Ethics Articles
Articles: Capital Punishment
>> = Important Articles; ** = Major Articles
Information on Capital Punishment (Kearl’s Ring of Death, 031111)
Dead man walking out (Economist, 000610)
The Problem with the Chair: A conservative case against capital punishment (National Review, 000619)
Scalia Questions Catholic Opposition to Death Penalty (Foxnews, 020205)
Executing the Retarded: How to think about a new wedge issue (National Review Online, 020621)
Not So Innocent: The death penalty: an argument continued (NRO, 021001)
Only Death Will Do: Punishing the sniper (NRO, 021114)
The Death Penalty (NRO, 030123)
Penalty Box: George Will gets capital punishment wrong (NRO, 031106)
Judge Not, All Ye Faithful: The beatitude excuse (NRO, 031223)
When Crime Hits Home . . . pretensions fall away — even in France (NR, 031108)
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(http://www.trinity.edu/~mkearl/death.html)
The United States executed 71 individuals in 2002, up from 68 in 1998 but 27 percent fewer than in 1999, when the greatest number were put to death since the early 1950s. One-third of these executions occurred in the state of Texas (whose Dept. of Criminal Justice’s “Death Row” statistics page for some reason even details final meal requests). Since its reinstatement in 1976, this ritual of retribution has been administered to over 600 Americans. For up-to-date statistics, history and famous trials check CBSNews.com’s Capital Punishment Interactive website.
According to Amnesty International’s 2002 report, only two countries executed more people than did the United States during the preceding year: China (1,060) and Iran (113). Together, these countries conducted 80% of all known executions worldwide. Congress’s 1993 crime bill extended the death penalty to an additional 47 Federal crimes, authorizing the death penalty for 15 Federal crimes previously punishable by life in prison. As the Derechos Human Rights organization notes, the ritual has been abolished de jure or de facto by 111 nations and is still imposed in 83 others.
Support for the death penalty is slipping in the United States, from a 1994 peak of 84 percent to, according to a May 2001 Pew Center report, 66 percent--about its level in the 1950s. This decline corresponded with declines in homicide rates.
In what was probably the most detailed investigation of capital convictions in the United States, a study released in June 2000 out of the Columbia University Justice Project found that nearly 7 out of 10 of death penalty verdicts made between 1973 and 1995 which were appealed were thrown out. A full copy of A Broken System: Error Rates in Capital Cases, 1973-1995 is now available for download.
In early 1998, Karla Tucker became the 145th individual executed by Texas (click here for the state’s death row information) since the moratorium on capital punishment was lifted in 1977. She was the first woman executed in that state since the Civil War, despite widespread support for her cause. A telegenic individual and a born again Christian, Ms. Tucker became known as the nicest person on death row and her supporters included televangelist Pat Robertson and the homicide detective who tracked her down. After her death, some speculated that perhaps the Christian Right might soften its staunch pro-capital punishment position. It didn’t. In March 2003 Texas conducted its 300th execution in 20 years.
Since fundamentalist Christians comprise roughly one-third of American adults, how might such a shift in stance toward this ultimate punishment affect their positions toward other death-related moral issues? To be more precise, to what extent does their moral ideology integrate attitudes toward capital punishment, abortion, and physician-assisted death (euthanasia)?
Looking at the 1996 NORC General Social Surveys, let us consider responses to the following three questions:
* Do you think it should be possible for a woman to obtain a legal abortion if the woman wants it for any reason?
* When a person has a disease that cannot be cured, do you think doctors should be allowed by law to end the patient’s life by some painless means if the patient and his family request it?
* Do you favor or oppose the death penalty for persons convicted of murder?
HOW ATTITUDES TOWARD CAPITAL PUNISHMENT
CORRELATE WITH ATTITUDES TOWARD ABORTION & EUTHANASIA
IN THE MINDS OF FUNDAMENTALIST PROTESTANTS IN 1996
|
|
Support Abortion |
Support Euthanasia |
|
Support Capital Punishment |
30.5% |
59.8% |
|
Oppose Capital Punishment |
24.3% |
41.3% |
Whereas for other Protestants opposition to capital punishment increases the likehood of individuals supporting abortion rights and euthanasia, for fundamentalist Protestants the relationship is the reverse. For instance, those fundamentalist Protestants who favor executions are 45% more likely to favor physician-assisted death than those opposing executions. Thus it might be predicted that any shift toward opposing capital punishment will lead to increasing opposition in this group toward abortion and euthanasia.
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The United States is executing prisoners at a faster rate than ever before. But the doubting voices are getting louder
AS DAMASCENE conversions go, there have been bigger ones. But when George W. Bush, governor of Texas and Republican candidate for president, decided on June 1st to stay the execution of Ricky McGinn, it seemed a turning point of sorts. Mr Bush has never before issued a stay of execution in his five years as governor. As for Mr McGinn, convicted of raping and murdering his 12-year-old stepdaughter, it was a break he could not have dreamed of. It came 20 minutes before he was due to be strapped to a gurney and injected with chemicals that would have killed him.
His case is still exceptional. It has been 24 years since the United States ended a short-lived ban on capital punishment and resumed, in the words of Justice Harry Blackmun, “tinkering with the machinery of death.” Since then, 640 people have been executed for capital crimes by the federal government (very rarely) and by the 38 states that impose the death penalty. Last year 98 prisoners were put to death, the highest number since 1951. This year the total is likely to be higher, approaching the level of the 1870s.
It is striking, though not surprising to weary abolitionists, that the United States should be stepping up the rate of executions when so many other countries are abandoning them. The death penalty is now banned (except in exceptional cases, such as treason) in 108 countries; America, India and Japan are the only big democracies that continue the practice. Of course, the United States also keeps much nastier company where death is concerned. According to Amnesty International, in 1999 America combined with China, Congo, Iran and Saudi Arabia to account for 85% of the world’s executions.
Despite flirtations with abolition (the most successful of which, in 1967, procured the hiatus mentioned above), most Americans have always supported the death penalty. Every presidential candidate this year proclaimed his or her solid support for it, and Mr Bush would be the first to say that his reprieve of Mr McGinn implies no change in his position.
Yet cracks have begun to appear in this apparently solid phalanx of support. The cause is simple: in recent years, Americans have been confronted with mounting evidence that the system under which people are tried, convicted and executed works so badly that it makes a mockery of the notion of justice.
Growing doubts
The statistics are telling. Since 1973, 87 prisoners have been released from death row after new evidence suggested they were innocent. That amounts to one release for every seven executions. And late acquittals are increasing. Between 1973 and 1993, an average of 2.5 death-row inmates a year were found to be innocent. In the six years after that, the rate nearly doubled to 4.6. In just the first three months of 2000, three inmates were exonerated and released. If so many can be reprieved, how many innocents might, over the years, have been sent to undeserved deaths?
In January, Governor George Ryan of Illinois lost patience with this. Condemning his own state’s “shameful record of convicting innocent people”, he announced a moratorium on executions until the state was able to get its house in order. It is a messy house: Illinois has exonerated 13 death-row inmates since 1976, one more than it has actually executed.
Soon after the Illinois moratorium, a Gallup poll revealed that support for the death penalty in the United States had dropped to 66%-the lowest in 19 years. Moratoriums are also under consideration in Pennsylvania, Maryland, New Jersey, Oklahoma, Alabama and Washington state. Seeking to build on this momentum, Senator Russ Feingold of Wisconsin introduced a bill in Congress in April calling for a temporary halt to executions nationwide. Another bill, sponsored by Senator Patrick Leahy of Vermont, promises more federal money for crime prevention to states that make an effort to improve the way death-penalty cases are handled.
The increasing evidence of innocence on death row has shifted the terms of the debate. This is no longer an abstract question about the morality of capital punishment; it is about the efficiency of America’s machinery of death. Sometimes, the debate centres literally on the working of aged technology. Florida’s electric chair is now before the Supreme Court; it has set some inmates on fire, and last year took much too long to kill a 300-pound man, Allen Lee Davis, who was shown contorting and bleeding in pictures that were released to the world on the Internet.
There is little evidence that capital punishment acts as an effective deterrent to violent crime. Even at America’s shockingly fast clip, there are still far too few executions, applied too randomly, to put any would-be felon off. In fact, the system’s capriciousness embarrasses even its supporters. A Texan is more likely to get death than a New Yorker, a black much more likely than a white. Blacks and Latinos account for 56% of death-row inmates and 42% of executions.
Support for the death penalty therefore rests on two different pillars: the desire for retribution, which runs deep in a fundamentally religious country, and the belief among the public that execution is the only way to prevent a criminal from one day killing again. Politicians have been quick to capitalise on this fear, portraying the criminal-justice system as a revolving door that allows convicted killers to go free after serving only a fraction of their sentences.
Yet the crime rate has fallen sharply over recent years: a fact which, in itself, has softened America’s support for executions. Moreover, according to Richard Dieter of the Death Penalty Information Centre, an increasing number of death-penalty states now have an alternative sentence of “life without parole”. According to Gallup, only 52% of Americans support the death penalty when offered the option of locking violent criminals up and throwing away the key.
The promise of science
Confidence in the death penalty is also falling for another reason: better forensic methods. Over the past decade, DNA technology has played an ever-larger role in correcting the mistakes of police, prosecutors and judges. Eight people have escaped execution after DNA tests revealed their innocence, and scores more have been exonerated after serving time on lesser charges. At present, however, only New York and Illinois have systems in place to pay for DNA testing in old cases where the innocence of the accused is in question. Most are reluctant to re-open the books. Clyde Charles spent nine years trying to persuade the Louisiana courts to let him have the DNA test that eventually exonerated him. Reconsideration of past cases has usually been done outside the judicial system: by journalism students, academics and crusading defence lawyers.
