Friday, September 9, 2011

One More Time

As Georgia gets set to murder the quite possibly innocent Troy Davis on September 21, the Board of Pardons and Paroles announced that it will hold a second clemency hearing for him on September 19. 
In Texas, where they murdered the pretty clearly innocent Cameron Todd Willingham, the Forensic Science Commission is trying to decide whether it can continue it's investigation of that case given a ruling by the state's Attorney General limiting its jurisdiction.
And then, of course, there was the Texas Gunslinger at the debate.  The Times provided a transcript of the whole debate, but here's a video clip of the relevant part.
And here's the transcript excerpt of it.
WILLIAMS: Governor Perry, a question about Texas. Your state has executed 234 death row inmates, more than any other governor in modern times. Have you...
Have you struggled to sleep at night with the idea that any one of those might have been innocent?
PERRY: No, sir. I've never struggled with that at all. The state of Texas has a very thoughtful, a very clear process in place of which -- when someone commits the most heinous of crimes against our citizens, they get a fair hearing, they go through an appellate process, they go up to the Supreme Court of the United States, if that's required.
But in the state of Texas, if you come into our state and you kill one of our children, you kill a police officer, you're involved with another crime and you kill one of our citizens, you will face the ultimate justice in the state of Texas, and that is, you will be executed.
WILLIAMS: What do you make of...
What do you make of that dynamic that just happened here, the mention of the execution of 234 people drew applause?
PERRY: I think Americans understand justice. I think Americans are clearly, in the vast majority of -- of cases, supportive of capital punishment. When you have committed heinous crimes against our citizens -- and it's a state-by-state issue, but in the state of Texas, our citizens have made that decision, and they made it clear, and they don't want you to commit those crimes against our citizens. And if you do, you will face the ultimate justice.
There's been a lot of talk about that cheering at Perry's having overseen 234 murders.  Given the audience, I wasn't surprised.  Nor was I surprised that Brian Williams didn't ask any hard question - or ask the others if they shared Perry's view that no execution is unworthy.  These so-called debates (really, sequential position statements) are far more about talking points and preaching to the choir than about delving into substantive issues
Anyway, no surprises to speak of.
But perhaps an unintended truth.
Remember the actual question:
Have you struggled to sleep at night with the idea that any one of those might have been innocent?
And the first part of the answer, the part before he explained that they were all tried and none of them had their death sentences vacated so it was a fine thing to kill them.
No, sir.  I've never struggled with that at all.
You know, and I know, that if pressed he'd say the answer was all of a piece and that he'd never struggled with having killed an innocent person because he was confident it had never happened.  But that isn't what he said at first.  (In fact, he never said that.)  Instead he said that he'd never struggled with it.
No, sir.  I've never struggled with that at all.
You may remember that the last president from Texas called himself "The Decider" and was proud of the fact that he didn't second guess his decisions.  Really, it's kind of a Texas macho thing.  And an I'm-not-an-introspective-guy thing.
But it's also, and here we get to the point, a thing about the lack of interest in the whole issue.
Let's put aside the fact that Perry pretty clearly signed off on the murder of at least one innocent guy who, if he'd been paying attention, he should have known was probably innocent (Willingham).  It's not that he did it.  It's that he doesn't care.  Which is essentially what he said.
Stalin, of course, was right.
A single death is a tragedy. A million deaths is just a statistic.
But Perry doesn't even care about the single guy.  Or maybe he does, just not as tragedy but as
Here's from Politico, via Grits.
Veterans of Sen. Kay Bailey Hutchison’s unsuccessful 2010 primary challenge to Perry recalled being stunned at the way attacks bounced off the governor in a strongly conservative state gripped by tea party fever. Multiple former Hutchison advisers recalled asking a focus group about the charge that Perry may have presided over the execution of an innocent man — Cameron Todd Willingham — and got this response from a primary voter: “It takes balls to execute an innocent man.”
There's nothing new, or even Republican or Texan, in using the death penalty to make political points.  Bill Clinton, after all, left the campaign trail in 1992 to oversee the execution of the brain-damaged Ricky Ray Rector.  But there's something unseemly in being so open about it.
When death penalty supporter and Republican Governor of Illinois George Ryan saw that Illinois had freed as innocent more men from death row than they had killed, he called a moratorium, then a study, and then he emptied death row.
