Tuesday, August 18, 2009


So Jason Getsy is now dead. His last words, according to the Youngstown Vindicator, were words of apology to the family of his victim:
“To Chuck and Nancy Serafino and your loved ones, for all the pain that I have caused you, it is my earnest prayer that God grant you peace,” Getsy said before the lethal injection that ended his life. “I’m sorry. It is a little word, I know, but it’s true.”
To which Chuck Serafino said it's not enough.
“It’s too little, too late,” Chuck Serafino told reporters afterward. “He’s been asked a number of times to tell the truth, and he has not.... I wrote to him, asked for the truth. He lied then, he lied to the parole board. To this day, he has never taken responsibility for what he did.”
Look, nobody downplays the crime. Nobody disputes the pain of the Serafino family. But they really can't have it both ways. If the only way they'll get peace (or you think they will) is to have an apology freely given a significant length of time before death, then the execution, even if it's accompanied by an apology and acceptance of responsibility, won't bring peace.

So no peace. No real satisfaction. None of that so-called "closure." Just another killing with new friends and people who care left to suffer a loss.

Are we a better people now? A better nation? Rommell Broom is still up next.

And then there's Troy Davis (I know, I know, I talked about these same things yesterday).

Doug Berman quotes from a story from Time on the SCOTUS decision to remand. These are the last two paragraphs (which Berman quotes):
The court's August eruption highlights once again the fundamental screwiness of America's death penalty. In the marble halls of our rational humanity, we demand absolute clarity and justice. As one of the many judges who has reviewed Davis' case puts it, "I do not believe that any member of a civilized society could disagree that executing an innocent person would be an atrocious violation of our Constitution and the principles upon which it is based."

But most murders don't happen in the precincts of the rational or the just. They happen on the late-night mean streets, where truth is often a figment, and memory is as slippery as the greasy pavement.

Interesting paragraphs, those. The first raises profound legal questions and includes a forceful attack on either our society or on at least two members of the United States Supreme Court. The second points to a separate but deeply troubling problem. Here, in order.

"[M]arble halls of . . . rational humanity" is a lovely phrase, suggesting legislatures and courtrooms and all the trappings of an elaborate Constitutional and legal framework. The image is echoed by the quote from the unnamed Judge.

I do not believe that any member of a civilized society could disagree that executing an innocent person would be an atrocious violation of our Constitution and the principles upon which it is based.

But it's an empty phrase. As the words of Justice Scalia (joined by Justice Thomas) in dissent from the Court's order in the case make clear, it is very far from clear that the execution of a factually innocent person would be any sort of violation of the Constitution, "atrocious" or otherwise. Are we, then, not a civilized society? Or is that judge simply wrong?

The late Harry Blackmun wrote, in dissent, in Herrera v. Collins

I have voiced disappointment over this Court's obvious eagerness to do away with any restriction on the States' power to execute whomever and however they please. . . . I have also expressed doubts about whether, in the absence of such restrictions, capital punishment remains constitutional at all. . . . Of one thing, however, I am certain. Just as an execution without adequate safeguards is unacceptable, so too is an execution when the condemned prisoner can prove that he is innocent. The execution of a person who can show that he is innocent comes perilously close to simple murder.
(I've omitted citations.) Justice Blackmun wrote those words for himself alone. No other Justice signed on to that portion of his opinion, just as no other justice joined him in his passionate renunciation of the death penalty in Callins v. James:

From this day forward, I no longer shall tinker with the machinery of death.

Who are we, then, really? And what are we?

Those "marble halls" are balanced, in David von Drehle's final paragraph, echoing Raymond Chandler's vision of "these mean streets."

But most murders don't happen in the precincts of the rational or the just. They happen on the late-night mean streets, where truth is often a figment, and memory is as slippery as the greasy pavement.

And isn't that key? On Berman's blog, I posted a comment, pointing out what follows.

We really can't, most of the time, have any real confidence that we're making the right judgment about who should or should not be killed without either ignoring reality or deluding ourselves about it. And regardless of the percentages and no matter how many protections we build in, if we kill enough people, we'll make mistakes, get it wrong some of the time.

For some of us, that's a sufficient basis by itself to oppose the death penalty in all cases, regardless of what other arguments for or against we may accept. For others, while the occasional death of an innocent or undeserving person may be a shame, it is an acceptable price to ensure that some who are guilty and deserving will be executed.

And oughtn't we, as a society and if we're serious about this, admit that truth and then either abandon the quest to execute or acknowledge that sure enough, by whatever measure, is good enough?