Two such lawyers, Barry Scheck and Peter Neufeld, have set up the Innocence Project at Cardozo School of Law in New York city. Their work, which re-examines the DNA evidence from long-forgotten cases, has led to the release of 65 people from prison and death row. In their recently published book, “Actual Innocence” (with Jim Dwyer, Doubleday), they boast that “ DNA testing is to justice what the telescope is for the stars: not a lesson in biochemistry, not a display of the wonders of magnifying optical glass, but a way of seeing things as they really are. It is a revelation machine.”
Mr McGinn will hope to agree; his execution has been delayed precisely to allow time for DNA testing, which should have been carried out before. Yet such testing has only recently become common procedure in capital cases; and since the physical evidence is no longer available in most past capital murder cases, there are limits to how much the “revelation machine” will be able to reveal.
Moreover, state courts, pushed by pro-death politicians, have become much more zealous in restricting death-penalty appeals; and the federal courts (including the Supreme Court) and Congress have followed suit. By passing the 1996 Anti-Terrorism and Death Penalty Reform Act, Congress restricted the number of federal habeas corpus appeals, limited the total amount of time such appeals can take, and cut off funding for legal-aid centres in 20 states. Perhaps most significant, the bill also devolved much of the authority in death-penalty cases back to the states-who show little sign that they are competent to wield it.
The mess in Texas
Consider George W.’s Texas, far and away America’s most execution-happy state, accounting for one-third of all executions since 1976. The governor is proud of that. “I am confident that every person that has been put to death in Texas on my watch has been guilty of the crime charged and has full access to the courts,” he said recently. Maybe so. Yet when examining the journey a capital murder case must take before it reaches the governor’s desk, it is hard to share his confidence. From the moment a person is charged in a murder case in Texas, he faces a system concerned less with determining whether he may actually be innocent, and more with ensuring that he ends up, neatly arranged, in the execution chamber in Huntsville.
Along with a handful of other states, Texas does not have a statewide public defender system. Instead, the responsibility of assigning legal counsel to poor defendants falls to the counties, who must bear the full financial burden. High-profile murder cases can cripple a small place: in Jasper, where a black man had been dragged to death by two whites behind their pick-up truck, the county had to jack up property taxes to pay for the trial.
In capital murder cases, the defence counsel is assigned by the judge; since judges are elected in Texas, they tend to win votes by highlighting their record of saving time and money during court procedures. Not surprisingly, Texas ranks 40th among states in the amount of money it spends on indigent defence. In 1998, Harris County (which includes Houston) spent a total of $26m to prosecute cases, as opposed to just $11.6m on lawyers’ fees for poor defendants.
The scrimping shows. Calvin Burdine’s lawyer fell asleep repeatedly during his trial. Gary Graham, due to be executed next month, was represented by a part-time lawyer who runs a bar, Buster’s Drinkery. On occasion, tax lawyers have been picked to defend capital murder cases. Lawyers are given precious little money to hire investigators and support staff in order to mount a defence. A 1999 study by the Houston Chronicle found that criminal defendants in Houston with court-appointed lawyers were twice as likely to go to prison as those who were able to hire their own counsel.
Once a defendant is sentenced to death row, he faces, as a guilty man, a famously sceptical state- courts system. Like the county judges, the Texas Court of Criminal Appeals is an elected body-and electoral success usually depends on promising to take a hard line with convicted criminals. On several occasions, the appeals court has upheld death sentences even in the face of proof that the defendant’s lawyer slept through the trial. Last year, the court rejected an appeal in a rape and murder case even after two tests revealed that the DNA found at the crime scene was not that of the defendant. Newly discovered evidence of innocence, said the court, was not sufficient grounds for overturning a conviction.
Once the appeals are exhausted and execution day approaches, the case is considered by the Board of Pardons and Paroles. This 18-member panel is charged with reviewing whether due process was given to the defendant, and whether there is any question of his innocence. The board has great power, since the governor can grant clemency only on its recommendation. Yet it will hardly run against his inclinations, since he has appointed every member of it.
Besides, the board does precious little deliberating. The members review the cases separately, never meet in person to discuss the facts, and send their decisions to Austin by fax. Such methods have been condemned by a federal court, yet Mr Bush has always stood firmly behind his appointees. The McGinn case marks the first time he has gone against one of their decisions; the board had rejected the request for DNA testing.
Last year, the Texas legislature considered a bill to reform the system of indigent criminal defence, giving the authority of appointing counsel to independent commissions and requiring a lawyer to be provided within 20 days. Surprisingly, the bill passed unanimously in both the House and Senate; but Mr Bush then vetoed it, after judges from all over Texas had persuaded him that the power to appoint defence counsel ought to stay with them. The governor also criticised the 20-day time limit, even though most states require counsel to be provided within three days. He argued that the provision was a threat to public safety, since, under its terms, defendants not given lawyers within 20 days would have to be set free.
Although the appetite for swift justice is perhaps keenest in Texas, it is also sharp elsewhere. In general, it is the states with the highest rates of execution that have the fewest safeguards to ensure that men or women are properly tried before they are executed. In Louisiana, Curtis Kyles had three retrials before he was reprieved; the prosecution did not reveal to the defence that their chief informant had himself been let off a murder charge in exchange for his co-operation. In Florida, a bill to limit death-row appeals was welcomed by the governor’s chief advisor on the issue with the words: “What I hope is that we become more like Texas. Bring in the witnesses, put [the inmates] on a gurney, and let’s rock and roll.”
Willie Hortons legacy
Despite growing public concern about how the death penalty is applied in the United States, the issue is still a distant flicker in the campaign. Since Mr Bush and Al Gore, the Democratic presidential candidate, are both supporters of the death penalty, there is nothing to debate on the hustings. Not so long ago, things were different. During the 1980s, as violent crime plagued America’s cities, the death penalty and law enforcement took centre-stage. Voters demanded tougher penalties for convicted felons, and being “soft on crime” meant certain electoral defeat. “There are no more liberals,” quipped James Q. Wilson, a criminologist, at the time. “They have all been mugged.”
The public’s hysteria over crime reached a peak during the 1988 election. The Republicans sensed that Michael Dukakis’s opposition to the death penalty was a weakness, and George Bush senior, then vice-president, brought it up often in debates. The strategy worked. So did a series of incendiary advertisements about Willie Horton, a convicted felon who went on a killing spree while on a furlough programme supported by Mr Dukakis. Mr Bush won in a landslide.
The Democrats learned their lesson; the next time round they put up Bill Clinton, a candidate who had learned his own lessons about being soft on crime. During his first term as governor of Arkansas in the 1970s, he regularly commuted the sentences of convicted murders, and was swiftly booted from office for his “liberal” crime policies. By 1992, Mr Clinton was a staunch death-penalty advocate. He even flew back to Arkansas during the campaign to oversee the execution of Ricky Ray Rector, a prisoner with severe brain damage. This may not have provided his narrow margin of victory, but it certainly did not hurt him.
As president, Mr Clinton has remained hawkish on crime policy, in part from political necessity. After the Republicans took control of Congress in 1994 he was forced to move to the right, and even supported a plank in the Republicans’ “Contract with America” that called for a reduction in death-row appeals. It has been a recipe for success. The Democrats have won two terms in the White House partly by learning never again to be on the wrong side of criminal-justice issues, particularly death.
Under such political conditions, it is unlikely that the United States will move any time in the near future towards the abolition of capital punishment. Although the innocence of several death-row inmates has been discovered only hours before their executions, there is not yet incontrovertible proof that any innocent party has been put to death. Without such proof (and probably in several cases), public opinion is not likely to shift. The most that abolitionists can hope for is that more states will follow the Illinois example of halting executions until the system is reformed.
Yet such reform could drive a stake through the heart of the abolitionist movement. The more the public becomes convinced that every person who sits on death row is guilty, the less of a groundswell there will be for ending capital punishment. It will be seen as a system that works efficiently.
Opponents will retain a moral argument: that it is wrong for the state to kill. That line has little force, though, in a country schooled in the biblical conviction of righteous revenge. The abolitionists’ most powerful argument in America is the one of which science may eventually rob them: the nagging thought that the authorities may have the wrong man.
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By Carl M. Cannon, reporter and essayist for National Journal
At a dinner party in Georgetown during the Reagan years, I was seated next to a liberal journalist I didn’t know too well — Sidney Blumenthal, then with The New Republic. No matter what has happened since, he was erudite and charming that night as we discussed the Washington scene. But my mind was largely elsewhere, for that week I had begun work on a story about a man convicted of murder who was possibly innocent. I was preoccupied, not with anything the administration might have been doing, but with the issue of capital punishment.
At some point, I asked my dinner companion his view of the death penalty.
“Oh, we’re against it,” he replied.
I recall being amused by that pronoun, “we” — Whom did he mean? The Democratic party? The elites? — but eventually I decided he meant the magazine he worked for. I asked him why.
“The moral issue,” he said.
I remember also that this remark antagonized me. I do not support capital punishment either, but this was so inadequate an answer that I found myself arguing the other side of the question. I did so by invoking the specter of Steven Timothy Judy.
On April 28, 1979, Judy was cruising down the highway when he came across 23-year-old Terry Lee Chasteen, who was stranded with her kids by the side of the road in her disabled vehicle. Pretending to be a Good Samaritan, Steven Judy further disabled Chasteen’s car by disconnecting the ignition wires, then drove her and her three children — Misty Ann, 5, Steve, 4, and Mark, 2 — to a secluded location. He raped and strangled Chasteen and drowned the children, one by one, in a nearby creek.
Judy was quickly arrested and convicted of capital murder. At trial, he assured the jurors that if they didn’t vote for the death penalty he’d kill again someday. “And it may be one of you next,” he warned. “Or your family.”
