Measure Twice, Cut Once

At some point, you start to wonder.  A couple of months ago, I wrote this about Kevin Keith.

He's on death row in Ohio.  He was convicted of shooting six people, three fatally, in revenge for a member of the family being a police informant in a drug investigation.  As happens, the case was appealed and the Ohio Supreme Court affirmed the conviction and death sentence. The state's case was, frankly, shaky to begin with, though it was enough to convince the jury. But as it happens, there's a wealth of evidence, most of which the state knew and concealed at the time of trial, indicating that (1) Keith didn't do it, and (2) Rodney Melton did.
Here's a sample. Melton apparently was hired to do the killing.  Melton knew information only the killer could have known.  At least one survivor explicitly and insistently said that Keith wasn't the killer.  The state presented perjured testimony, asserting that a nurse who did not exist told police that one of the victims named the killer as Kevin.  (The actual nurse, one who did and does exist, says she was never told any name.)  And he had a substantial alibi.

OK, as I routinely say at this point, I don't know what happened that evening in February 1994.  What I know is that if it heard all that evidence, it's remarkably unlikely a jury would have found Keith guilty; and it's even less likely he would have been sentenced to die.

I'll repeat that last part, phrased differently, because it's particularly important to emphasize here.

I don't know whether Kevin Keith is factually innocent or not.  I'm not saying he is.  I am saying that a jury confronted with what we know now would probably not have convicted him and would almost certainly not have sentenced him to die.

This, however, is not a post about Kevin Keith.  Nor is it about Tyrone Noling (about whom I wrote on Saturday) who also may or may not be factually innocent and who, like Keith, would likely not have been convicted had his trial lawyers known what we know now.  Nor is it about the others in similar situations.  It's not a post about the innocent or about the guilty.

I want to write, instead, about who we decide to kill.  And about some of the underlying theory.

So I have to take you back and do a little history of the death penalty in America since 1966.  I picked 1966 because that's the year, as we like to say about so many things, that everything began to change.

In 1966, as it regularly does, the Gallup organization asked people their views of the death penalty.  That year, support was at 42%, the lowest it had been and the lowest that (so far) it has been. (Data available here.)

On June 2, 1967, Luis José Monge, was killed in the gas chamber in Colorado.  He was one of only two men executed that year, and he would be the last for nearly a decade.

For five years, it was unofficial.  Something was happening, and the federal courts were taking notice.  They stopped every execution.  In 1972, they changed the rules.  The case, known as Furman v. Georgia, was argued in the Supreme Court by Anthony Amsterdam.  Here's how the Death Penalty Information Center explains.

In 9 separate opinions, and by a vote of 5 to 4, the Court held that Georgia's death penalty statute, which gave the jury complete sentencing discretion, could result in arbitrary sentencing. The Court held that the scheme of punishment under the statute was therefore "cruel and unusual" and violated the Eighth Amendment. Thus, on June 29, 1972, the Supreme Court effectively voided 40 death penalty statutes, thereby commuting the sentences of 629 death row inmates around the country and suspending the death penalty because existing statutes were no longer valid. 

There was, of course, great celebration among abolitionists.  It was misguided and short lived.  The Court had emphatically not said the death penalty itself was unconstitutional.  It said the nation's death penalty laws, as written, were unconstitutional.  As a friend said about 40 years ago of Ann Margaret's vibrato, you could drive a truck through that space.

Furman was decided in June.  By November, Gallup showed support for the death penalty had risen to 57%.  And climbing.  States which had been content with not executing anyone for years, rushed to enact new laws they hoped would satisfy Furman.   They took two forms.  If the death penalty was arbitrarily applied, some states figured, a mandatory death penalty would resolve that problem.  Other states lit on something that ended up called "guided discretion."  Juries or judges could still decide what to do, but their discretion was constrained by factors and standards and guidelines and whatnot (the details varying from state to state).

Back in 1901,  Mr. Dooley said,

No matther whether th’ constitution follows th’ flag or not, th’ Supreme Coort follows th’ illiction returns.