There's something to be said for being willing to reconsider.  And for not playing politics with people's lives.
And it's well to bring Ryan up here.  His study commission was specifically designed to figure out how to make the death penalty in Illinois perfect.  Abolition/retention wasn't on the table.  The commission came up with eighty some proposals.
Here in Ohio, when Governor Ted was, seemingly, throwing darts and flipping coins to decide which death sentences to commute, he was asked to do as Ryan did and set up a commission to consider and evaluate.  Just see if it's as good as you think.  If it's not, suggest improvements.  He declined.
Governor Kasich hasn't indicated any willingness, either.  But another Republican has.  She's Maureen O'Connor and she's Chief Justice of the Supreme Court of Ohio.  Here's what she said yesterday, during her first State of the Judiciary Address.
Finally, there is work to be done on the death penalty.
If we are to support trust and confidence in the judicial system, there is arguably no issue more important than ensuring that justice is served when the state imposes the ultimate form of punishment.
That’s why I am announcing today that the Supreme Court of Ohio and the Ohio State Bar Association are forming a Joint Task Force to Review the Administration of Ohio’s Death Penalty.
The impetus for the formation of this Joint Task Force is a desire on the part of the Court and the Ohio State Bar to ensure that Ohio’s death penalty is administered in the most fair, efficient, and judicious manner possible.
Examination of the process by a broad-based task force of judges, prosecuting attorneys, criminal defense counsel, legislative leaders, and academics is appropriate to determine if the criteria, laws, and procedures regarding the imposition of the death penalty in Ohio are in need of attention. Is the system we have the best we can do? Convening persons with broad experience on this subject will produce a fair, impartial, and balanced analysis.
It should be made perfectly clear that the exercise to be undertaken is in no way a judgment on whether Ohio should or should not have the death penalty. This will not be in the charge to the Joint Task Force. The Task Force will examine the current laws on the subject, the practices in other jurisdictions, the data, costs, etc.  It will review the ABA death Penalty Report and identify areas in need of action and recommend the course of action.
We anticipate a Joint Task Force of approximately 20 members with diverse backgrounds in the criminal justice system, with expertise and experience in death penalty prosecution, defense, adjudication, and scholarship. The Joint Task Force will be chaired by Retired Judge James A. Brogan of the Second District Court of Appeals.
The proof is in the pudding, of course (and the devil in the details), but she's on to something.
Is the system we have the best we can do?
It's the right question.  OK, it's one of the right questions.  The other is whether to have the death penalty at all.  But if you're going to, then you want it to be as perfectly calibrated and done as possible.  You want to be sure that the system, from top to bottom, is as close to flawless, as fair, as transparent, as uninfected by bias, prejudice, money, passion, politics, whim, caprice, as humanly possible.
You want to be not just sure, and also right, when you determine that the person to be killed is factually and legally guilty.  You want to be sure, band also right, when you determine that the person to be killed is actually the worst of the worst and did the worst of the worst things.  You want to be absolutely certain that the trial was fair and the jury was fair and that any error, even minor error, is condemned and stopped, not swept under the rug.
If you're going to kill people, you want to get it right.  Close enough for government work isn't close enough.
Look, if you've spent any time at all reading this blog, you know that I'm unalterably and unconditionally opposed to the death penalty.  Always.  Every time.
But I don't live in a fantasy world.  Ohio isn't going to abolish the death penalty in the next couple of years.  We're killing people at a pretty rapid clip here (despite this 3 month blip).  And if we're going to keep killing 'em, we owe it to them - and especially to ourselves - to get it right.  Always.  Every time.
Not just close.  Not mostly.  Not, well, gee any mistakes were harmless.  Not, but his lawyer didn't object.  Not probably.  But right.
If we're going to kill, there should never be a mistake.
Is it the best we can do?
We're human, which means we can't make it perfect.  But we can sure do better than we do.  And if we're going to kill, we should.
So good for the Chief Justice.
Of course, when she sees what it takes to do it right, when the public sees what it takes to do it right, well - all those recommendations for so little reward.
But then abolition isn't on the table.  And that's OK.  Because if the commission does it's job right, abolition is what will follow.  Just ask the folks in Illinois.

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