The jury obliged, and on March 9, 1981, the State of Indiana put Steven Judy to death in an electric chair nicknamed “Old Betsy.” The “moral” aspect of allowing Judy to live eluded the grasp of not just me, but a majority of Americans. Except to the most ideological of criminal-justice liberals — and perhaps to Judy’s fellow inmates at his Michigan City prison — his execution seemed a blow in behalf of civilization.
But if Judy’s crimes were hideous even by the grisly standards of Death Row, what makes his case notable almost 20 years later is that his execution — or rather, the lack of an outcry at his execution — was a signal that a momentous change was taking place in America. Until that night, there had been only three executions in the United States since the confusing 5-4 Supreme Court decision in 1976 invalidating all existing state death-penalty laws. But the states inclined to use this remedy had hurriedly rewritten their statutes to conform with the Court’s requirements, and just five years later here was Steven Judy saying to the guards as he was strapped into Old Betsy, “I don’t hold no grudges. This is my doing . . .”
It was not generally apparent then that a flood of executions was about to begin. Judy’s case seemed unproblematic in that he had not appealed his sentence. In so refusing, he had followed in the footsteps of Gary Mark Gilmore, executed by firing squad in Utah in 1977, and Jesse Bishop, who went to Nevada’s gas chamber in 1979. John Spenkelink, electrocuted in Florida in 1979 after spurning a plea bargain that would have earned him a measly 20 years in prison — he argued self-defense — was the only one of the four to go to his death unwillingly. But it was the business-as-usual aspect of the Judy case that served as a portent.
The night he was executed, liberal activists descended on Michigan City in a familiar ritual: the candlelight vigil. A crowd of some 200 of them braved the wind and rain to be there, but they were not alone. Earlier, at a “Protect the Innocent” rally in a downtown park, Mark Chasteen, the slain woman’s ex-husband, assured a pro-death penalty crowd that he’d “throw the switch” himself. As the hour approached, motorists passing the prison would slow down, honk their horns, and yell, “Burn, Judy!”
On that March night, the United States was heading briskly down a road it had not taken since the rough days of the Great Depression. Not much longer would executions be international news events. In a handful of states, most prominently Texas, they would actually become routine. In fact, within two years, crowds of several hundred Texans would be rallying outside the Huntsville prison on execution nights to celebrate. Battered by a violent-crime rate that threatened the very freedoms we are promised in our founding documents, and angered by repeated accounts of vicious predators who were paroled only to kill again, Americans were calling for a remedy prescribed long ago: “An eye for an eye!” demonstrators would chant.
And who can argue with this ancient wisdom? Well, I will. What if the issue is not an eye for an eye, but an eye for a finger? Or removing the eye of someone you thought put out your eye, but, in fact, only looks like the guy who did? This is not an academic question, and it never has been. And now, thanks to several high-profile cases in which condemned men were exonerated, and thanks to the added tool of DNA evidence, the true horror of the death penalty has made itself plain. The right question to ask is not whether capital punishment is an appropriate — or a moral — response to murders. It is whether the government should be in the business of executing people convicted of murder knowing to a certainty that some of them are innocent.
An Old Fight Chicago, where Sid Blumenthal hails from, has long occupied center stage in the timeless debate over capital punishment. Seventy-five years ago, the liberal lawyer and activist Clarence Darrow convened weekly meetings in his Chicago home to discuss the social issues of the day. Paul Cline, my grandmother’s husband, attended some of those meetings. I asked him once which discussions he remembered best. His answer: Those in which the great defense lawyer inveighed against capital punishment. Then, as now, the Left considered this remedy barbaric and capricious. It was, they said, applied too easily to the poor and the politically unpopular, especially to blacks, to whom the gallows were akin to lynching. Innocence was raised as an issue by liberals, but then, as now, it was not their primary objection.
Darrow was faced with a subtle dilemma, therefore, when he was retained as defense counsel in the Roaring Twenties’ most sensational murder case, the Leopold and Loeb trial. These defendants were not poor or black or immigrants or involved in unpopular political causes. They were, in fact, white, rich, well educated, and not politically active — and their lawyer agreed that they were guilty as hell. In his impassioned closing argument, Darrow actually alluded to the internal conflict this presented for him, even as he labored to spare Nathan Leopold and Richard Loeb the noose.
“This case may not be as important as I think it is, and I am sure I do not need to tell this court, or to tell my friends, that I would fight just as hard for the poor as for the rich,” said Darrow during his historic twelve-hour summation. “If I should succeed in saving these boys’ lives and do nothing for the progress of the law, I should feel sad, indeed.”
Darrow did save the “boys’” lives — at least one of them, anyway (Loeb was stabbed to death in the Joliet prison in 1936) — and he probably did much for the progress of the law as he saw it, too. His closing was taught in law schools for generations afterward, and it is still venerated by legal scholars who oppose capital punishment. “It left the presiding judge in tears,” notes Douglas O. Linder of the University of Missouri, Kansas City. “People still think of his summation in the Leopold-Loeb case as one of the most eloquent attacks on the death penalty ever made.”
But a perusal of Darrow’s argument today is not likely to reduce many conservatives to tears, or even sympathy. Although Darrow based much of his argument for mercy on the fact that neither defendant had yet reached his 20th birthday, the lawyer was also an avowed determinist who seemed to hold the defendants nearly blameless for their vicious crime. He also spent much of his time arguing that history was on a long, inexorable march away from capital punishment and that future generations would consider hanging as barbaric as crucifixion and burning at the stake. A modern conservative reading the trial transcript is more likely to identify with state’s attorney Robert Crowe, a gifted Yale Law School graduate who was at the time a rising star in Illinois Republican politics.
In his closing argument, Crowe sarcastically characterized Darrow as “the distinguished gentleman whose profession it is to protect murder in Cook County and whose health thieves inquire about before they go and commit a crime.” The term “junk science” was not yet in vogue, but the prosecutor accused a defense psychiatrist of “prostituting his profession” and mocked Darrow’s argument that the defendants weren’t ultimately to blame for their actions: “My God, if one of them had a harelip I suppose Darrow would want me to apologize for having them indicted.”
A Governor Doubts And so it went for three-quarters of a century, during which the arguments for and against capital punishment barely changed at all — until this year, that is. The governor of Illinois — a conservative, Republican governor named George Ryan — read about one too many cases of Death Row inmates’ being freed in his state because of new evidence that showed they were innocent of the crime. “Until I can be sure that everyone sentenced to death in Illinois is truly guilty; until I can be sure, with moral certainty, that no innocent man or woman is facing a lethal injection, no one will meet that fate,” Ryan said. “I cannot support a system which, in its administration, has proven so fraught with error and has come so close to the ultimate nightmare, the state’s taking of innocent life.”
As many now know, 13 inmates condemned to death by the State of Illinois have been cleared of capital-murder charges in the 23 years since capital punishment was reinstated. During this time, the state has executed a dozen inmates convicted of murder, a ratio of governmental failure so alarming that it struck the man ultimately responsible for carrying out the death penalty in a very personal way. “There’s going to be a lot of folks who are firm believers in the death penalty who may not agree with what I’m doing here today,” Ryan explained. “But I am the fellow who has to make the ultimate decision whether someone is injected with a poison that’s going to take their life . . .”
The governor also cited a Chicago Tribune investigative series that examined each of the state’s nearly 300 capital cases and found that these trials were routinely riddled with bias and error, including incompetent legal work by the defense lawyers, and that prosecutors relied on dubious jailhouse informants in about 50 of the cases. Two of the Illinois exonerations were brought about by Northwestern University professor Lawrence Marshall, who took on the cases without a fee. In one case, that of Rolando Cruz, Marshall’s work resulted in 1) the freeing of an innocent man after twelve years on Death Row for the murder and rape of a ten-year-old girl, 2) criminal charges against the authorities who prosecuted Cruz, and 3) the identification of the actual killer.
The most famous reversals in Illinois came about because journalism students at Northwestern kept unearthing evidence that exonerated various convicts on Death Row. For example, four black men from Detroit had been convicted of abducting a white couple, raping the woman and killing both her and the man. Two of the four, Dennis Williams and Verneal Jimerson, were sentenced to death. Students under the direction of journalism professor David Protess investigated the case and discovered that the prosecution’s star witness had an IQ of less than 75 and that prosecutors had fed her details of the crime and coached her into testifying about them.
Public pressure because of these revelations forced the district attorney’s office to allow DNA tests — which promptly eliminated as suspects all four of the men convicted of the crime. The students, going through the records of the case, found something even more stunning in the state’s files: the names of four other suspects who’d been identified to authorities, but never even questioned by the police. The students interviewed three of them (the fourth, the ringleader, had since died), and, incredibly, all three eventually confessed. They are now serving life sentences.
Then, a little over a year ago, Prof. Protess and five of his students, working with a private detective, wormed a confession out of a drug dealer for a 1982 double murder for which another man, Anthony Porter, had been convicted. Not just convicted, but sentenced to death. In September 1998, in fact, Porter had been two days away from execution when a state appeals court issued a stay to consider whether it was constitutional to execute someone with Porter’s IQ (estimated at 51). It turns out his IQ is a bit higher than that, but the point is that the delay in the execution gave the Northwestern team time to dig through the records and finger the man who subsequently confessed to the crime.
“The judicial system commits errors,” commented Prof. Protess, in a classic understatement, “because it’s run by people.”
This simple observation shouldn’t come as a bolt from the blue — least of all to conservatives. It just shouldn’t be a surprise that civil servants take shortcuts on the job, that juries drawn from the citizenry that gives Bill Clinton a 60 percent approval rating get swept up in the passions of the day, that political hacks appointed to the bench ratify those mistakes, and that bloated state-run bureaucracies are loath to correct them. “Criminal-justice system” is a high falutin phrase, but the courts are just a branch of government, and one that by design has less accountability than the other two.
In other words, if ideology and experience lead one to the conclusion that government is by nature inefficient and inept, then why should it be astonishing that the actions of one branch of government — the judicial branch — are so routinely wrong?