And the opinion polls.  In 1976, Gallup showed support for the death penalty at 66%.  Nearly two-thirds of the states had enacted new death penalty laws.  And the Supremes looked down and said those providing for guided discretion were good and those calling for mandatory death sentences were bad.  Because, the court didn't quite say but pretty clearly meant, the death penalty is only for the worst of the worst, and that has to be a case-by-case determination.

As it develops, deciding who is the worst of the worst involves (according to the Court) providing some mechanism by which the jury is to measure the thing that makes a killing and the killer more deserving of death against things that make the killing and/or the killer, what - less deserving of death.

In 1978, In Lockett v. Ohio, the Supreme Court said that Ohio's new death penalty law failed because it limited the things that could be weighed on the side of a life rather than a death sentence.  The Court said the jury had to be able to consider anything relevant to a life sentence, and Ohio's law didn't allow that.

Which takes us to 1981 and gets very close to the point of this history.

In 1981, Ohio enacted a new death penalty law, one designed specifically to solve the Lockett problem.  Roughly (very roughly) it works like this.

The worst form of the crime of homicide is, in Ohio, called Aggravated Murder.  If a person is charged by the grand jury with Aggravated Murder and also charged by the grand jury with a death specification (something that makes Aggravated Murder especially bad), that person is eligible for death.  And if the jury finds the person guilty of Aggravated Murder and also guilty of the death specification, the case goes to a second trial at which the State tries to prove that the death specification (not the killing, just the specification) outweighs whatever the person can show that makes life more appropriate than death.  The circumstances of the killing itself, are relevant to the determination only if they make death less appropriate than life.

If that sounds complicated, it is.  If it sounds confused, it is.  If it sounds at least a little goofy, it is.  If it sounds like a real effort to come up with a narrow death penalty, it probably was.

One of the chief sponsors of the law was state senator Paul Pfeifer, a Republican.  Indeed, he's known as the "father of Ohio's death penalty."  Pfeifer, still a Republican, is now Ohio Supreme Court Justice Paul Pfeifer.  And he's appalled.  

See, over the years, the legislature has expanded the definition of Aggravated Murder.  And it has expanded the number of death specifications.  and the Ohio Supreme Court (often over the dissent of Justice Pfeifer) has read the specifications broadly rather than narrowly.  And then it turns out that levels of independent review that Pfeifer built into the law don't actually do anything much.

And as it happens, juries are wildly erratic in making their decisions about who should live and who should die.  And geography matters.  And class matters.  And the attitudes of the local newspaper matter.  And race matters (a lot).  And dammit, this just isn't the law Pfeifer had in mind.

Those people, the worst of the worst who did the worst things, Pfeifer has no problem saying they should be executed.  He thought so in 1981 and he thinks so now.  But he's come to see that we're sending folks to death row who aren't they.  And we're killing some of them.  (And maybe he's beginning to notice that even under the best of circumstances you can't tell who they are, though I'm not sure he's getting that even now.)

So back in May, as Ohio was well into it's killing spree with a murder a month for god knows how many years into the future as we clear out death row by means of death, the Columbus Dispatch's Alan Johnson reported, he had this idea.  He proposed setting up a blue-ribbon commission to review every guy on death row.  Not to see whether to grant mercy (that's for the Governor and the Parole Board), but to see whether death is the appropriate punishment, to see whether the jury really got the death vote right, to see who is really the worst of the worst who did the worst thing.  Johnson wrote,

Pfeifer, a Republican who is unopposed for re-election to a fourth term on the court this fall, emphasized that he is not suggesting that convicted killers are innocent, or that any should be set free.

"The point is whether or not death is the appropriate penalty," he said.

The response from those in power was, shall we say, less than enthusiastic.

Oh my stars and garters! (As the same friend who made that long-ago comment about Ann Margaret's vibrato said about something altogether different the other day.)  A commission?  Heavens, no.  Why it would mean the end of the Republic.  We'd have to delay executions.  We'd have to see if we'd made a bad judgment along the way.

Time passes and things change.  In May, it was Justice Pfeifer, a lone voice it seemed crying out in the wilderness of Republican officialdom.  Suddenly, he's not alone.

