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...

(APPLAUSE)

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...

(APPLAUSE)

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
expediency.
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.

Prarie State Abolition!

Today I have signed Senate Bill 3539, which abolishes the death penalty in Illinois.

For me, this was a difficult decision, quite literally the choice between life and death. This was not a decision to be made lightly, or a decision that I came to without deep personal reflection.

Since the General Assembly passed this bill, I have met or heard from a wide variety of people on both sides of the issue. I have talked with prosecutors, judges, elected officials, religious leaders from around the world, families of murder victims, people on death row who were exonerated and ordinary citizens who have taken the time to share their thoughts with me. Their experiences, words and opinions have made a tremendous impact on my thinking, and I thank everyone who reached out on this matter.

After their guidance, as well as much thought and reflection, I have concluded that our system of imposing the death penalty is inherently flawed. The evidence presented to me by former prosecutors and judges with decades of experience in the criminal justice system has convinced me that it is impossible to devise a system that is consistent, that is free of discrimination on the basis of race, geography or economic circumstance, and that always gets it right.

That's the Honorable (and I mean sincerely) Pat Quinn, Governor of Illinois, explaining how he came to sign the legislation abolishing the death penalty in Illinois. (Here's the complete press release.)

Actually he did more.  The bill he signed wiped out the death penalty prospectively.  What of the 15 men on death row?  He commuted their sentences.

This is, of course, the second time that an Illinois governor has emptied death row.  George Ryan did it about 11 years ago.  First, his moratorium stopped the killing.  Then he commuted the sentences of  almost 170 men and women (granting full pardons to 4 of them).  But while the moratorium stayed in place, the row repopulated.

And there are, maybe, ripples.

Serious hearings on abolition are going on in Connecticut right now, where the legislature voted abolition a couple of years ago but the governor vetoed.  This governor will sign if a bill gets to him.

In Montana, the state Senate just voted an abolition bill.  It's now up to the house and the governor.

All of which leads to an important point.  

New Mexico has 2 people on death row.  (Governor Richardson did not empty the row when he signed that state's abolition bill.)  It had executed only 1.  New Jersey had only 10 people on its death row and hadn't killed anyone for decades.  Connecticut has 11 on the row, and the only person it killed was an assisted suicide.  Montana has 2 on the row and has killed 3.

But Illinois has been a major death penalty state.  Executed 12 before the moratorium.  Placed significant numbers on the row, 15 since Ryan emptied it.  Abolition there is bigger because the death penalty is bigger.  

Meanwhile, though, there's Ohio.

Johnnie Baston is to be murdered tomorrow morning.  They've fiddled the protocol a bit this week, but that won't stop the killing.  

It will be number 43 for the Buckeyes.

The second this year.  

Eight more scheduled before the year is out.  

Two already lined up for 2012.

Governor Quinn, again.

Since our experience has shown that there is no way to design a perfect death penalty system, free from the numerous flaws that can lead to wrongful convictions or discriminatory treatment, I have concluded that the proper course of action is to abolish it. With our broken system, we cannot ensure justice is achieved in every case. For the same reason, I have also decided to commute the sentences of those currently on death row to natural life imprisonment, without the possibility of parole or release.

I have found no credible evidence that the death penalty has a deterrent effect on the crime of murder and that the enormous sums expended by the state in maintaining a death penalty system would be better spent on preventing crime and assisting victims’ families in overcoming their pain and grief.

. . .

As Governor, I took an oath to uphold our state’s Constitution and faithfully execute our laws. Honoring that oath often requires making difficult decisions, but I have found none to be as difficult as the one I made today. I recognize that some may strongly disagree with this decision, but I firmly believe that we are taking an important step forward in our history as Illinois joins the 15 other states and many nations of the world that have abolished the death penalty.

Good for him.

Ultimately, good for all of us.

Keystones and Buckeyes and the Prairie State

Let's look at some numbers.

• 37 - US jurisdictions with the death penalty (35 states, federal government, military)
• 15 - States without the death penalty (add DC and Puerto Rico for 17 jurisdictions, subtract 1/2 for New Mexico which abolished the death penalty prospectively but left 2 men on the row)
• 1237 - Executions in the US since 1976 when the Supreme Court said some death penalty laws were constitutional
• 46 - Number of executions in the US in 2010
• 3 - Number so far in 2011
• 3261 - Number of men and women on death row across the country as of January 1, 2011
• 2 - Number of states that have repealed the death penalty legislatively in recent decades (New Jersey & New Mexico)
• 1 - Number of states where the death penalty can be repealed immediately if the governor will sign the bill (Illinois)
• 50 - Number of states in which, if they have the death penalty, there are efforts to abolish it or at least reduce it's use and in which, if they don't have the death penalty, there are efforts to establish it.  Not all the efforts (in either direction) have any near term chance of success, and some are far more serious than others, but there's not a state that doesn't have somebody working on changing its status.