One Reporter’s Experience I will return to this point, but before I do, I want to explain why I am absolutely certain that this is a universal problem, that there is nothing aberrant about the Illinois courts. Before I was 30 years old, I covered four cases in which defendants were charged with capital murder, but were, in fact, completely innocent. (In a fifth case, a man from Petersburg, Va. — George Roberts — was convicted of killing his wife, served seven years, and after being paroled, convinced the local cops that he’d been framed.)
In the first of these cases, police in Columbus, Ga., arrested a black man named Jerome Livas and charged him with strangling and raping two elderly white women. No physical evidence linked Livas to the crimes, he did not fit the psychological profile produced by the FBI, and he was borderline mentally retarded (the crimes had been meticulously planned and carried out). When the killings continued with the identical method of operation while Livas was locked up in jail, the cops blithely offered the cockamamie theory that a copycat killer must be on the loose. Livas, they said, had confessed and — this is a phrase that often comes up in these cases — possessed details “only the killer would know.”
I covered the police beat in that town for the local paper, and a friendly cop called me at home one night to tell me that all those supposedly confidential details had, in fact, been fed to Livas by the detectives themselves, and that Livas was so unintelligent and so eager to please that he’d just parroted them back to the investigators. “This guy would admit to anything,” said the cop. Subsequently I tested that theory in a session the Washington Post dubbed “a sensational jailhouse interview.” It was sensational, all right, but sad. I succeeded in getting Livas to sign a confession for killing Presidents John F. Kennedy and William McKinley and for kidnapping the Lindbergh baby. Red-faced authorities dropped the charges against Livas, and years later, long after I’d left Columbus, they got the right man — presumably — and he was executed. But it’s pretty clear to me what would have happened to Jerome Livas if the real murderer had stopped killing when Livas was arrested.
I’m a Californian, so there was in those years a temptation to think that such miscarriages happen only in the Deep South or in jerkwater towns — but this proved not to be true. They can happen anywhere, in towns big and small, and they do. In my next job, at the San Diego Union, I was working the police beat when the Los Angeles Police Department publicly fingered a Massachusetts convict named George Francis Shamshak as a suspect in the so-called Hillside Stranglings. Daryl Gates, then the head of the Hillside Strangler Task Force, later to be famous (or infamous) as chief of the LAPD, even used that ubiquitous phrase “knowledge only the killer would have” to explain why they were sure they had the right guy. Except that Shamshak was in prison in Massachusetts when some of the killings took place, a fact I pointed out to Gates myself at an entertaining news conference. The details only the killer would know? Turns out that he’d read them in Newsweek.
In the early 1980s, a gifted investigative journalist named Jon Standefer and I wrote enough articles about an aged ex-con named Pete Pianezzi to shame Gov. Jerry Brown into giving him a pardon based on innocence, one of only seven such pardons in the state’s history. Pianezzi had been framed for a sensational Los Angeles mob hit of the 1930s that was page-one news up and down the West Coast. There were no good suspects, but Pianezzi was Italian, he had a criminal record, and the district attorney needed a conviction to quell the public pressure on his office. The prosecutor sought the death penalty, but a lone woman juror spared Pianezzi’s life by refusing to vote for execution. She reportedly explained her hesitation by saying that if it turned out the jury was making a mistake — the defendant insisted at trial that he was innocent — that error could be reversed if Pianezzi were in prison, but not if he had gone to the gas chamber. This was a prescient observation. Forty years later, at a victory party in San Francisco, Pete introduced Standefer and me to the North Beach crowd as his “saviors,” a distinction that properly belonged to that holdout juror whose name has been lost to posterity. She is the person who prevented the state from killing an innocent man.
To me, the most disturbing aspect of the Pianezzi case is that it was such a high-profile murder trial. If it can happen there, what about the anonymous cases in, for example, East Texas, in which the defendant is lucky if a news reporter ever sits through a whole day of testimony? Moreover, the Pianezzi case is no isolated example. Doubt about the guilt of the condemned man is a common thread in some of the most celebrated murder trials in this nation’s history. Bruno Richard Hauptmann’s chances for a fair trial in the Lindbergh kidnapping — and the ability truly to ascertain his guilt or innocence — were compromised by perjured testimony, tampering with exhibits, and the suppression by the New Jersey state police of exculpatory evidence. People remember also that Cleveland doctor Sam Sheppard’s guilty verdict was set aside because of the circus-like atmosphere of the courtroom and the shameful conduct of Cleveland’s newspapers. But do they recall that he was acquitted at his second trial?
The Hardest Questions Conservatives were rightly appalled when O. J. Simpson was acquitted after a screwy trial tainted by the defense’s overtly racial appeals to the jury. But the moral of this story is not that black jurors will no longer convict black defendants (of the 3,652 people on Death Row, 43 percent are black), it’s that juries make mistakes all the time. And sometimes — nobody knows how often — the mistakes they make are in the other direction: They convict innocent people.
In the years since Steven T. Judy was electrocuted, some 82 condemned people have had their capital-murder convictions set aside for one reason or another. A few, such as Steven Manning, a corrupt Chicago cop, didn’t get a fair trial but may have been guilty and are serving time for other crimes in which their guilt is unquestioned. But many more are like poor Kirk Bloodsworth, an ex-Marine from the Eastern Shore of Maryland who had no previous criminal record — and no involvement whatsoever in the crime for which he was convicted and sentenced to death. These men are released after years on Death Row with a pardon or a halfhearted apology by the state and, if they are lucky, an inadequate monetary settlement.
“I was separated from my family and branded the worst thing possible — a child-killer and a rapist,” said Bloodsworth on his release. “It can happen to anyone.”
In eight of these cases, including Bloodsworth’s, DNA evidence not previously available was used to free the condemned. Inevitably someone on the prosecution’s side will mumble bromides about how this proves that the system “works.” But that’s not what it proves. These DNA cases underscore a few basic points that are far from reassuring: What about the majority of cases — the non-rape cases, mostly — in which DNA is irrelevant? Why do so many state prosecutors tout DNA as much stronger evidence than fingerprints when it points to guilt, but then put up roadblocks for defendants who want to use it to establish their innocence? Finally, how many innocent people were executed in the years before DNA tests became available?
This is the crux of the matter, and no one seems to have the answer. Republican presidential candidate George W. Bush was asked directly how he could be certain that all 120-odd executions he has presided over as governor of Texas were carried out against guilty defendants. He replied that he was, indeed, certain that nothing like what had happened in Illinois had happened in Texas on his watch. “Maybe they’ve had some problems in their courts,” he said. “Maybe they’ve had some faulty judgments. I’ve reviewed every case, . . . and I’m confident that every case that has come across my desk, I’m confident of the guilt of the person who committed the crime.”
Incidentally, Bush’s brother Jeb, the governor of Florida, says the same thing, even though Florida has set aside the capital-murder convictions of some 20 Death Row inmates since 1973 — more than any other state. Gerald Kogan, the former chief justice of Florida’s Supreme Court, entered the debate recently, saying he’s convinced that Florida has, in fact, put to death people who were not guilty. “Knowing as I do the imperfections in our system, I know that we have, on occasions in the past, executed those people who are in fact innocent,” Kogan said at a Capitol Hill press conference. This led, in turn, to a challenge from Jeb Bush that Kogan name names. This is a fair point, but present-day Florida officials hardly seem preoccupied with ensuring that only the guilty are put to death. When Gov. Ryan was imposing his moratorium, the legislature in Tallahassee was in special session passing a law reducing the time convicted murderers have to appeal their cases or bring new evidence to light.
If Republican governors are at odds with one another over the issue, so too are conservatives generally. In recent weeks, Pat Robertson, George Will, and William F. Buckley Jr. have weighed in with op-ed pieces that express reservations about the death penalty over this matter of DNA and innocence.
Byron York, writing in The American Spectator, takes a different tack, arguing that innocence is a Trojan horse being used by liberals to advance a cause they have championed since the days of Darrow — abolition of capital punishment on the typical grounds: barbarism, racism, etc. The energetic Death Penalty Information Center in Washington, D.C., York points out, is virtually a wholly owned subsidiary of John R. “Rick” MacArthur, a rich left-winger whose taste in causes includes the Sandinistas and the Christic Institute.
York makes a valid point, and, as if to underscore it, all the usual suspects on the left have weighed in against capital punishment by simply topping their old arguments with a fresh concern about the risk of executing the innocent. In Hollywood, the writers of The Practice, a TV show concerning the law, turn one of their episodes into an anti-capital-punishment screed. From Chicago, Democratic representative Jesse Jackson Jr. authors a death-penalty-moratorium bill in the House. In Washington, Jackson’s father, wearing one of his many hats as a CNN newsman — he hosts a show called Both Sides, a title Fidel Castro must love — interviews defense lawyer Barry Scheck, and no one else, about his book on condemned men who have been proven innocent by DNA. At one point in the decidedly one-sided program, Jackson invokes the memory of Supreme Court justice Harry Blackmun, who famously wrote in a 1994 dissent, “From this day forward, I no longer shall tinker with the machinery of death. I feel morally and intellectually obligated simply to concede that the death penalty has failed.” Jackson and his lone guest keep using that word “moral” throughout the show, and the good reverend closes with the line “Let’s choose life over death, but through it all, at least let’s give life a chance.”
In sum, it’s enough to make any good conservative gag. Who wants to be on the same side as the Hollywood Left, or the two Jesse Jacksons, or Blackmun, the champion of life who wrote the Roe decision, or, for that matter, Barry Scheck, who attempted to convince the O.J. jury that DNA testing was a bunch of white man’s mumbo-jumbo? The answer is that conservatives need to ignore their impulse that anything the liberal establishment approves of, they must oppose. They should instead focus on this one issue: If a democratic society executes criminals with the foreknowledge that some percentage of them are innocent, are all members of that society implicitly guilty of murder themselves? And does it matter, from a moral and theological viewpoint, that we can’t know which convicts, specifically, will go to their deaths for crimes they did not commit, if we admit that some will? I submit that it does not.
