Two teenagers decided to rob someone. They shot to death an innocent man who just happened by. He was a firefighter. There are the usual calls for blood, for vengeance. A friend wrote and asked what he could say to friends of his who wanted the teenagers to get the death penalty. Here, slightly edited, is what I wrote back.
Some people you won't be able to reach. Not today, not this week, not this month, maybe not ever. I've had clients on death row who believed in the death penalty. I'm not talking volunteers here. I mean people who didn't want to die but thought there were others who should. There's no accounting for some things.
And when the brutal crime happens, when the unthinkable gets thought, when it's your loved ones, fergodssake. Blood will have blood. Repay. Eye for eye. Hell, I want to do it myself.
So I understand the desire to strike out. You're talking about two idiot kids who killed a decent, hardworking man, a wholly innocent man who spent his life trying to save others. For no reason. They probably deserve to die. Hell, maybe that's too good for them. A gentle stick in the arm, little pin prick and then a quiet peaceful death. Where's the equivalence?
But here's the legally available alternative: Death in prison. The law calls it "life without the possibility of parole," but it's really death in prison. Day by day. Every day. Confined. Treated like cattle. Obey the rules to the letter or get stuck in the hole. Be a troublesome prisoner - even a little troublesome - and you get stuck in the hole. 23 hour a day lockdown. No contact with anyone else. Your food (and it's not good food and there isn't enough of it) slipped through a slot in the door.
Rehabilitate yourself and you still spend all day, every day, for the rest of your life, in prison. With no hope. No chance of getting out. None.
Like I say, death in prison. Slow and painful.
Or look at it another way. You can't bring the good man back. He devoted his life to trying to save others. He didn't evaluate the quality of the folks he tried to get out of the burning building. Do we honor that memory by killing? In his name? To make up for what they did to him?
Teens are stupid. We all were at that age. Science tells us that the brain isn't fully developed until about age 25. Teens are impulsive and reckless and, well, stupid. Sister Helen Prejean tells us that we're all better than the worst thing we've ever done and none of us deserves to be judged on that basis. I think that's probably right. I'm not saying forgive and forget. But death? How does it help, anyway? What do we gain from it?
We won't even save any money. Capital trials are vastly more expensive than ordinary murder trials. Capital appeals drag on for years and cost a ton of money, too. All that time (and we could be talking a couple of decades or more), the focus is on them, on the two punk kids. Shouldn't the memory be of the firefighter rather than the punks who killed him? And that cost again. It'll actually end up costing a couple of million each to kill the kids. Keep them in prison for the rest of their lives for somewhere around $400-600,000. And make them work to cover some of that cost. Use the savings to hire more police or more firefighters.
And, of course, there's morality and the idea that it's just wrong to kill and that there are as many studies showing that executions actually increase the number of murders as there are showing that executions save lives and anyway you're going to trust a government that can't do anything right to make reliable decisions about who should die and how?
You can toss Bible quotes back and forth with the folks who believe that Jesus approved of the death penalty and you won't make any headway, but as James Carville said, we're right and they're wrong. Cain was not to be touched. Nobody was without sin, so the first stone didn't get cast. And there is that whole seamless garment of life the Pope sometimes talks about. It's not about they're earning the right to live, it's about our not having the right to kill. Or there's the Sanhedrin who said that it would be barbaric to use the death penalty even once in 70 years.
My own take, for what it's worth and having met and gotten to know and worked for men charged with capital offenses and men sentenced to die, from having gotten men off death row and from having my clients executed, my own take is something like this. I don't doubt that there are people who deserve killing. Some of them are on death row, some not. Some of those on the row are among those who deserve killing. Others aren't. Frankly, we're not all that good at figuring out whose in which category. But even if we know, even then, we don't deserve to kill.
It's a two-way street, after all.
I've talked before about the Ohio aggravated murder statute. Aggravated murder is our only capital offense. There are a number of forms of aggravated murder, and it only gets to the death penalty if you also add a specification, but here's the first form of the offense: No person shall purposely take the life of another with prior calculation and design. OK, so on Tuesday, some prison guards took Darryl Durr from a holding cell to the death house at the Southern Ohio Correctional Facility. They strapped him down to a table. They stuck needles in his arms. Then they pumped him full of a barbiturate (sodium thiopentol) until he was dead. That is, they purposely took the life of another with prior calculation and design. Me? I don't think anyone has the right to do that.
Even to people who deserve killing. If you can figure out who they might be.