Wednesday, February 23, 2011

Whole Bunches of Voices

It could have been New Jersey or New Mexico or Montana or Maryland.  It could have been Connecticut or New Hampshire.  It could have been Illinois.  Some day it could be Ohio.  But it wasn't any of them.
In all those states (except Ohio, of course and alas) the legislatures have repealed or come very close to repealing the death penalty.  And like I say, it could have been one of them, but it wasn't.
Instead, it was New York, and the question wasn't whether the legislature would repeal the death penalty but whether it would fix it so that it could again be part of New York law.
A moment of history.  New York had a storied history of capital punishment.
The first person killed in an electric chair?  William Kimmler in New York.
Ruth Snyder's electrocution
The most famous photograph of an electrocution? Ruth Snyder in New York.
The place where the Rosenbergs were killed?  Sing Sing in New York.
The place where in People v. LaValle, the Court of Appeals*  said that New York's less-than-ten-year-old death penalty law violated the New York Constitution.
It's that last item that's the genesis of this week's look at (listen to? description of?) Voices on the death penalty.  
The LaValle court didn't say that the law was unconstitutional because the state couldn't kill people.  It said the law was unconstitutional in a a single detail:  The instruction the judge was to give the jury regarding what happened if they were deadlocked.  That instruction (read the opinion if you want the details, I linked to it above) was unduly coercive, the court said, and that's a constitutional flaw that could only be remedied by rewriting the statute.
So there's the set up.  New York's death penalty law could be fixed with what was, frankly, an easy rewrite.  But this was New York, not say Texas or Ohio.  I mean, if you could imagine for even a moment that the Texas Court of Criminal Appeals** or the Supreme Court of Ohio*** actually declaring that its state's death penalty law was unconstitutional but could be fixed, you'd realize that the legislature would fix it in, well, a New York minute.  But, again, this was New York.  So their was no quick fix.  (In fact, there was no fix at all.  So New York is, as it was before George Pataki rode the need for a death penalty law into the Governorship, without the death penalty.)
What there was instead of a fix were public hearings.  5 days.  146 witnesses.
Russell Murphy, is a professor at Suffolk University School of Law in Boston.  He's also a friend of the family of Jill Russell Cahill who was murdered by her husband.  He ended up on death row for the killing but was taken off in a decision by the Court of Appeals a year before LaValle emptied the state's death row.  He testified at those hearings.  Then he gathered all the testimony, edited the hell out of it, organized it, and published it with what seems to be a near-but-not-quite vanity press (Vandeplas Publishing).  The book is called Voices of the Death Penalty Debate: A Citizen's Guide to Capital Punishment, and I was generously afforded a free copy (FTC rules obeyed, you'll note) in exchange for reviewing it.
And I wish I could say nicer things.
Murphy claims that he's not staking out a position but simply providing a wealth of viewpoint and accurate information from which people can make up their own minds.  Fair enough, in theory.  In fact, if he really did that, and did it well, it would be a valuable book.  I've taught a couple of classes on the death penalty to undergraduates.  I searched for a book that would really offer a wealth of accurate information without also staking out a position on the merits of capital punishment.  Frankly, I couldn't find one.  There's always a point of view, even when the information is mostly accurate.
But Murphy's book, despite its value (and it has some, which I'll get to in a moment) really doesn't do what he says.
Because there's remarkably little real information presented, and what there is is incoherent and hard to find.  The problem is that what ought to be sidebar is the book itself. 
I've testified before the Ohio legislature a bunch of times.  I've watched C-Span cover hearings in Congress.  I know from experience and observation that oral testimony (and too often written testimony) is mostly just blather.  Anyone can testify.  Frequently, anyone does.  Self-declared experts have the same seeming credibility as actual experts.  (Think Jenny McCarthy and her patently uninformed, misleading, inaccurate, and frankly dangerous - albeit presented with certainty and seeming knowledge - testimony about how there's a causal relationship between vaccines and autism.) There's no meaningful citation of sources.  Just opinion.
And so we hear from people who declare the death penalty a deterrent because you just know it is and from those who say it's not because the people on death row weren't actually deterred.  There are references to studies and people who say why they're flawed.  But what's the actual evidence for and against deterrence?  Are there any well done studies?  And are there more effective tools of deterrence?  Sorry, we can't tell.  Maybe written testimony provided some of that information.  But it didn't make it into the transcripts Murhpy gives us.