The Agony of Doubt Interviewed for a comprehensive piece published last November in The Atlantic Monthly, Bill McCollum, a conservative Republican congressman from Florida, suggested that the possibility of executing an innocent person — he insists it’s a remote likelihood — is the price the nation must pay if it wants to reduce violent crime. In that same article, Chicago prosecutor William Kunkle, who secured the death penalty for serial killer John Wayne Gacy and also charged the police officers for their conduct in the Rolando Cruz case, went even further. He argued that anyone who believes man can design and implement a system that catches only the guilty is kidding himself. “Sooner or later it’s going to happen,” Kunkle said. “It comes with the territory. It is not humanly possible to design a system that is perfect. And if people are not prepared for the eventuality that human institutions are going to make mistakes, then they shouldn’t support the death penalty, and they shouldn’t elect legislators who support it.”
Amen, Mr. Kunkle. Murder is a terrible crime. And in the face of the awful truth presented to us by DNA testing, what name shall we call the state-sanctioned killing of an innocent man? That’s why society must not be a party to it. As Benjamin Franklin once said, “They that give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”
In 1982, a small-time Mexican-American thug named Leonel Torres Herrera was convicted of murdering two South Texas police officers. Herrera was sentenced to death. Eight years later, on the verge of his execution, a lawyer signed an affidavit saying that Herrera’s brother had confessed the killings. Texas courts refused to reopen the case because the new assertion had come long after their 30-day limit for additional evidence. Herrera’s case went all the way to the U.S. Supreme Court, which ruled 6 to 3 that Texas’s time limitations were not unconstitutional. The case sharply divided the high court. Justice Blackmun said caustically from the bench that “the execution of a person who can show that he is innocent comes perilously close to simple murder.” Sandra Day O’Connor, looking at other evidence in the case, replied in her written opinion that Herrera was not innocent “in any sense of the word.”
O’Connor’s clear-eyed observation should not be forgotten. Most of the time, the condemned are guilty. I certainly hope she is right in the Herrera case. But I am haunted by the possibility, no matter how remote, that she isn’t. In the two decades since Steven Judy went to his richly deserved death, 631 others have been executed. I do not share George W. Bush’s easy confidence that all of them were guilty. In 1981, the same year that Judy died and Leonel Herrera was apprehended, Pete Pianezzi was pardoned. Pete, then a very old man, told me when he got the news that he never really despaired that he would someday be vindicated because innocence, like truth, exists as a power of its own in the world, independent of the machinations of men. Pete died a few years ago, but his faith was greater than mine. Only God — not any living man — knows, for instance, whether Leonel Herrera really did it. All we know for sure is what the condemned man himself said as he left this world.
“Something very wrong is taking place tonight,” he cried. “I am innocent, innocent, innocent…”
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WASHINGTON — Supreme Court Justice Antonin Scalia believes Catholic judges who oppose the death penalty should resign.
Scalia, a devout Roman Catholic, said that after giving it “serious thought,” he could not agree with his church’s stand on capital punishment.
The justice questioned the church’s opposition to the death penalty late last month at a conference on the subject in Chicago. He was asked about it again Monday at Georgetown University, America’s oldest Catholic university.
The Vatican under Pope John Paul II has been strongly anti-death penalty, and the pope has personally appealed to leaders to reduce death sentences to life imprisonment. In 1999, he said capital punishment, abortion, euthanasia and assisted suicide are part of a “culture of death.”
Scalia, who has consistently upheld capital cases, told Georgetown students that the church has a much longer history of endorsing capital punishment.
“No authority that I know of denies the 2,000-year-old tradition of the church approving capital punishment,” he said. “I don’t see why there’s been a change.”
Scalia, a father of nine, including one priest, attended Georgetown as an undergraduate and later taught there as a visiting professor. He talked about the cultural move away from faith before answering questions from students.
In Chicago on Jan. 25, Scalia said, “In my view, the choice for the judge who believes the death penalty to be immoral is resignation rather than simply ignoring duly enacted constitutional laws and sabotaging the death penalty.” His remarks were transcribed by the event sponsor, the Pew Forum.
Scalia, 65, said Monday that “any Catholic jurist (with such concerns) ... would have to resign.”
“You couldn’t function as a judge,” he said.
Some in the crowd applauded when a female student asked Scalia to reconcile his religious beliefs with his capital punishment votes on the court.
Freshman Sean Kiernan said later that he was disappointed that Scalia talked about the importance of his religion, then took a stand contradicting the church. “I don’t think it’s correct,” he said.
Others applauded the justice’s remarks.
“He’s got a lot of courage and conviction,” said Stephen Feiler, the student who organized the event to celebrate Jesuit heritage.
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EDITORS’ NOTE: On Friday, the Supreme Court banned the execution of the mentally retarded. James Q. Wilson wrote on the issue in the July 23, 2001, issue of National Review.
Of the 38 states that allow the death penalty, some 15 exempt the mentally retarded from its reach, as does the federal government. Recently a group of retired American diplomats urged the Supreme Court to ban such executions generally, arguing that the absence of such a ban “will strain diplomatic relations with close American allies.”
This is not a very interesting complaint. Even if we ban the death penalty for the mentally retarded, European leaders will still dislike us for having the death penalty at all (or a missile-defense system, or Big Macs, or the English language). And the opposition of some of these leaders to the death penalty ignores the fact that many — in some cases, most — of their citizens want it. Democratic politics in Europe usually means letting elites do what they wish. In our own country, public opinion is a much stronger force on political decisions. In California, the liberal legislature has been worried about a bill that would ban executing the retarded for fear that its passage would allow their electoral opponents to criticize them for being soft on crime.
When elites disagree with popular views, they try to cope by changing the subject. They may have succeeded. In a June Fox News poll, two-thirds of Americans said that they oppose executions for the retarded even if they are convicted of premeditated murder. If they mean what they say (and that is not quite certain), it is not a trivial fact, for it suggests that Americans may be willing to say that these sentences when imposed on such people are “cruel and unusual punishment,” proscribed by the Constitution. Opponents of the death penalty are aware of this, and so there has been of late a flurry of agitation against executing the retarded, perhaps as an opening wedge leading to a ban on executions generally.
If Americans are generally outraged by putting to death a mentally retarded criminal, the Supreme Court will have great difficulty in avoiding the conclusion that the process is unconstitutional. But we cannot be certain that American views are based on a clear understanding of what a mentally retarded person is.
It is not one who is insane or an idiot. Current legal codes make the insane or idiotic eligible for such sentences as “not guilty by reason of insanity,” followed by a long term of confinement to a mental institution. The argument for the insanity defense is straightforward: If the accused person, as a result of some mental disease or defect, could not understand that the act he was committing was wrong, then he lacked the mental state that makes him personally responsible for his crime. In no state can an insane defendant be executed.
But mental retardation is a different matter. Conventionally, it is measured by a score on an intelligence test. If your IQ is no more than 65 or 70 (when the average IQ is 100), you can be considered retarded. Just how retarded you are depends on how low the score is, as well as on other features of your personality.
Why should being stupid excuse one from a penalty that is routinely imposed on people who are not stupid? The answer is that retarded persons may not be able to participate effectively in their own defense. They may be suggestible, ready to agree to a police officer’s misleading claim that they broke the law, or be unable to tell their attorneys what they need to know in order to represent them effectively.
But these precise questions are ordinarily brought before the court (and should be brought before it in every relevant case) as a matter of elementary fairness. No court should allow a person to plead guilty wrongly or to give his lawyer inadequate help. When presidential candidate George W. Bush said that Texas, which had no law barring the execution of the retarded, did not need such a law, I suspect he had these legal requirements in mind. Since he spoke, the Texas legislature passed a bill exempting the mentally retarded from the death penalty, but it was vetoed by Gov. Rick Perry.
Depending on the state, you can be called retarded on the basis of an IQ test, or the judgment of experts, or some combination of the two. Connecticut law, for example, defines retardation as “a significantly sub-average general intellectual functioning,” and this means doing poorly on “one or more of the individually administered general intelligence tests.” Now, if you wish to be considered retarded, your first task is to do poorly on this test. Unlike doing well, doing poorly is easy — just pretend you can’t remember some numbers, assemble some pictures, or define some words.
As long as the IQ test is the key variable and mental retardation is a mitigating factor, people facing trial have a powerful incentive to cheat on the test: Get a low score and you keep the needle out of your arm. Now, one might be able to overcome this bias if scientists perfect some means to measure IQ directly without any test-taking. For example, a machine might be devised that will measure average evoked brain potential. That potential, crudely put, is the amount of electrical energy radiated by the brain after it experiences some sharp stimulus, such as listening to a clicking sound. Studies suggest that this measured brain potential correlates with IQ. But machines that can measure IQ directly and accurately in this way do not yet exist, though if the elite hostility to IQ research could be eased, they might well be produced. If such machines do become available, then the chances that a suspect will be able to cheat on the IQ test will be reduced.
In states such as Florida, by contrast, two court-appointed experts are to evaluate a defendant’s mental capacity. If they find he is retarded he will not be subject to the death penalty no matter how guilty he may be. But in defining retardation, Florida says pretty much what Connecticut says: You are retarded if your IQ is more than two standard deviations below the average (which would make it roughly 70 or lower), coupled with “deficits in adaptive behavior” manifested between birth and age 18.
One has to wonder a bit about how skilled such experts will be at determining retardation (especially in measuring childhood “deficits in adaptive behavior”), how much power will be invested in judges by allowing them to pick the experts, the opportunities for endless litigation about the experts’ verdict, and whether experts will do a better job than jurors in assessing retardation. Even in Texas, a juror who believes the defendant is retarded can consider this a mitigating factor and by so voting block the imposition of the death penalty.