Via Doug Berman, this latest article by Mike Wagner and Alan Johnson from the front page of Sunday's Dispatch.  Here's a lengthy chunk of that article.

Cases such as [Kevin} Keith's, coupled with Ohio's pace for a record number of executions this year, have prompted current and former high-level officials to call for a comprehensive review of all Death Row cases - and possibly a moratorium on executions. The officials include two former prison directors and three prominent Republicans: Ohio Supreme Court Justice Paul E. Pfeifer, former Attorney General Jim Petro and state Sen. David Goodman of New Albany.

Adding to the momentum are five death-sentence commutations by two governors since 2003, passage of a strong DNA law to avoid wrongful convictions, and exonerations of three inmates because of new DNA test results.

Pfeifer, who first urged a Death Row review in a Dispatch story in May, remains the strongest advocate for a review. His six colleagues on the court, plus Strickland and Attorney General Richard Cordray, have no interest in a study commission, much less a moratorium.

"This isn't about me or anything I might do," Pfeifer said, "although I might have to revisit that if the new governor says, 'I don't want any part of it.'"

Pfeifer was one of three Republican state senators who resurrected Ohio's death-penalty law in 1981 after the old law had been declared unconstitutional. Pfeifer said he is not suggesting that any of the 160 men and one woman on Death Row are innocent or should be set free, only "whether or not death is the appropriate penalty."

Petro supports the death penalty but favors forming an independent task force to examine Death Row cases and halting executions while that review is being conducted.

"We should show restraint, caution and diligence with these cases," Petro said. "DNA has opened a lot of people's eyes with what it can do. When you are talking about death, you can't afford to make even one mistake."

Two former state prison directors, Reginald A. Wilkinson and Terry Collins, who witnessed 34 of 39 executions since 1999, agree that the Death Row cases should be reviewed to see if they are the "worst of the worst," the standard set down when Ohio resumed capital punishment 11 years ago.

Wilkinson, director from 1991 to 2006, takes it a step further.

"I'm of the opinion that we should eliminate capital punishment," he said. "Having been involved with justice agencies around the world, it's been somewhat embarrassing, quite frankly, that nations just as so-called civilized as ours think we're barbaric because we still have capital punishment."

This is a powerful set of voices.  But they're still in something of a wilderness.  Governor Ted sees no point in further review.  General Cordray is sure there's never been less than perfection on his watch.  Pfeifer's the only one on the supreme court to think there's reason to check.

Really, why bother.

The witches raised apparitions who told Macbeth to "beware Macduff" but that he need fear no man "of woman born.  Besides, he was told

Macbeth shall never vanquish'd be until
Great Birnam wood to high Dunsinane hill
Shall come against him.

Made fearful by the first statement though comforted by the second and third, Macbeth figured there'd really be no harm, and the wiser, safer, course of action would be to kill Macduff.  No need, but why not?

I'll make assurance double sure.

Of course, things didn't work out quite as Macbeth planned.  The prophecies were, as prophecies tend to be, dangerously vague and misleading. 

In 1994, late in his career on the bench, Harry Blackmun, who voted against the Court's decision to shut down the death penalty in Furman and voted to reinstate it four years later, came to understand that it couldn't be done right.  You can't have a system that is both objective and subjective simultaneously.  He laid it out in Callins v. Colins, dissenting from the Court's refusal to hear the case.

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored — indeed, I have struggled — along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor.1 Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question — does the system accurately and consistently determine which defendants "deserve" to die? — cannot be answered in the affirmative. It is not simply that this Court has allowed vague aggravating circumstances to be employed, see, e. g., Arave v. Creech, 507 U. S. 463 (1993), relevant mitigating evidence to be disregarded, see, e. g., Johnson v. Texas, 509 U. S. 350 (1993), and vital judicial review to be blocked, see, e. g., Coleman v. Thompson, 501 U. S. 722 (1991). The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution.

Pfeifer's not in Harry Blackmun's camp.  At least not yet.  Neither is Petro.  They're not calling for an end.  They're saying that every case should be looked at with fresh eyes.  they're talking just about double checking.

You know, I say it over and over in this blog.

What's the harm?