Why, Exactly, Should We Kill Johnnie Baston?

Chong Mah, an immigrant from South Korea, owned and operated Continental Wigs-n-Things in downtown Toledo.  On March 21, 1994, the store was robbed and he was shot and killed.  Johnnie Baston is on death row for that killing.  Ohio intends to murder Baston on March 10.

Baston said then, and according to press reports says now, that he didn't do it.  He was there, but he wasn't the shooter.  Maybe.  I don't pretend to know and, in any case, it's not what interests me now.

(I represented Baston on direct appeal of his conviction and death sentence.  There are, in fact, a number of truly things about the case that infuriate me.  Those things have nothing to do with whether he in fact shot Chong Mah, nor are they relevant to what this post will be about if I ever get done with the digression and get to the point.  OK, I'll go there now.)

Chong Mah was, by all accounts, a decent, honest, hard working, truly wonderful man.  Perhaps that's why it's so damn poignant that we're getting all geared up to kill Baston.  See, the Mah family never wanted Baston to be killed.  They told the prosecutors at the time of the trial.  Now they're telling the Parole Board and, through the Board, Governor Kasich. 

Jim Provance, has the story in Today's Toledo Blade.

The family of Johnnie Baston's victim doesn't want him executed, so neither should the state of Ohio, Baston's attorneys will argue Thursday in hopes of convincing Gov. John Kasich to show him mercy.

That's to the point.  Even more is an affidavit from Peter Mah, son of the murdered man.

I was opposed to Mr. Baston receiving a death sentence at the time of his trial. . . . My family and I are opposed to Mr. Baston being executed.

As I said, the prosecutors knew. 

Two attorneys working as assistant Lucas County prosecutors at the time of the trial filed affidavits noting that the family told them that they would prefer to see Baston spend the rest of his life behind bars without the possibility of parole. That sentencing option wasn't available to the three-judge panel that presided over his trial.

It's true.  Ohio didn't have LWOP in 1994, though it does now.  More to the point, Kasich can commute the death sentence to LWOP.  Ah, but he shouldn't says the elected prosecutor, Julie Bates (joined by Ohio's new Attorney General, Mike DeWine.

A response to the clemency petition filed this week by Lucas County Prosecutor Julia Bates and Attorney General Mike DeWine's office said Mr. Baston continued to refuse to accept responsibility for Mr. Mah's murder during his interview with the board last week.



"In short, nothing has changed," it reads. "Mr. Mah's family maintains an opposition to a death sentence, and Baston continues to refuse to accept responsibility or express remorse. These factors were known to the three-judge panel who sentenced Baston to death more than 15 years ago and do not present viable grounds for a recommendation for clemency today."

I'm about to explain that among the numerous reasons we shouldn't kill Johnnie Baston is the only one I'm talking about here:  Chong Mah's family doesn't want now, and didn't want then, to have him killed.  And that here, in this context, that trumps everything else.  And I need to be very clear because I'm setting myself up for an accusation of hypocrisy and intellectual dishonesty.

See, I've said repeatedly that the victims of criminal acts (or the surviving friends/family/loved ones of those victims) have no proper role in the criminal justice system except sometimes as fact witness.  Crimes are violations of the social order, acts against the state which is, properly, the only victim.  Personal loss is properly (albeit often unsatisfactorally) addressed in civil law, through tort actions.  I'm particularly incensed by the prosecutors who see themselves as agents of those victims, who believe their job is to act on their behalf and to use the criminal law to exact vengeance in their names.

And yet, I'm saying that the family's views should count here.  A lot.

There's a couple of points. 

First, we're not talking about trial now.  We're talking about pure mercy, which is what the Gov can offer.  That's not properly part of the criminal justice system any more than are journalists whose independent reporting turns up compelling evidence of innocence.  The proper question for the Gov isn't whether the courts got it right (though that's not irrelevant since the Gov can, of course, fix judicial mistakes, too).  The question for the Gov is whether this or that person, Johnnie Baston in this case, should receive mercy.  

Not whether he deserves it.  Whether he should receive it.  Historically, the answer to that question was mostly yes.  In recent years, it's mostly been no.  That's not a difference in the condemned.  If mercy isn't about what's deserved, it doesn't matter much who they are.  It's a difference in politics.  Clemency has become a proxy for tough-on-crime.  Commute death sentences when you're not pretty sure the guy is innocent, and you're a wimp.  (There's some evidence that's changing, but it's far from clear, and any change is very slow.)

Anyhow, if you're a governor trying to figure out whether to exercise the extraordinary power of clemency it seems reasonable to consider the seemingly unusual voice saying "Yes."

Second, and really more important, is the nature of the death penalty.  

Robert Morganthau, long time District Attorney of New York County (that's Manhattan), put it plainly.

The only honest justification for the death penalty is vengeance.

But vengeance for whom?  Not for me?  Not meaningfully for the state.

Here's what it comes down to.  When the prosecutor says, this person should be killed because he killed someone, that's not a legal determination.  It's a moral one.  It's a claim that vengeance is appropriate in this case.  And surely the active, "please don't" from the survivors of the murdered person is a relevant consideration.  Why?  Because it undercuts the purported moral justification and dishonors the person killed.

Don't kill for me has special resonance when it's not some bunch of abolitionists making a generic statement but the family of the murdered person.

All of which gets to the title I gave this post.

Why, exactly, should we kill Johnnie Baston?

To teach him a lesson?  Nah.  If there's a lesson for him and he hasn't learned it by now, he won't have mastered it by March, though another few decades in prison might get it through to him.

To teach others? Nah.  The reality is that the people who are prone to commit murder either act on the spur of the moment, without any thought of consequence, or are quite sure they'll never get caught.  I suppose some few people here or there are deterred by the theoretical possibility of execution, just as some few commit murder in order to be executed, so that the state will help them commit suicide.  If we're out to prevent killing, there are far more efficient and effective things we could do with the resources we've been wasting on seeing Baston killed.

No, the reason we want to kill Johnnie Baston is to take revenge on him for what he was convicted of doing to Chong Mah.  But if Mah wouldn't want it, and if his family wouldn't want it, then what we're doing is no more than satisfying our own blood lust.

That's the real reason, of course.  It makes us (not me, and maybe not you, but the generic "us" that is the people of Ohio who are paying attention and maybe do or don't feel that way) feel good to kill.  We like the blood.  We feel righteous about it.  We pretend otherwise, of course.  Maybe we (that's the collective "we" again) don't really feel that way.  But the politicians think we do.  They think we want them to kill.  And they want to be re-elected.

So it's kill and kill and kill.

Tit for tat.

Someone once told me that two wrongs don't make a right.

Why should we kill Johnnie Baston?

No reason on earth.

Or in the heavens.