But the real problem that may confuse the public is the difference between retardation and competence. Some people with an IQ below 70 may well be competent to stand trial in the sense that they know certain actions are wrong, can communicate to their attorneys all of the relevant facts, and testify with credibility. In some cases, being competent simply means not being insane, but competency can include more than the absence of insanity. For example, a person may be sane but incompetent to stand trial if he does not have a sufficient ability to consult with his lawyer with a reasonable degree of rationality and factual knowledge about the trial of which he is a part.
Some people with an IQ above 70 may not be competent. A reasonably bright person may, because of some strong personality disorder, be incoherent or disruptive. If a defendant is found incompetent to stand trial, he is usually sent to a mental institution and then, if and when he recovers, brought back for trial.
Barring the execution of a person simply because the IQ (whether measured accurately or not) is below 70 makes little sense. It can be made to appear to make sense by a simple, misleading spin: “How can we execute a man who has the brain of a six-year-old?” This is a clever way of converting a complex issue into a made-for-TV sound bite.
Of course, we don’t execute six-year-olds, but for a reason that has little to do with mental ability. Six-year-old children have not had the benefits of those human experiences, practical circumstances, and adult guidance that would have made them a morally complete person, one able to grasp the wrongness of certain actions and the consequences that will flow from them. But an adult, even one with a low IQ, may well know exactly what he is doing when he breaks the law and understand full well the consequences of being caught. Many low-IQ offenders, just like most high-IQ ones, go to great lengths to conceal their crimes and evade detection. Among the Texas defendants who are described as retarded are men who killed their victims after raping them in order to prevent them from squealing.
Moreover, saying that an adult man with an IQ of 65 has the mind of a six-year-old child is not correct. IQ measures are standardized on a population of equivalent persons (say, all children or all adults). Having a low adult IQ is a measure of how well you compare to other adults who have taken the same test. A six-year-old child, by contrast, has an IQ (and it may be very high or very low) that is measured in comparison with that of other children.
The central issue is not retardation but competence. I would not be surprised to learn that low-IQ defendants make up a disproportionate share of those found to be incompetent to stand trial any more than I would be surprised to learn that high-IQ defendants make up a disproportionate share of those found to be competent. But the key question is not to measure their IQ or to allow experts to decide whether they are retarded; it is, instead, to decide if they are competent to stand trial. No one who is incompetent should stand trial or be executed as a result of a conviction.
When the U.S. Supreme Court decided in 1989 a case involving a mentally retarded convict, it ruled, 5 to 4, that the defendant, one Johnny Paul Penry, had in fact been found competent to stand trial and that he clearly understood that it was wrong to have killed his victim. But the Court also said that the jurors in his trial had not been properly alerted to the fact that they could consider retardation or childhood abuse, and so the case went back to Texas for a new trial. But the Court also said that, in time, such executions might be found unconstitutionally cruel and unusual. In 1989, only a few death-penalty states exempted the mentally retarded, and so the Court held that American opinion had not produced those “evolving standards of decency” that would bar such executions.
Today more states have become dissenters and so the Court now may take a different view of the matter. Even Penry’s case has been back before the Court: This year it overturned his execution again because in its opinion the jury in the new Texas trial had failed to consider fully his mental retardation. But the broader question of constitutionality may be settled in the case of Ernest McCarver, a North Carolina Death Row inmate who claims to be retarded.
If the Court decides that executing him constitutes cruel and unusual punishment, this will irritate many people who think the Court has no business reading public opinion into the Constitution. I tend to agree with them, but I also recognize that this is in fact what the Court often does. We have desegregated schools today, not because the Constitution or its amendments require it, but because the Court decided in 1954 that (for a variety of rather badly stated reasons) segregation was wrong. It may reach the same judgment on mental retardation, but I hope it would first try to clarify how retardation differs from competency and why a legally competent albeit retarded defendant deserves special protection. You may dislike judges creating law by changing what the phrase “cruel and unusual” means, but remember that neither the Constitution nor the Congress that drafted it gave it any meaning. To define it, the Court will inevitably have to consider the state of public opinion just as they might have in 1800 if they thought they should abolish torture. In 1977, the Court barred the execution of a man who had raped but not killed a woman because capital punishment was an “excessive” (I suppose cruel) penalty. In making this decision, the majority explicitly referred to the need to consider public opinion and what legislatures had done about it.
If the Court bars executions of the mentally retarded, the main task of state legislatures will be to devise ways of preventing the “stupidity excuse” from being manipulated by scheming defendants, just as the “frail old man” excuse has been tried by some Mafia leaders. I am not at all certain how the legislatures will do this.
Some people claim that between one-tenth and one-fifth of all people on Death Row are retarded. They may well be right. Murderers who get caught are often not very bright. The best we can hope for, I suspect, is to insist that state law make it very clear that a jury, and not some experts, will get to decide whether a person is retarded, and that the law will ensure that if a retarded person committed a crime that, if done by a smarter one, would result in execution, he will be kept in prison for life without the possibility of parole.
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Over the last three decades, more than 100 innocent people have been released from death row. That’s the claim that the Death Penalty Information Center makes, and it’s gotten a lot of people, from liberal senators to conservative columnists, to buy it.
Death-penalty supporters have sometimes responded to this figure by saying that it shows that the system works. It does, in fact, prevent people from being wrongfully executed. But that response minimizes the horror of making an innocent man spend years with a death sentence hanging over him.
Besides, there is a more important reason to reject the over-100 claim: It’s not true. DPIC counts people as “innocent” when they were released from death row for reasons wholly unrelated to any belief that they did not commit the crime charged. A man could be convicted of murder and sentenced to death, have his conviction overturned because of a technicality, and then walk free because witnesses had died in the interim. According to DPIC, he would be an “innocent” who was “exonerated.” Only a minority of the people on DPIC’s list are innocent in any normal sense of the word.
I made this point about DPIC’s list in an article for NR’s Sept. 16 issue. My report drew a letter from Richard Dieter, the head of DPIC, in the following issue (with a reply from me). It has now drawn another letter from Charles Baird and Gerald Kogan, who are respectively a former Texas court-of-criminal-appeals judge and a former chief justice of the Florida supreme court. They are also, more pertinently, the cochairmen of the Constitution Project’s Death Penalty Initiative.
(I’ve also received lengthy critiques of DPIC’s list from Dudley Sharpe, who runs prodeathpenalty.com, and from Ward Campbell, who works for the state of California in death-penalty appeals. Their critiques helped steer me to some of the information on which I draw in what follows.)
Both Dieter’s letter and that of Baird and Kogan make the same basic argument: By suggesting that many of these “exonerated” defendants may very well have been guilty of the crimes that got them on death row, I am trampling over — to quote Baird and Kogan — “the fundamental concept that a person is innocent until proven guilty.” They add, “An individual is considered to be innocent if acquitted at trial or if the prosecution has decided to drop all the charges.”
As the critics would have it, there is thus no distinction between the case of a man who was wrongly convicted of a crime that someone else committed and then cleared, and the case of a man who was eventually acquitted for wholly different reasons. Whether the man may actually have committed the crime, in other words, is beside the point.
The critics are fighting common sense here. They are also up against a legal system that is, in fact, perfectly capable of seeing that a person may not be legally guilty beyond a reasonable doubt of a crime without being actually innocent of it either. See, for instance, the Supreme Court’s remark in Bousley v. United States (1998) distinguishing between “factual innocence” and “mere legal insufficiency.”
Or consult the case of Jay Smith, one of DPIC’s “innocents.” Smith was convicted and sentenced to death for killing a woman and her two children for money. Because the prosecution failed to disclose the existence of two grains of sand that might have lent credence to a farfetched defense theory, the Pennsylvania Supreme Court overturned the sentence — and found that no retrial was permissible under state law. Smith then sued the state for wrongful imprisonment. The appeals court ruled against him: “Our confidence in Smith’s convictions for the murder of Susan Reinert and her two children is not the least bit diminished. . .” Other DPIC “exonerees” have seen their lawsuits and financial claims against states treated similarly. (Notably Jeremy Sheets, whose case I reviewed in my original article.)
Death-penalty opponents themselves used to be capable of seeing that acquittal does not an innocent make. DPIC’s list has its roots in a series of law-review articles and books by philosopher Hugo Adam Bedau and sociologist Michael Radelet, two death-penalty opponents. In their original 1987 article for Stanford Law Review, they wrote: “[W]e are primarily concerned with wrong-person mistakes — the conviction and execution of the factually ‘innocent’ — and not with the erroneous conviction of those who are legally innocent (as in cases of killing in self-defense). . . . We also do not consider a defendant innocent simply because he can demonstrate that, in a case of homicide, it was not he but a co-defendant who fired the fatal shot.”
In a 1998 article, they conceded that “[p]rosecutors sometimes fail to retry [a] defendant after a reversal not because of doubt about the accused’s guilt, much less because of belief that the defendant is innocent or that the defendant is not guilty ‘beyond a reasonable doubt,’ but for reasons wholly unrelated to guilt or innocence (for example, the prosecution’s chief witnesses may have died or disappeared).”
DPIC is less scrupulous than Bedau and Radelet were. Dieter’s group counts as “innocent” people who get off death row based on self-defense claims (including one case where a Native American successfully argued that, given his cultural heritage, it was reasonable to assume that a police officer would kill him if he didn’t shoot first). It counts people who got off death row because, while they were clearly involved in the murders for which they were charged, there is some dispute over who pulled the trigger. It counts every prosecutorial failure to retry after a reversal as an “exoneration.” It counts people who pled to a lesser crime on retrial as innocent, too. And all of this is just fine as far as Messrs. Baird and Kogan are concerned.
