary number of people who've killed. They've killed by accident, on purpose, for profit, from passion, in self-defense, in drunken stupors. They've killed strangers and friends and lovers, children old and young, rivals, and people who were just in the wrong place at the wrong time. They've been grief-stricken, proud, fearful, and altogether without emotion. They've blamed themselves, society, the police, the victim. For some, it's simply unimaginable that they'd ever do it again. For others it's a virtual certainty that, given chance and circumstance, they would. Shit happens.

I think some of them deserved killing. I don't doubt that Hitler did or Pol Pot or Stalin. The Reverend Colonel Chivington who led the Sand Creek Massacre might qualify. You can make a pretty good case for the guys who signed off on the memo suggesting that the benefits in lives saved were outweighed by the costs of installing an $11 part in a Ford Pinto to prevent it exploding into flames on a rear impact.

But you know, we're not all that good ourselves. Our judgments aren't that reliable. We're not that infallible. And we're not that pure.

There used to be a difference between courts of law and courts of equity. Law was about, well, law. The law courts dealt with the rules. Courts of equity were about fairness. One of the maxims of the equity courts was that one should not go there with dirty hands. Kind of like Jesus' point about letting the one without sin cast the first stone.

So there are folks who deserve killing. The real question, at least for the non-pacifist, is whether we deserve to kill?

To those who'd answer yes, indeed, to all, I'd suggest a quick reminder of what Oliver Cromwell said to the General Assembly of the Church of Scotland, what the great lawyer Irving Younger, in the first issue of the Georgetown Journal of Legal Ethics, described as "the best guide to thinking about anything":
I beseech you, in the bowels of Christ, think it possible you may be mistaken

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