Disingenuousness and the Death Penalty

One day I was standing up in the Ohio Supreme Court arguing a death penalty appeal when now-retired Justice Andy Douglas said something like,

Of course, you think that the death penalty is always wrong, don't you?

His point was that perhaps they shouldn't take me seriously when I said that the death penalty in this particular case (whichever it was) shouldn't have been imposed.  I acknowledged the general point (which had also been made in the briefs, and went on to explain why even if you're going to have a death penalty, and Ohio clearly had one, this particular guy shouldn't be executed.

I am an abolitionist.  I don't hide that behind a curtain. I don't think we should be in the killing business.  Period.

It's ugly, this killing people because by God they deserve it.  And I've suggested repeatedly that if we're going to do it, perhaps we ought to own up to it.  Back in September 2009, making a point I've made at other times and in other settings, I wrote this.

Either we give up state murder, acknowledge once and for all that the death penalty, no matter how cosmetically attractive we try to make it is just another killing, unnecessary, unfair, uncertain. Or we embrace the horror, admit that we torture people to death at least some of the time and acknowledge that we're just fine with it.

We can rent out Yankee Stadium (it's new and shiny) and line the bodies up. We can set lions on them. Or have them gnawed to death by rats. Pay per view. It's better than pro wrestling.

I've reprinted those paragraphs twice (now thrice) since then. 

I keep coming back to it not merely because of the grotesquerie but also because it's making a serious point.

We want to kill, but we want to pretend we don't really want that. So we dampen the cries from the openly vengeful, you know, the ones who say,

That's too peaceful.  He should die the way he made ____________ die.  He should suffer like she/he/they did.

And instead we say,

Oh, no.  He should die, but it should be humanely, peacefully, quietly, prettily.  We must kill, but it must be a nice killing.

Which, when you get right down to it, is dishonest and stupid.  And yet, do I really think we should bring back the guillotine?  Or the crucifix?  Or the myriad other truly horrific ways we have, under color of law, done each other in?

I was speaking with a man who was about to become a new client.  He was going, in a few minutes, to be sentenced to die, and I was about to be appointed to represent him on appeal. 

Is it going to be the chair, he wanted to know, or can I get lethal injection?

His concern was real.  He didn't want to be killed at all, but if it was going to happen, he didn't want it to be horrifically painful.  Hard to blame him.

One of my, er, loyal readers wrote me the other day asking what I thought of the latest screed by Bill Otis over at Crime and Consequences, "The Shake-and-Jive on Lethal Injection."

Otis, of course, is a committed supporter of state murder (a term he, understandably, doesn't use).  And he's been offering variations on this same argument for years.  Calls for a moratorium on executions, advocacy of LWOP as a sentencing option/alternative, challenges to execution technology and methodology are, he says, all stalking horses for abolition.

We abolitionists, he says, don't give a rat's ass about making the death penalty work better or keeping bad guys confined for life or making executions more humane.  All we want is to stop them.  The rest is just a cover because we can't sell abolition.

Put aside, for a moment, the question of whether we actually can sell abolition.  (Abolition in New Jersey, New Mexico, Illinois, and New York all seem to indicate that Otis is wrong about that claim, though he's right that even where we don't have a death penalty there is substantial polling data support for one.)

His broader claim isn't entirely false.  Oh, there are advocates of a moratorium who really do want to pause while we ensure that the system works as it should - getting 100% accuracy at killing only those who deserve it and not those who don't.  And there are folks who think LWOP is a really wonderful sentence on its merits, not merely as an alternative to killing.  And some people are fine with the state killing folks, but really want the deaths to be peaceful and painless.

But then there are those who'll throw any monkey wrench they can into the machinery.  Just stop the killing.  Now

And, generally speaking, it's that last group, the abolitionists, who are leading the charge.

So Otis isn't altogether wrong.

But he's far from right.

I may hope, and even expect, that a moratorium will turn into abolition because if you're going to stop the killing while you make the system work perfectly you'll likely learn along the way that the system cannot be made to work perfectly (or even particularly well).  But I'll be happy with a moratorium even if the result is just to make some small efforts toward insuring that we make fewer mistakes.  Every time we don't murder someone, that's a win.  Every mistake we don't make is a good thing.

Same with LWOP.  It's a horrific punishment.  Death in prison, I've called it on more than one occasion.  More than one person on the row has made clear a preference for execution.  But it's not killing by the state.  For an abolitionist, that's no small thing.  Is it perfect?  No.  Rules can change; laws can change; what today seem to be facts can, if not exactly change, turn out not to be facts.  And of course, people can change.  But if state murder is wrong, and if it can't be undone, then yes, LWOP.  As an alternative, it saves some lives.  As a replacement for killing it saves more.

And then there's lethal injection.  And the whole thing about being gnawed by rats.

The Eighth Amendment, whether Otis likes it or not, prohibits "cruel and unusual punishments."  That probably makes the rats in Yankee Stadium thing unconstitutional.  But it also, and more broadly, means that execution technology and methodology matter.  And it reflects something about what we as a society, if not every individual or even every bunch of us, happens to believe.  And you can certainly argue about what is cruel and unusual and what the framers might have meant or how we should apply that prohibition today, but it's there.  And if I can use it to save some lives, I will.  And if I can use it to reduce the chances that those we do kill die in horrific and horrifically painful ways, I'll do that, too.  Without qualm or reservation.

If you're going to kill my client, by god don't torture him to death.  And if there's a way to reduce the likelihood of torture, take it.

There's no lie here, no trick.

A Lucas County Prosecutor who tries many of the death penalty cases in Toledo also sometimes teaches a class on the death penalty at the local law school.  He's invited me in, a couple of times, to offer another perspective on how the system actually operates.  One time, I stood up after he introduced me and began this way.

See, here's the thing.  He's trying to get my clients killed, and I want to save their lives.

The students laughed and gasped at the same time.  Many of them looked at their professor/prosecutor who nodded and said,

He's right.

The states that kill, like Bill Otis, think it's really important.  And if it's important enough, then there's no real reason to observe the niceties.  After all, the only truly botched executions in the last 100 years or so have been Willie Francis and Rommell Broom.  You know, the guys who didn't die.

And so the states are willing if not eager to use untested drugs, to adopt procedures without safeguards, even to smuggle drugs into the country.  I mean, it's all in the service of a greater good.  The ends, killing the clients, justify the means.

Except that I was taught they don't.

Then again, I don't pretend I'm not an abolitionist.

It's similar to what I told Andy Douglas, I oppose the death penalty in all cases.  But if you're going to have one, you should do it right.  And be open about it.

The real dishonesty is in the pretense that we have a system that doesn't even deserve a second look.