It’s important to remember the context for this debate about the meaning of the “presumption of innocence.” I am not trying to put any of the people who have gotten off death row back on it. I am not saying that they should be held liable for monetary damages to the families of the victims of the crime even though they were acquitted (although such an outcome is by no means foreign to the law, as O. J. Simpson could tell you). I am not even saying that Dieter, Baird, or Kogan should be less than thrilled if one of their “innocents” were to move in next door.
DPIC is trying to use these cases to show that we have come close to executing innocent people. For this critique to make any sense, the claim has to be that we came close to executing people who were “innocent” in the naïve, common sense of the term (i.e., people who did not actually commit the crime for which they were charged). All I am saying is that it is not evidence for this claim every time someone on death row leaves it. When someone leaves death row, it is not evidence that an injustice was done when he was put on it. Supporters of the death penalty may well think, in some of these cases, that the injustice was done when he was allowed off it. It follows from this possibility that the DPIC list does not prove what it purports to prove.
DPIC’s critique would have no political force if it were not misleading. The over-100 claim shocks people’s consciences because they think that it represents death-row inmates who were innocent or may well have been. If they were told that “over 100 people who were on the death row have been removed from it, some because they were innocent and others because they benefited from technicalities,” nobody would much care. If “over 100” such cases were considered too many, the problem could be solved by simply refusing to take people off death row any more.
At the end of their letter, Baird and Kogan say that the exact number of erroneous convictions doesn’t really matter. Numbers, schnumbers. Kogan has already demonstrated that he is basically indifferent to piddling questions of accuracy, having made claims even more outlandish than any DPIC makes. He said in 1998 that 75 people had been released from death row in the previous twelve years because DNA evidence cleared them, which is not even close to being true.
If all Baird and Kogan are saying is that there are problems in the administration of the death penalty and that things would be much better if we collected more data on its racial impact and had racially diverse juries — to mention two of their vaunted recommendations — then they should have written a letter in response to a different article. If their point was to support the federal Innocence Protection Act, which I criticized in my article, they should neither have wasted time defending the DPIC list nor rested their case for the act on two unsupported assertions.
If the numbers really don’t matter, here’s a piece of advice for Baird, Kogan, Dieter, and other death-penalty abolitionists and reformers: Stop using misleading ones.
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The fate of the alleged snipers (the younger of whom is reportedly singing his own praises as a killer) has inspired the latest round in the death-penalty debate. There are two basic positions. Position one: If these two are guilty, with upwards of 20 notches in their gunstocks, they should be turned over to the headman, or in these days the official needler, who will kill them in much the same fashion as dispatching a sick dog. Position two: Even if the snipers had 100 notches their lives should be spared, for by killing them we have stooped to their level.
Interest has intensified since the suspects were shipped to Virginia, where many a murderer has departed this life courtesy of the state executioner, with a mob celebrating his demise just outside the prison gates. One senses an upswing in support for the ultimate sanction. Snipers, like predatory males who murder little girls, seem to have a talent for bringing people off the fence. Americans are all about finding closure, and many of us natives will be pleased should our state do civilization’s duty by exterminating this pair (if found guilty, of course).
But principles are principles, and the antis are sticking by theirs, with the usual sense of moral superiority.
They tell us that killing ten people makes one no more deserving of death than killing one person, or perhaps three thousand people (a figure that may be hung around the head of another federal prisoner). Killing is killing, and killing is wrong. Mark Shields, the celebrity columnist, informed us the other week that we are no better than barbarians for wanting to put snipers to death. Non-celebrity critics, meanwhile, ask why we still execute murderers while “civilized” counties such as France, England, and Germany don’t. Another says Iran is the only country he knows of that still executes criminals who are under 18 (suspect Malvo is now supposedly 17). If we execute murderers, we are said to be stooping to their level.
But we’re not proposing to operate at their level. We don’t want to send a police sharpshooter to knock off the convicts while they innocently pump gas, unload packages, sit on a bench, mow a lawn, or walk to school. There is a vast moral difference between murdering innocent people and killing convicted murderers, just as there’s a vast moral difference between bombing an orphanage and bombing the people who bombed the orphanage.
Nor do we feel any special need look up to non-executing countries. Germany has nothing to teach the world about morality, nor for that matter does France or Italy, which both embraced a mass-murdering regime not too many years ago. If Iran executes 17-year-olds who shoot liquor-store employees in the back of the head, and who blow the heads off of women in suburban parking lots, and who gun down kids walking into school, then many of us can agree that they’re doing at least something right in Iran.
We might wonder what Mr. Shields would do if he had been in a position to stop the sniper — with the help of a shotgun — just as the sniper was pulling down on a family member or perhaps a favorite nun. One assumes he’d let the sniper have it, with both barrels if necessary. One further assumes that afterward, Mr. Shields wouldn’t put himself on the same level as the would-be killer. Far from it. He’d consider himself something of a hero, and he’d be right.
With that in mind, why would he think it’s morally okay to kill a would-be murderer, but not to execute the person who actually murders the nun — or 20 nuns, as the case may be, apparently with a great deal of premeditation. It is true that there’s no way to proportionally punish a deed as profoundly evil as this. Execution is about as close as we can come.
One social critic has suggested a national referendum on what to do with convicted snipers. His assumption is that we will probably encounter many of them in the future, and they may be harder to catch than these two — who, let’s agree, played a significant role in their own capture. He suggests a check-off box on federal tax forms allowing taxpayers to signal if they are in favor of providing federal correctional dollars to states that refuse to execute convicted snipers and mass murderers. He believes most Americans want nothing to do with providing food, shelter, clothing, legal representation to the likes of Charles Manson or David Berkowitz, no matter how sorry the latter says he is.
Many of us bet he’s right. We also have a sense that Malvo and Muhammad are likely to encounter a loaded hypodermic sometime in the futures. We see no shame in it.
— Dave Shiflett is coauthor of Christianity on Trial.
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PRO: Jonah Goldberg
As is the case with so many popular outrages, the clamor against the death penalty has grown in direct inverse proportion to the injustice involved. Just as the hysteria over political corruption increases as our campaigns become cleaner, the just cause for outrage over the death penalty has increased even as it has become more reliable and necessary.
Of course this sounds unbelievable. But it’s undoubtedly true (except for the period when the death penalty was unconstitutional). At one time in this country there were some 200 offenses punishable by death: Barn-burning, horse stealing, cattle rustling, etc. Moreover, state-sanctioned lynching was responsible for the unjust deaths of thousands of blacks, immigrants, and others. And, of course, in the days before Miranda rights and the like, who knows how many people were unjustly incriminated. Regardless, the media — egged on by activist groups which would be just as opposed to the death penalty if the standard of proof required 1,000 eyewitnesses, DNA evidence, and a voluntary confession — has simply decided that we have an unprecedented problem with capital punishment.
This story line has been abetted by the insistence of groups like the Death Penalty Information Center that 102 “innocent” men have been released from death row since 1972. But as Ramesh Ponnuru and others have noted, the vast majority of these men weren’t innocent at all, but merely wrongly convicted on technical grounds. Similar games are played with studies purporting to show racial disparities in the application of the death penalty. Many of these can be dismissed simply by noting the racial disparity among criminals. The rest — showing harsher penalties for murders of white victims than black — can be written-off by the fact that disproportionately white suburbs tend to impose the death penalty reliably while urban prosecutors and juries tend to be opposed to capital punishment. One need not dwell on the fact that the “enlightenment” of urban inner cities seems to buy higher murder rates.
Regardless, such studies attempting to show disparities, while interesting, miss the larger point. After all, the racial-bias allegation, if true, lends just as much weight to the argument that we should increase the number of whites (and Jews, Eskimos, Zoroastrians, Kurds, Hmong, etc) until we have a death row that looks like America. And the recent — and welcome — revelations that DNA tests have exonerated some on death row, could and should strengthen our confidence that those remaining on death row belong there. Yes, it’s unfortunate that poor people sometimes get inadequate representation in court, but that is an argument for better representation. And, besides, if they’re guilty of their crimes they are no less deserving of punishment for being poor (though the rich might be more deserving for being rich).
Which gets us as close to the heart of the matter as space here permits. If you believe capital punishment is a morally justified — or even required — tool of society, the question simply boils down to which individual deserves it. If one man deserves death for his crime, then neither his race nor the race or innocence of others has anything to do with what he deserves. We do not spare the lives of black men because we have executed too many black men today and we do not take the lives of white men because we need to fill a quota. And, we should not stop meting out punishment to the deserving simply because some people are confused on this matter.
CON: Rod Dreher
In the abstract, the death penalty can be just, and not only just, but necessary. In times of war or national emergency, or when society has no effective way of protecting itself from convicted killers, state-sanctioned execution can be warranted. Morally, I believe that if you murder someone in cold blood, you deserve to pay with your own life (I am open to the sanctity-of-life argument against the death penalty, but not yet persuaded). That said, my view is that for practical reasons, the way contemporary America employs the death penalty does not serve the interests of justice.
Because execution is irrevocable, the state must take every precaution to make sure those it intends to execute are truly guilty. We do this to an impressive degree, and our judicial system includes levels of appeal that give added protection from error. Yet error occurs. In the past 30 years, over 100 death-row inmates have been released after serious doubt was cast on their convictions.
DNA science has in recent years brought about highly publicized exonerations of death-row inmates. Some, maybe most, of this is a case of honest human error. But there have been cases of gross prosecutorial misconduct, including shielding exculpatory evidence from defendants and their lawyers. We have seen evidence of incompetence or corruption of expert witnesses, as in the Oklahoma City case in which a number of defendants were sent to death row based in part on work done by a crime-lab technician later fired for dereliction of duty. We have seen numerous cases of poor defendants being stuck with rotten public defenders who mishandle their cases, such as the Texas death-row inmate whose lawyer fell asleep at least ten times during his capital-murder trial.