The main focus of attention on these issues right now is Illinois, of course, where abolition sits on Governor Quinn's desk.  He can sign it or not.  There are organized (and disorganized) efforts from abolitionists and retentionists.  He ain't talking.

But elsewhere there are some interesting things.  New Jersey has at least three bills offered that would reinstate the death penalty.  If one should make it through the legislature, which seems unlikely but a recent cop killing might give some legs, the Governor would probably sign in a heartbeat.

The new Governor of New Mexico would sign a reinstatement bill, too, but the legislature hasn't changed and there's nothing new in the landscape there.

Maryland's Senate President is trying to figure out how to jumpstart killing in that state which has been held up administratively.

And then there's Pennsylvania where Governor Rendell, on his way out of office, signed 6 execution warrants.  The 6 are no surprise.  Rendell's been more than willing over his 8 years as Governor.  He signed, in fact, a total of 119 execution warrants.  The thing is, he hasn't gotten to oversee even a single killing.  Not one.  The frustration is palpable.  So along with signing off on the effort to try and get 6 guys killed, he wrote a letter to the members of the legislature.

As a former district attorney and death-penalty supporter, I believe the death penalty can be a deterrent - but only when it is carried out relatively expeditiously.

But Pennsylvania doesn't do that.

However, a 15-, 20-, or 25-year lapse between imposition of a death sentence and the actual execution is no deterrent.

It's time, he says, to rethink the whole thing.  Either speed it up, or abolish it and provide for an absolute sentence of death in prison. 

Rendell Death Penalty Letter

There's a refreshing realism to Rendell's point.  If you have a killing system that doesn't work, why pretend.  Either make it work, or do away with it.

Which brings us (or at least it's the stop before I take this post) to Ohio and Supreme Court Justice Paul Pfeifer.  Pfeifer's an interesting guy in this context.  He was head of the Senate Judiciary Committee in 1981 when the committee debated and Ohio adopted its current death penalty law.  He helped write it.  He's known, or at least regularly referred to in the press, as "the father of Ohio's death penalty."  Since 1992, he's been a justice on the Ohio Supreme Court, reviewing every death sentence in the state.  And he's consistently been the justice most likely to vote to reverse death sentences.  The law, he's said repeatedly, was designed to be narrow in focus and used only in extreme cases.  To his dismay, it's been applied way more broadly than he ever intended.

None of this is new.  Back in May, Pfeifer called for a blue-ribbon commission to examine every death sentence in the state to see which, if any, would be a death case by today's standards.  (I wrote about that plan here and here.)  He emphasized at the time that he was not opposed to the death penalty.  He just thought it wasn't being used as it should.

Well, maybe that's changing.  AP reporter Andrew Welsh-Huggins says Pfeifer is calling for abolition.

An Ohio Supreme Court justice who helped write the state’s death penalty law three decades ago and has more recently questioned its interpretation called Tuesday for an end to capital punishment in the state.

Justice Paul Pfeifer also said Gov. John Kasich and any future governor should consider commuting the sentences of Ohio’s death row inmates to life without parole.

“These are important matters that need all of our thoughtful attention — need the attention of the Legislature to consider seriously whether we’re well-served by this statute any longer,” he said in remarks following his swearing-in ceremony.

“The time has come for us to make that change,” Pfeifer said

Pfeifer's is a powerful voice and I'm glad that he's finally come to admit that the experiment he launched 30 years ago should be stopped.  But as with Justices Brennan and Marshall, and later Justice Blackmun, and then Justice Stevens, he's but a voice.  Not enough.  Our new Governor, John Kasich, supports the death penalty.   Our old Governor Ted, who as best I can figure out might as well have flipped coins, could have come close to emptying death row as he left office.  He commuted a bunch of sentences but didn't touch any of the folks on the row.

Frank Spisak is due to be murdered on February 17.  Johnny Baston is to be killed March 10.  There's every reason to think those dates will hold.  The Ohio Supreme Court has requests for more dates.  Whatever Justice Pfeifer thinks, it's likely his court will schedule killings, one every 3-4 weeks, for the rest of the year.  And the year after.  And the year after that.

Ohio's death row is shrinking from both ends.  We're killing more of the ones who are on the row.  But we're also putting fewer there.  According to another version of the AP story, Pfeifer sees a lesson in that.

He says the recent decrease in death sentences is a sign society believes life sentences are punishment enough.

Ed Rendell and Paul Pfeifer.  They have little in common that I can see.  But they've both concluded, in different ways and for different reasons, that their state's death penalty system isn't working the way they'd hoped.

Rendell still holds out some hope that Pennsylvania's can do what he thinks it should.  He's wrong about that, but right about the alternative.  If it can't be fixed, shut it down.

Pfeifer knows Ohio's system can't do what he once hoped and thought it could.  Since it can't be fixed, shut it down.

Two more voices in the wilderness.

Governor Quinn?  You listening?