Divine Wrongs

Nine days ago I asked why we should kill Johnnie Baston.

Today the Parole Board offered an answer.

Baston Clemency

When you get right down to it, all that is little more than 

Well, why not?

I suppose that's not entirely fair.  It makes their decision sound cavalier and off the cuff.  It's not that.  It's just dismissive.  The Board offers four reasons to kill him.

1. Mitigation doesn't outweigh aggravation.
2. Baston still says he didn't personally kill Chong Mah though he was there and participating in the robbery.
3. "While many members of Mr. Mah's family favor a commutation to life without parole, Mr. Baston's  lack of accepting responsibility, criminal history, and the severity of the execution style killing of Mr. Chong Mah outweigh their personal opinions regarding the death penalty and their wishes as to the sentence imposed in this case.
4. The conviction and sentence have been affirmed by the courts and there doesn't seem to be anything legally wrong with those decisions.

Let's take those reasons in turn.

Mitigation doesn't outweigh aggravation

That's close to a given.  The way you get onto death row in Ohio is for the jury and trial judge (or as in Baston's case three-judge panel) to make the formal finding that aggravation outweighs mitigation beyond a reasonable doubt.  The way you stay there is for the state courts on direct appeal to independently (that is, without any deference to the jury's or trial judge's [or panel's] decision) make the same finding.  In cases like Baston's where the crime occurred before January 1, 1995, that finding on appeal will have to be made by a three-judge panel of the court of appeals and then, separately, by the seven Justices of the Ohio Supreme Court.  (In never cases, the court of appeals doesn't get to make that finding, but the supremes still have to.)

So what are you going to present now that will change that?  The crime is likely the crime.  There may well be more mitigating evidence than was presented at trial, but if there is, it's almost certainly been reviewed by various courts which have said they don't think it's worth squat.

Which means, when you get right down to it, the claim is that the trial court reached a legally defensible conclusion.  And the fact that he's shown over the 15 or so years he's been on death row that he's capable of living in prison without being any trouble to anyone is irrelevant because we don't care about things that weigh on the side of mitigation.

Baston still says he wasn't the killer

He claims he didn't kill Chong Mah. He's always claimed that.

From the Board's perspective, that means he doesn't accept responsibility.  And really, They think it's important for him to acknowledge that he did it because the alternative is really unlikely and hell, he's got to admit sometime he's an evil lying SOB if he wants them to think he's a really good guy - which is something they don't much care about anyway.

The victim's family doesn't want him killed

Which isn't that big a deal from the Board's point of view.  Maybe they're buying into what Julie Bates, the elected Lucas County Prosecutor told them:  It's an important thing for everyone to consider always, but the law is the only thing that matters.  Or maybe they're buying what Steve Maher (they misspell his name) from the Attorney General's office said: Let one guy live because the victim's family doesn't want him killed and you have to let them all live under those circumstances.  And then where would we be?  Where, indeed?

The Courts didn't reverse the conviction or sentence.

Of course, if they had, the Board wouldn't be doing a clemency review.

Here's what it really is, and why the Board is so fundamentally wrong.

Clemency is about mercy, not law.  Law authorizes, but mercy is a gift. Here's the first paragraph of an essay by Sister Helen Prejean from 2005.  She was writing about the death penalty and clemency and George W. Bush as Governor of Texas and about Karla Faye Tucker whose murder by Texas Bush approved.

In the twenty-first century, a state governor represents the last vestige of the “divine right of kings,” because he has absolute power over life and death—especially when such power is entrusted to politicians motivated more by expediency than by conscience. Faced with a pending execution, no governor wants to appear callous about human life. So governors appoint pardons boards and meet with legal counselors, who take the political heat for controversial cases. All governors claim to agonize over death penalty decisions. All claim to scrutinize every possible angle of the cases of condemned persons facing execution under their watch. 

What follows is a demonstration of the emptiness of those gubernatorial claims. But what I'm focusing on here (we can still fantasize that John Kasich will take his clemency power seriously and use it generously) is that first clause and in particular the described roll of the governor in the process.  His power is

the last vestige of the "divine right of kings."

The idea behind divine right was that God actually chose who would be king and that the king acted as god's surrogate within the kingdom.  When the King (and it's appropriate to capitalize that here) chose to grant clemency, it was really God's gift transferred through his (God was always understood to be male) agent, the King.

And, importantly, God's gift of mercy on earth (like mercy in the afterlife at least according to some doctrine) cannot be earned.  After all, if it were earned, it would be pay or reward, not a gift at all.

OK.  I understand that governors are not, in fact, surrogates for god and their acts (and the acts of their Parole Boards) are not divinely authorized.  But the idea remains.  In fact, the power of executive clemency is, like the idea of governmental immunity, a remnant of the divine right of kings and the idea of the king and kingdom as divinely ordained.

And until very recently, executive clemency was understood to be about mercy rather than dessert.  We've lost that not because we've just figured out that our chief executives aren't in fact agents of a divinity simply carrying out his will (or whims).  We've lost it because politics trumps all.

And so the Parole Board unanimously says that Johnnie Baston should be killed because he hasn't presented them with a legally compelling reason to grant him life.

We are, says the Parole Board, just one more court making sure that none of the others screwed up too badly.  And the Governor, just another judge.  It's all about the law.  And if the law doesn't require life, then why not kill him?

But, but, but (I sputter), because at this point the wrong question.  The right question is what mercy begs, not what law requires.

The answer to that is surely that Johnnie Baston should be granted life.