10 February 2010

State-Condoned Murder, or The Death Penalty is Another Reason I Should Have Gone to Law School

NPR's really hammering at legal injustices these days - clearly, someone at NPR wants me to feel guilty about my non-legal career decision(s).

The latest - and not as poignant or potent for me as the series on bail - is a Fresh Air interview with David Dow, who has the thankless, hideous job of defending Death Row inmates in Texas.

Texas puts more people to death than any other state, though Virginia and Florida come close (and Florida's death chambers are at the prison in - where else? - Stark, Florida. No symbolism there).  Amnesty International keeps a very good site with loads of death penalty statistics, both national and international. One of my favorites is that in 2008, 93% of all known executions took place in five countries - China, Iran, Saudi Arabia, Pakistan and the USA.

It's odd that one of the main legal arguments against the death penalty is that it is used so (relatively) sparingly.   There are lots of other arguments, including ones organized around race, quality of defense counsel (who are often public defenders - in other words, overworked and underpaid), cost of maintaining Death Row prisoners (largely in legal costs - the appeals process goes on and on and on and on....), the question of deterrence, and so on - all that before you ever reach the moral grounds for opposing the death penalty.

But the infrequency with which the death penalty is applied and carried out makes it - by definition - unusual. And the Eighth Amendment has that nifty prohibition on cruel and unusual punishments.

It's also rather appalling that the Supreme Court briefly held the death penalty unconstitutional (Furman v. Georgia, 1972), based, essentially, on the Eighth Amendment argument about unusual punishment.  It was reinstated in 1976, in Gregg v. Georgia. Those were the last days of high quality jurisprudence from the Supreme Court, in my not-all-that-expert opinion. Some of those old Supreme were masters of legal thought and argument as well as being highly ethical and/or moral - it comes through loud and clear in their opinions.

If I had ever gone into law, I wouldn't have gone this route - I would not be able to cope with the emotional trauma of having to represent and fight for men (and they're almost always men) who were about to be killed with the state's consent. I get queasy, literally, when the news organizations post their "deathwatch" stories on the days of executions. I cannot read about last meals, last meetings with families, last words, prayers, etc without feeling nauseous. The fact that these executions give anyone a sense of pleasure, of satisfaction (however grim it may be) is even more nauseating.

The death penalty's persistence in the US shows how strongly we have shifted away from the idea of rehabilitation to the idea of vengeance or retribution. If a person is so unbalanced, so broken, that he cannot be rehabilitated, then  - to my mind - this demonstrates that he is seriously mentally ill, and as such, should be committed to a secure mental institution, not killed. But many, many people who commit murders do so without "malice aforethought," - during robberies or other lesser felonies, out of fear, nerves, or while on drugs - and are not murderers at heart. Rehabilitation should be the goal for every single person convicted of a crime, whether it means physical rehab of the getting-off-drugs variety, or whether it means psychological rehab. The Quakers, with their penitent-iaries had the right idea. How we wandered so far away from that is a very unpleasant mystery to me, and says some very ugly things about the collective makeup of the American population.

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