Tuesday, June 25, 2013

Voices Not Ashamed of Mercy

Ronald Reagan, as I've noted before, was fond of saying that the scariest ten words in the language were "I'm from the government, and I'm here to help you."

He believed, in theory if not always in practice, that smaller was better, that the government should leave people alone, and that when the government got involved, there was a fair chance it would fuck things up.  You couldn't trust the government and you shouldn't.

In fact, that's the traditional conservative mantra.

So it's no surprise when Steve Monks, former chairman of the Republican Party in Durham, North Carolina poses this rhetorical question at Plain Talk Politics.
We all want a smaller, more efficient government that does not abuse its power, along with swift and sure justice. After all, isn’t this part of what conservatives stand for?

What's maybe a bit of a surprise, though, is what comes after that.
Well, our system of capital punishment is anything but swift, small, efficient and sure.

Let’s put an end to North Carolina’s seemingly endless death penalty debate by simply bringing our politics in line with our conservative principles – wasteful government programs that don’t work and go against our values should be ended.
Monks runs through the usual litany of pragmatic objections to the death penalty.  It's slow, expensive, risky, inefficient. 
We are increasingly re-thinking the death penalty because of its many problems, but also because of our respect for human life.
And there's how it punishes victims.
For the families of murder victims a death sentence almost always represents a false promise – 3,000 inmates on death rows and 43 were executed last year – while the murder victims’ families are sentenced to navigate the system for decades with no end in sight.
Monks is just another of the surprising voices being raised against the death penalty, though perhaps it's not so surprising.  I mean, there's a tendency simply to assume that folks on the left side of the political spectrum will oppose executions while those on the right will endorse them.

It's always been a faulty assumption, an oversimplification based on sloppiness with categories and vague generalizations.  Don't believe me?  Spend a few minutes nosing around the website of Conservatives Concerned about the Death Penalty.  Then come back and read what Bill Thiebaut has to say.
Thiebaut is a former district attorney in Pueblo, Colorado. He's also a rock-ribbed conservative who took to the pages of the Denver Post with an op ed supporting Governor Hickenlooper's decision to grant a reprieve to Nathan Dunlap.

It's not that Dunlap's likely innocent or that there's anything particularly sympathetic about him.  He's on death row for the murder of  people at a Chuck E. Cheese in Auroora back in 1993, and the families of those folks, at least some of them, reacted angrily to Hickenlooper's reprieve.  No, what moved Thiebaut to write is that the power of clemency is there for a reason.

The executive clemency power plays an equal role in the criminal justice process to that of the judge and jury. It allows the governor to consider a broad array of information, including evidence that was — for whatever reason — unavailable to the jury at the time of trial, and information about the individual's conduct in the years since his trial. It also allows the governor to take into account factors beyond the individual circumstances of a particular case, such as evidence of systemic problems or changing societal attitudes.
In this case, those things mattered.
Gov. Hickenlooper's reprieve order identified numerous flaws in Colorado's administration of the death penalty, including concerns of racial bias, geographic disparity, and disproportionality. He pointed out that Colorado presently lacks the means to carry out a legal execution, and would have to go to great lengths to procure those means. He expressed concern about the potential damage to state employees from participating in a state-sanctioned killing.

In subsequent interviews, Hickenlooper also has pointed out that Dunlap indisputably suffers from a serious mental illness, which the Colorado Department of Corrections treats with daily medication. This illness could readily have been diagnosed before Dunlap's trial, and three members of his jury have signed sworn statements saying that if they had known about it, they might not have voted for a death sentence.

Further, since the DOC finally started treating Dunlap's illness in 2006 — 10 years after his trial — he has stopped cycling through mania and psychosis and has been able to express his profound remorse for his crimes.

None of this information, about Dunlap or about Colorado's death penalty was available to the jury that sentenced him to die. It is, however, squarely within the governor's consideration under Article IV, Section 7 of the Colorado Constitution. By exercising his constitutional power, the governor has afforded all of us an opportunity to carefully reassess the fairness of the ultimate punishment.
Those are real and practical reasons.  They apply to Dunlap specifically.  But you know, there's something else.

Thiebaut quotes Anthony Kennedy explaining just what's wrong with the cramped view most of our Governors take today of their power to grant clemency. It was 2003, in a speech to the American Bar Association.  Kennedy said,
A people confident in its laws and institutions should not be ashamed of mercy.
Kennedy didn't add, as I do when I speak of mercy, that it's not about them, not about whether Nathan Dunlap deserves a break.  It's about us.  It's about whether we're the sort of folks who have the generosity of spirit to give him one.

Neither Thiebaut nor Monk says it, either.  They don't have to.  They're showing it.

h/t DPIC and Kathy G.

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