Section by section, subject by subject, it's the same problem.  People talk.  We hear from folks who were convicted of crimes they didn't commit.  A couple of those are folks who were sentenced to die and then exonerated.  I've heard a lot of those people speak.  I've spent time with a few, gotten to know them.  Their voices are deeply moving.  Their stories are compelling.  They sway people.
Why?  Because they put a human face on the problem of the convicted innocent.
But (and there's always "but") the problem isn't the human face.  It isn't the anecdote.  The problem is that innocent people get convicted.  The human face may move people, but if the point is as the back cover claims, 
to educate a national and international citizenry about capital punishment,
then the stories really don't belong.  What matters?  How is it that innocent people get convicted?  Why is it that the problem can't be alleviated?  In fact, that's in the book.  It's not just that we're fallible.  It's the nature of death penalty cases.  Scott Turow explains.
Capital punishment, no matter how well-intended or comprehensive the legislative reforms is doomed by . . . an inherent propensity to convict the innocent . . . .  Capital punishment, properly applied, presents an extraordinary paradox.  If the sentence is confined, as the U.S. Supreme Court has required, to only the gravest offenses, to the so-called 'worst of the worst,' that very proper restraint ends up exaggerating the potential of convicting the innocent.  That is because the worst of the worst are the cases that most seriously challenge our ability to reason; they are the cases that fill us with loathing, anxiety and outrage, emotions that often lead police, prosecutors, judges, juries (and even, sometimes, defense lawyers) to embrace false leads to make up for the lapse that let a savage killer loose in our midsts, to rush to judgment in order to calm a fearful public, and to reverse the burden of proof against defendants, who, far to often, are convicted by juries that don't want to take the risk of letting suspected monsters go.  Simply put, it is easier to arrest, prosecute and convict an innocent person of a horrible murder than of shoplifting.  Unless we recognize this propensity in the justice system and abandon capital punishment, we are bound now and then to condemn and execute the innocent, which is certainly the most profound abnegation of the law imaginable.
There's much like that in the book.  Powerful, reasoned, compelling arguments.  But too much isn't.
And too much is lost by the nature of the almost-vanity publishing.
The book desperately needs an editor both to sort out what goes where and to make serious suggestions about what to cut.  Vandeplas explains on its website that they don't edit.
They don't proofread/copy edit either.  Or fact check.    And they don't insist on a typeface that's easy to read or on an index or on the thousands of things that.
As I said, there's good stuff buried here, lots of it.  But it's badly organized, inadequately edited, and badly packaged.  And lost amidst the dross.  Frankly, Murphy himself should have written more and more lucidly to provide data and context.
So it's great to hear what many of these folks have to say.  But it doesn't add up.  Not to what Murphy intends.  And not to enough of value.
All that said, there's one thing.  Murphy says that his point is to put out the arguments for and against in a wholly unbiased way.  And he never tells us his own position (I'd guess he's a mild retentionist, but I wouldn't bet on being right.)  But the testimony (and remember, that's the only source he bothers with) is very heavily abolitionist.
Even his most passionate and forceful (and frequently quoted) advocate for death, Professor Rober Blecker of NYU Law School, seems to think we sentence far too many people to death on far too little evidence and who are far too undeserving of the death penalty.  
Which really does say something worth hearing.

*The New York Court of Appeals is the Supreme Court for New York where the Supreme Court is the trial court and the court of appeals is just a division of the supreme court which is, of course, less supreme than the Court of Appeals.
** The Texas Court of Criminal appeals is supreme in matters criminal as opposed to the Texas Supreme Court which is generally supreme over all Texas Courts including, in some rare situations, the Texas Court of Criminal Appeals.
***The Supreme Court of Ohio is just Supreme except when it throws its collective hands up in disgust at the state legislature and tells them that they have previously declared twice that Ohio's school funding system is unconstitutional and must be changed, but since the legislature refused to change it enough, well, they promised to do better and who are we to keep insisting?

1 comment:

  1. Not quite right on NY courts. The Court of Appeals is the "highest". The Supreme Court is the trial court of general jurisdiction, like the court of common pleas in most states. The intermediate appellate court is the Appellate Division which is, as you say, a division of the State Supreme Court - the common pleas court.

    Supreme Court Justices are appointed to the Appellate Division by the governor, but they have to be elected Supreme Court Justices first. Court of Appeals Judges used to be elected, but now they are appointed by the governor. They don't have to be elected at all.

    Supreme Court Justices are just elected. No gubernatorial appointment required.

    It's a mess. But New Yorkers seem to like it.