Sunday, September 23, 2012

Proposition 34 and the Potemkin Village

Back in April I wrote about Proposition 34.  (More precisely I was writing about how Proposition 34 leads to LWOP which is horrific but still better than the alternative.)
Prop 34, if you haven't paid attention, is the California ballot measure that, if it's passed on November 6, will eliminate the death penalty in The Golden State and replace it with LWOP.  From one form of Death in Prison to another.  Sigh.
Anyway, it's a major fight.  I'm not going to take up your time now rattling on about why the death penalty should be abolished and how it is that abolition in California would be a major step and a great thing and dammit even good for California.  You know what side I'm on.  Want more information? Trying to figure out how to volunteer to help the effort? Go here.
That's not what I want to talk about today.
I want to talk about honesty.
Which forces me to talk about New Hampshire on my way to talking about California.
See, a few years ago, The Granite State came really close to abolition.  Things were looking good, since really, who gave a damn.  After all, there was nobody on the row there, and New Hampshire hadn't actually executed anyone since 1939.*  In fact, the legislature passed abolition, but the governor vetoed it.
That's not actually the story I'm interested in.  The story is that one sheriff who spoke explained that the death penalty was really important, really really import, really really really.  Not so they could execute people of course.  They wouldn't want to do that, he didn't quite say, not in the state with the motto
Live Free or Die
(Well, maybe they would want to kill people in a state with that motto.  But I digress.)
No, the death penalty was important because otherwise people wouldn't just plead out to life in prison.  Which makes a certain kind of sense.  If the idea of a plea bargain is that you avoid something worse, then LWOP only works as a plea bargain if there's something worse to avoid.
And that brings us back to California, and to Debra J. Saunders column in the San Francisco Chronicle.
She's opposed to Prop 34.  Oh, she recognizes the structural problem.  
California's death penalty law is close to worthless as a killing machine.  They don't actually execute people in California, it mostly seems.  They just spend extra tens of millions trying capital cases, housing death row inmates, and pursuing years of endless litigation that's more likely to end with an inmate's death from natural causes than from a legally ordained killing.
So Mark Klaas likely won't have the satisfaction of knowing that Richard Allen Davis will be killed for the murder of Polly Klaas.
Klaas wants to see Davis executed, he told me later, because the man who killed his daughter should have no influence in this world. That, he emphasized, is "what's supposed to stop."
Likely won't happen.  Oh, Davis will die eventually. Everyone does.  But the odds are against it's happening at the instance of the state.
See, it's not about the killing.  There's no closure. Klaas doesn't expect the pain to go away or to miraculously heal should Davis ever be killed.  But the collateral consequence for Californians, that's something else..
He cited cases like that of John Gardner. After the convicted sex offender was arrested for the murder of 17-year-old Chelsea King in 2010, Gardner went for a deal. He admitted to killing King, and also to the 2009 murder and attempted rape of 14-year-old Amber Dubois. Gardner even led authorities to Amber's bones.
Parents Brent and Kelly King agreed to the plea bargain, because, they said in a statement covered by CBS News, "the Dubois family has been through unthinkable hell the past 14 months. We couldn't imagine the confession to Amber's murder never seeing the light of day, leaving an eternal question mark."
"You take the death penalty off the table," Klaas told The Chronicle, and communities will be held hostage to the fear and uncertainty that follow when a young person goes missing. "Crimes will not be solved. Victims will not be recovered."
And there's Jared Lee Loughner who might have been found insane rather than guilty of murder and locked away for the rest of his life after a trial rather than quickly pleading guilty and getting locked away for the rest of his life if California Arizona (How the hell would Prop 34 have changed that?) didn't have a death penalty.
See, it's not about actually killing people.  The important part of the death penalty is the threat.
Not because it deters murderers.But because it deters trials.
We need to keep the death penalty, Saunders says, because as an empty threat it has a practical value.  Like that New Hampshire sheriff wondered, why the hell would anyone voluntarily plead to LWOP if there wasn't the risk of something worse?
The overwhelming majority of cases never go to trial. 
That thing about getting your day in court? Telling it to the judge? 12 good men and true?
Only cranky old men and hundreds of years of an Anglo-American legal system ever believed in that shit.
It's uncertain.  It's time consuming.  And as Reagan's Attorney General Ed Meese once told US News and World Report,
If a person is innocent of a crime, then he is not a suspect.
So what's the problem?
Joe Deters is the prosecutor in Cincinnati, Ohio.  I suspect that he and I couldn't even agree about whether the Sun rises in the east or the west.  But he knows the problem.  He explained to Andrew Welsh-Huggins of the AP
To use the death penalty to force a plea bargain, I think it's unethical to do that.
If you think they deserve to be killed, Joe figures, then you get the jury to agree and the courts to agree and kill them.  If they don't deserve to be killed, then you don't take a chance.
Our criminal justice system, and certainly our capital punishment system, shouldn't be a game of chicken based on threats - empty or real.
When you get right down to it, Californians may just be the next group to say they're tired of even the idea of killing in their names.  It's bad policy.  It's bad economics.  And it's morally offensive.
And behind California's a capital punishment system, there's no reality.  It's a studio set, a Potemkin village.
To use the death penalty as a bargaining chip is to deny it even the pretense of moral force.  To keep the death penalty on the books because it's a useful bargaining chip is to deny even the pretense of moral force to the whole justice system.
And really, that pretense is about all they have out in California these days.

