Death for Sure. Ooops, Make That Life

Jared Lee Loughner took the deal and will spend the rest of his life in prison.

Wade Michael Page was shot to death by police.

Casey Anthony was found not guilty.

And Mumia's off the row.

There's still a chance for James Holmes, but it's far from a sure thing.

What's a death penalty supporter to do?

Oh, sure.  Texas killed Marvin Wilson tonight despite overwhelming evidence that by any measure endorsed by medicine or social science he has mental retardation and ineligible for execution under the 8th Amendment.* He's the 25th person executed this year, but at this pace we won't even get to 50.  As recently as 1999, we killed 98.

In fact, for all the bluster and all the bloodshed (we've executed 1302 men and women in this modern era of the death penalty in the US), we kill very few.  California has more than 700 people on death row.  It's executed 13.  Even in Texas where they've killed 484 now and where executions are almost commonplace, the reality is that few killers are sentenced to die and many who are don't actually die at the hands of the state.

In 1972, Supreme Court Justice Potter Stewart said that executions in this country were essentially random.  

[D]eath sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.

It was true then, when murder wasn't the only capital crime, juveniles weren't categorically excluded from execution, and death row in this country was about one-fifth the size it is today.  It's just as true now. 

In 1972, the Supreme Court declared all the death penalty laws in the country unconstitutional.  In response, states rushed to enact new laws they hoped would comply.  The Court hasn't invalidated a state's death penalty law since 1978, but 5 states have abolished their own laws in recent years.

Erika Christakis, at Time. com, says that focusing on cases like Wilson's where there's a particularly powerful argument against execution misses the point.

Yet, the focus on extreme cases like Wilson’s — and whether he is legally and somehow “legitimately” executable despite his mental incapacity — prevents us from facing a larger truth that all state-sanctioned executions are a shameful relic of a bygone era along with the burning of witches and the use of child labor in mines.

Which is true.  But extreme cases, as the short list I proffered at the beginning of this post should make clear, are also cases where the case for death seems especially urgent.  (The cases that Jonah Goldberg falsely claims people like me won't talk about.)  And it's true of those cases, too.  The details are a distraction.

The cult of celebrity death penalty cases (none more than Mumia's) is a distraction because it allows us to get sidetracked.

Many years ago a prosecutor and I were debating the death penalty at the University of Toledo School of Law.  One of the students asked whether I'd be in favor of executing Hitler.

Hitler, Pol Pot, Stalin, Idi Amin, Bashar al-Assad, it's easy to toss out the names of those who oversaw the deaths of thousands if not millions.

Why not them?

Just as it's easy to toss out the iffy cases (Cameron Todd Willingham, say, or Troy Davis).

Why those guys?

Put aside the question of how we can tell who belongs in which camp.  Forget the broader moral issues.  Don't talk about slippery slopes or lowest common denominators.  And god knows these aren't questions about the wisdom of this or that public policy and of budgetary considerations in an age of reduced government resources.

Dump all that shit.

Instead, ask this question.

Who do we trust?

Who gets to make the call?

Nancy Grace?  She recently said that if she bumped into Casey Anthony she'd do something illegal because she's quite convinced Anthony is guilty and (although she didn't exactly say this part) must be punished and since the government won't, she would.

An opinion poll?

A jury?

A governor?

Obama thinks it's fine that he gets to decide which American citizens we can kill with drones.  After all, he's careful.  And maybe he is.

But it was John Roberts, no fan of my clients, who wrote this a couple of years ago in United States v. Stevens (citations silently excised).

Not to worry, the Government says: The Executive Branch construes §48 to reach only “extreme” cruelty, and it “neither has brought nor will bring a prosecution for anything less,” The Government hits this theme hard, invoking its prosecutorial discretion several times. But the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.

What's true of the First Amendment is true of the others, too.  And it's certainly true of policy.

Ronald Reagan used to say that the most frightening words in the language were

I'm from the government and I'm here to help you.

Not because of bad intentions.  Not even because the government wouldn't sometimes actually help.  But because it couldn't be trusted.

I'm not Reagan, not a Reaganite.  I believe in government.  But I don't trust it.  Nor do I trust the wisdom of the mob.  Even the mob that's trying hard to not be a mob but to get it right.

With blips here and there, the reality is that death sentences are down.  Executions are down. There are any number of reasons.  One is that I'm not the only one who knows better than to trust the government or the mob.

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*Kent Scheidegger disagrees.  It's only whores and charlatans and defense attorneys (pretty much the same group according to Kent) and deeply naive abolitionists who believe Wilson to have mental retardation.