Wednesday, January 26, 2011

One Voice Every Week

My experience tells me that our justice system can be even more effective and fair without Death Rows and the death penalty.
My experience tells me the same thing, but I'm a criminal defense lawyer, a capital defense lawyer, an ACLU lawyer, and a long-time anti-death penalty guy.  Who cares what I have to say?*  Terry Collins, the guy who wrote those words in yesterday's Columbus Dispatch, is different.
For more than 32 years I had the honor of working at the Ohio Department of Rehabilitation and Correction. During my career I held various positions, including warden, regional director, assistant director and then director. In carrying out the responsibilities of my positions and the law of this great state, I personally observed the execution of 33 men from 2001 to 2010.
So maybe his voice is a bit persuasive in a way mine isn't.  I can live with that.
Collins isn't a lawyer, and he isn't claiming that the death penalty is unconstitutional.  Neither did Ohio Supreme Court Justice Paul Pfeifer last week when he called for abolition.  Pfeifer said that the law he wrote doesn't work.  It was supposed to ensure that the worst of the worst and only the worst of the worst were sentenced to die and then executed.  But it didn't work out, and he's figured out that it can't.
Collins, too.
All 33 times, in the back of my mind I questioned: Had all the reviews and appeals got this case right? Did the process make certain, absolutely, there was no mistake or error? I wondered that because I had previously walked people out of prison who were found not guilty after years of incarceration. What if we got it wrong for those we executed?
It's not just the risk, and as he acknowledges, the reality of grotesque, horrific error.  It's not just the killing of the innocent.  There's that larger failure.
I used to say that if 20% of the folks on death row are the worst of the worst people who did the worst of the worst things, another 20% are clearly not.  The remaining 60% may or may not be.  And nobody has any idea which of the men and women on the row are in which of those categories.  And nobody much cares.  Collins gets that.
Too often our justice system does not place the worst of the worst on Death Row. I saw some of the worst offenders in our prison system, and often they were not on Death Row. It surprised me, at times, to see who did end up on Death Row.
He talks about the cost of the system which is appropriate.  We know that killing people is expensive.  And if we want to have even a modicum of comfort that we're getting it right and doing it fairly (and I know some people don't want that, but they really don't have even the vaguest idea of what our society is about), it has to be expensive.  But he gets at the numbers, and recognizes that they aren't all ginned up by anti-social activist lawyers on my side of the aisle.
It costs millions of dollars to execute people in Ohio, more than life imprisonment. Those costs begin at the trial phases and continue through appeals to pay for lawyers, judges and prisons. The expense of county and state resources that go into two separate trials in death penalty cases (one to decide innocence or guilt and the second to decide life or death) adds up quickly before anyone spends a single day on Death Row. Then the appeals begin, compounding these enormous costs. It is also expensive to maintain Death Rows once offenders begin to serve their time there. Costs related to the death penalty should be of serious concern, given our state's need for cost-effective judicial reform. 
And then there's that other cost folks can care about.  The human cost.  Not to the guy we're strapping to the gurney, not to the people who love and care for him, nobody seems to have any interest in their loss.  No, it's the cost to the family and friends and loved ones of the victims of the underlying crimes.
There is another cost that we do not always consider: that borne by victims' families. It is emotionally traumatic for the families of victims to be recalled into courts year after year because of so many death-penalty appeals. I observed firsthand the emotions of the victims' families. An increasing number of families ask the state not to pursue the death penalty so that they are not faced with the painful task of attending appeals hearings, and so they can achieve closure. Life imprisonment without parole offers justice that is swift, certain, effectively severe and perhaps more sensitive to the needs of healing victims' families.
There is, of course, a cost to other sets of people.  To the jurors and judges who actually say the words.  (And I've noticed that, at least in Lucas County, Ohio, the judges mostly don't add when they impose sentence, "May God have mercy on your soul."  Which if you're a believer may be the cruelest sentence of all.)  I'm not talking now about them.  I'm talking about the last group, the ones who choose (they are all volunteers) to become professional killers, the hit men for the state.  Collins doesn't talk about them, and I suppose I know why.  But there's evidence from around the country that killing takes its toll even when it's done in the name of the state and with the sanction of the courts and amid the technology of modern medicine.  That's not surprising.  Being a killer isn't good for the soul.  No matter what.
And then, of course, there are the constitutional and legal questions.  And the moral ones.  Collins doesn't go there, either.  He's making the argument that matters to the Ohio General Assembly and the voters, the people who can stop this mess for good.  It's a policy argument, as Justice Pfeifer's was.
And his call is ultimately for the same thing.  The Governor can put a stop to the immediate killings.  Then the General Assembly just put an end to it.  We can join the News (Jersey and Mexico).
I've spent my time crying in the wilderness.  I'm not alone and I'm not stopping.  But let's hear it for the other voices, the ones you don't expect.
Last week, it was Ohio Supreme Court Justice Paul Pfeifer, the man who helped write Ohio's death penalty law.
Now it's Terry Collins who directly oversaw executions, who knew the men who were killed - and the ones who weren't.
One a week.  Let's keep it going.
Who's next?

*I'd like to think it's millions, but I know better.  Perhaps you do, my faithful reader, but it takes a bigger village than you and I.

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