*Things have changed.  There's now one person on New Hampshire's death row.


  1. The 729 on death row murdered at least 1,279 people, with 230 children. 43 were police officers. 211 were raped, 319 were robbed, 66 were killed in execution style, and 47 were tortured. 11 murdered other inmates.

    The arguments in support of Pro. 34, the ballot measure to abolish the death penalty, are exaggerated at best and, in most cases, misleading and false.

    No “savings.” Alleged savings ignore increased life-time medical costs for aging inmates and require decreased security levels and housing 2-3 inmates per cell rather than one. Rather than spending 23 hours/day in their cell, inmates will be required to work. These changes will lead to increased violence for other inmates and guards and prove unworkable for these killers.

    No “accountability.” Max earnings for any inmate would amount to $383/year (assuming 100% of earnings went to victims), divided by number of qualifying victims. Hardly accounts for murdering a loved one.

    No “full enforcement” as 729 inmates do not receive penalty given them by jurors. Also, for the 34,000 inmates serving life sentences, there will be NO increased penalty for killing a guard or another inmate. They’re already serving a life sentence.

    Liberals are also trying to get rid of life sentences. (Human Rights Watch, Old Behind Bars, 2012.) This would lead to possible paroles for not only the 729 on death row, but the 34,000 others serving life sentences. Remember Charles Manson, Sirhan Sirhan, Darryl Thomas Kemp, Kenneth Allen McDuff, and Bennie Demps?

    Arguments of innocence bogus. Can’t identify one innocent person executed in CA. Can’t
    identify one person on CA’s death row who has exhausted his appeals and has a plausible claim of innocence. See

    1. "Can’t identify one innocent person executed in CA."

      Actually I can. Don Heller, one of the authors of California's death penalty law states emphatically that at least one of the 13 people killed by the state since 1978 was an innocent man.

      "Tommy Thompson was innocent of the rape-murder that he was convicted of and sentenced to death," Heller has said. Thompson's conviction relied almost exclusively on the testimony of an inmate named Fink, professional informant.

      Fink was so charismatic that several people confessed their crimes to him, ending up on Death Row. And how fortunate for him they did because every one of those confessions Fink heard, well lets just say he always benefited from them.

      "[Thompson] was executed under the law I wrote and that has stayed with me since 1998 that I participated in the execution of an innocent man." Heller has said.

      The federal district court ruled that Thompson was erroneously convicted of capital murder and the 9th Circuit Court of Appeals ultimately agreed. However, the court missed it's own deadline in releasing it's ruling. It was on this basis, the court missing its own deadline, that the U.S. Supreme Court sent Thompson back to death row

      In1998 Thomas Thompson became the only person ever executed as a result of acknowledged judicial malpractice.

      Who has been held accountable for the citizens of California's murder of Thompson? The state sanctioned killing of even one man is not worth any state continuing to fund a program less effective than the alternative with the bonus of costing taxpayers more in its failing.

      As a PRO-LIFE CONSERVATIVE, I can't support government wasting money on programs that quite simple does not work. How can you?