You see, that's finally the thing. I'm as opposed to the death penalty for the guilty as I am for the innocent. It's wrong, regardless. But if we care about getting it right, if we care about killing only the guilty or the deserving (whoever they may be), if want executions to be more than random happenings untethered from reality except that a bunch of jurors once thought it apt in some case that they may or may not have gotten right, if the details matter, if close enough for government work isn't close enough for this sort of government work, then it's hopeless, whether you endorse the death penalty in the abstract or not. And if you don't buy that, if you're willing to take the omelet approach which requires breaking a few eggs, if killing Troy Davis or Jason Getsy is so important that it doesn't matter whether it's appropriate to kill those particular guys, then we should admit that, too.

This isn't about the Constitution. It's not about civilization (whatever that might be). It's about acknowledging a truth. We can't be sure. And if we're going to kill anyway, we really should admit that we don't care about being sure.

When we face that, maybe we'll back off. Or maybe not. And won't either of those decisions say something about who we really are as a people?


  1. "Most murders don't happen in the precincts of the rational or the just. They happen on the late-nite mean streets, where truth is often a figment, and memory is as slippery as the greasy pavement." I'm sorry, but that is such complete BULLSHIT!!!! It says to me, "Oh, no one really knows what really happened so how can we punish anyone?" Why even have a criminal justice system then?
    Let's take the case of Fred Keck. He lied (lay?) in wait for his next door neighbor for a couple of hours and when she got home from work he stabbed her 72 times. He then took some of her stuff,took her car, enlisted some of his scumbag friends and went back to the house. They dumped her body in a pit and went on about their business. You'll be glad to know, Mr. Gamso, that the jury spared his life and he'll be out of prison when he is about your age. I'd like to know what it says about our society that we valued Helen Johnson's life so little that we did not care to make her murderer pay the ultimate price.

  2. Or, take the case of Aldo Pacheco,which also didn't happen on the "murky streets" or whatever that foolish comment said. In that case the DA didn't even ask for the death penalty because of the judicially engrafted "future dangerousness" jury finding. You see, he killed the only person he probably was going to, his ex-wife. He shotgunned her to death, along with her friend who was with her at the time. His guilt was never in doubt, as he had a standoff with the police in her residence for a couple of hours before he tried to kill himself by blowing half his face off.
    I guess since we might hypothetically execute an innocent person some day we cannot execute someone whose guilt is firmly established. That's a helluva standard. Maybe we should apply that standard to other aspects of life too. We should ban any activity that could possibly result in an innocent, nonresponsible person dying.

  3. Like I said, I'm opposed to the death penalty regardless.

    That we are likely to have killed innocent people (for whatever it's worth, polls indicate that about 2/3 of the population agrees that we probably have), and that if we kill enough people it's a certainty that we will kill innocent people, is not I don't think the most compelling reason to abandon the death penalty. Though it's surely a reason.

    Getting it wrong is more than just killing the innocent, though. If you believe that not all who murder should be executed, heck, if you just accept the fact that the Constitution prohibits mandatory death penalty laws, then there's also the question of which people who kill should be killed in turn. Determining factual guilt to some satisfying degree of certainty (which is not, and cannot be, the same as absolute accuracy) is a bagatelle compared to delving into the human heart and soul and saying who should live and who should die.

    Perhaps you feel confident in your ability, or in the ability of the legal system, to make those determinations with precision and accuracy. I don't share that confidence.

    But all of that is not, finally, my point. We can all point to cases where, assuming we're correct about what happened, someone did something truly horrific. I've defended some of those folks, perhaps you've prosecuted them. Some are remorseless. Some are not. Some end up sentenced to die, some don't. There's little logic to it.

    Under Ohio law, the nature and circumstances of the offense can weigh only on the side of mitigation. Conceptually, that's probably at odds with how most people would conceive of a death penalty statute where the more horrific the crime the more appropriate would be death. But that's the law, however illogical, and the legislature, which is happy to add new death specifications and curtail opportunities to undo death sentences has never seen fit to change that rule. So be it.

    But here's the thing, and the point, in plain language rather than von Drehle's poetry: We can be sure, but that's an attitude and belief. Absolute accurate knowledge is something beyond human capacity. We will make mistakes. If we, as a society - and as individuals for that matter - are comfortable with the fact that from time to time, whatever the frequency, we'll kill someone we shouldn't, if we think the death penalty is so important that a degree of error is acceptable, then we should feel comfortable saying so.

    And, by the way, that's not an argument against punishment. (Hell, it's not even, directly, an argument against executions.) Death is different if only in its finality.