The inability of poor people to hire good lawyers brings an unavoidable class bias into the death penalty process. There is also evidence that race is a factor in the way the death penalty is used. One study found that 80 percent of those sentenced to death had killed one or more white victims, yet only 50 percent of murder victims are white.
The lengthy and costly appeals process in capital cases makes it much more expensive to put a prisoner to death than to imprison him under maximum security for life. By thoroughly isolating inmates from human contact, the new Supermax prisons, which now house the most-violent prisoners, reduce the prospect that an inmate will harm a guard or another prisoner, or escape.
Human error, corruption, class, and possibly racial bias — these all are factors that bring meaningful doubt to the administration of justice in any criminal case. We accept the risk, assured that anyone falsely convicted could be set free in the future. But you cannot pardon a corpse. I do not care if truly guilty murderers die. But as long as we live in a society in which we can adequately protect ourselves without shedding blood, thus risking killing innocent men, we should err on the side of life.
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It hasn’t caused much of a stir, but George Will just came out against the death penalty. In a column in 2000, he had said that the “careless or corrupt administration of capital punishment” may be “intolerably common,” which would leave open the possibility that the solution was to improve the administration of it. But in a column last week, Will concluded that “the ultimate punishment makes reason. . . ultimately turn away.” He argues that the flaws in the administration of the death penalty — the mistakes, that is, that can lead to the execution of innocent people — are ineradicable so long as fallible human beings are the administrators. Conservative columnist Dennis Prager has written a response to Will, but otherwise he has been greeted with silence. It seems to me that when one of the nation’s foremost conservative journalists turns against the death penalty, that event deserves a little more attention than it has been getting. Attention, and scrutiny.
Will is influenced by Scott Turow’s book Ultimate Punishment. Turow was heavily influenced by his review of the administration of capital punishment in Illinois. That state has seen a disproportionate number of cases in which truly innocent people have been sentenced to death but ultimately exonerated. (I’m using the terms “innocent” and “exonerated” in their everyday senses, unlike some anti-death-penalty activists.) But that’s the problem: Illinois, and specifically Cook County in the era of the first Mayor Daley, is not representative of the nation at large today. The kind of misconduct by police and prosecutors that was involved in many of the troubling cases from that time and place is, thankfully, rare.
You could say that the Cook County cases nonetheless strengthen the argument for abolishing the death penalty. Abolition, the argument might run, would limit the damage that corruption can do. That argument assumes that something like Daley’s Chicago could reemerge in American life. That seems to me unlikely, but reasonable people could certainly disagree. But the more obvious response is to enact reforms to the death penalty that would have avoided the worst cases. (An example would be keeping the death penalty from being imposed based mainly on testimony from jailhouse snitches.)
No such reforms would, however, make the possibility of error in the application of the death penalty go completely away. Is Will’s position that any probability above zero is too high? We are not far from zero now. It is true that we have come close to executing innocents, as Will notes. But it is also true that there are no proven cases in which we have actually executed innocents in the last century.
If the death penalty is justified on the ground that deters murder or imposes an appropriate degree of retribution, then the rare execution of innocent people is an unavoidable side-effect of pursuing that worthy end. The state is killing innocent people as a side effect, that is, of pursuing justice or deterring crime. Such awful side effects happen all the time. Assuming, for example, that a speed limit of 65 leads to more deaths than a speed limit of 25, we would not think that this fact settles the question of what the government’s policy should be.
I’m not sure that the death penalty is justified, even for people who are unquestionably guilty. But the argument from the possibility of error — which is for most people the strongest arrow in the abolitionist quiver — seems to me quite weak.
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Religious folk looking for a way to get out of jury duty may have been handed one by an unlikely ally in civic sloth: trial lawyers. According to a new guidebook for the plaintiff’s bar, trial lawyers are advised to be wary of potential jurors with “extreme attitudes about personal responsibility.” These jurors, the guidebook counsels, often reveal themselves by chatting up “traditional family values” — values that reflect “strong religious beliefs.” If you want to get off the hook, chant a beatitude or two. That may well do the trick.
The scoop comes from journalist Jeff Johnson, who reports that legendary attorney David Wenner penned the warning for Litigating Tort Cases — known by some as the Shakedown Artist’s Bible.
“It is helpful to divide the jurors into two groups: the personal responsibility group and compassion-altruistic group,” Wenner writes in the guidebook. “Jurors who are extreme on the personal responsibility bias, or who have a high need for personal responsibility, will strongly favor the defendant. In contrast, jurors who are extreme on the compassionate-altruistic bias, or who have a high need for compassion, will strongly favor the plaintiff.”
No one should underestimate the dismay “personal responsibility” strikes in the heart of some trial lawyers. The plaintiff’s bar works long and hard to ensure clients are not held responsible for their own injuries. In some states, for example, seat-belt information — did the plaintiff fail to buckle his seatbelt, which might that have prevented him from sailing through the windshield? — is difficult, if not impossible, to admit as evidence. When someone pours hot coffee in her own lap, the temperature of the coffee becomes the issue.
Wenner, of course, is entirely correct. Jurors who believe in personal responsibility can destroy the best-laid plans of an attorney on the make. They do believe, as Wenner warns, that human beings “should be self-reliant, responsible, and self-disciplined. When people act irresponsibly and are not self-disciplined, there are consequences.” They also believe that individuals “must be accountable for their conduct. The motto of these jurors is that if a person is committed to personal responsibility, then he or she must first accept blame before blaming others. That means playing the blame game is unacceptable if the plaintiff was in the best position to avoid the injury.”
Spotting the undesirables is no big problem: “The personal responsibility jurors tend to espouse traditional family values,” the guidebook explains. “Personal responsibility jurors often believe that when someone harms you, the best response is to turn the other cheek. A lawsuit is viewed as revenge and unproductive ... often, these jurors have strong religious beliefs.” To no surprise, Wenner assured Johnson that he is in no way suggesting a religious litmus test. “That’s exactly the opposite of what I was suggesting. In fact, my mother would be really upset that she spent all that money on bar mitzvah lessons for me if that’s what I had meant.” Instead, he excludes religious jurors for their own good. “You are now asking that person to make a choice between their religious beliefs and the laws that exist in your specific state. Why should they have to be put in that position?”
This is intolerance posing as compassion. It is also a reminder of the steady marginalizing of religious belief and believers, be they candidates for judicial nomination or, apparently, ordinary jurors. Potential justices are excluded over fears they will not support abortion rights or will consider various “lifestyle” questions through a religious filter. For jurors, the offending belief is that humans should be held responsible for their actions and not attempt to shift blame to innocent parties in the pursuit of a fat jury award.
Responsibility and accountability, historically speaking, have been considered desirable qualities. The lack of either has been considered a grave flaw. Sticking one’s hand in the fire correctly results in a burn: It should not result in suing the oven maker, plus the person who installed the oven, the person who drove the delivery truck, the appliance maker, and the gas company. The person who attempted such a suit would be considered a lout, and any juror who responded positively to such a suit would reasonably be considered a partner in crime.
In Wenner’s world, however, jurors who shift blame are “compassionate” and “altruistic” — far superior to those who hold someone personally responsible for his actions. It’s yet another reminder that some lawyers are much more an offense to justice than common criminals.
One assumes Wenner’s warning will be very much taken to heart, and that it likely reflects an already deeply ingrained bias. We must make the best of things, of course: If dodging jury duty is your mission, try showing up at court and greeting plaintiff’s counsel with a cheery “may the Good Lord bless and keep you, you miserable shyster.”
— Dave Shiflett is a member of the White House Writers Group.
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No one is so liberal that he does not wish to visit condign punishment upon at least one criminal or class of criminals. No one is so compassionate that his understanding is incapable of giving way to the desire for vengeance. It is as if the desire to punish and exact revenge were genetic, part of human nature, like the propensity to walk on two legs or learn to speak.
This summer, France was transfixed by the murder of a well-known actress, Marie Trintignant, herself the daughter of a well-known film director, Nadine Trintignant. She was killed by her boyfriend of a few months, the French rock-music star Bertrand Cantat. Marie was in Lithuania with her mother, shooting a film about the life of the French author Colette, when Cantat joined her there. In the course of a drunken argument in a hotel bedroom in Vilnius, Cantat hit her savagely in the face several times. She fell into a coma; he put her to bed, and then went to sleep himself. The next morning, he called her brother, who was also in Vilnius; when the severity of Marie’s condition became obvious, Cantat took an overdose. Despite two operations, Marie died about a week later. Cantat awaits his trial in Vilnius.
Both the Trintignant family and Cantat himself were darlings of the Left. They not only knew all the best people, but held all the best opinions. Cantat in particular, whose group, the most successful in France, was called Noir Désir (Black Desire), was vocal in support of “good” causes. His heart bled for Palestinians, whales, and the sans papiers, the illegal immigrants in France. He did not hesitate to turn publicly on the hand that fed him handsomely, accusing the company that had made him a millionaire many times over of exploitation. He found it far easier, and no doubt more important, to evince concern about the whole world in the abstract than to behave decently toward the woman in his bedroom.
It was pretty clear from the outset that Cantat’s savagery was the result of his jealousy. Marie Trintignant had had children by three other men, with whom she kept amicably in touch. Cantat wanted her to sever relations with these men; indeed, as with many men of his jealous type, he wanted her to sever relations with everyone but himself. He wanted to be the center of her existence.
This is the kind of sordid story that I hear every day of my working life: In the last few years I have interviewed about 5,000 men who have beaten women, principally motivated by jealousy, and 5,000 women who have been beaten by such men (incidentally, women are also becoming more jealously violent). Of course, murder is still comparatively rare, but partial strangulation is common, as are other forms of extreme violence. I was not surprised to learn that Marie Trintignant bore the marks of strangulation around her neck, as well as marks of blows that the pathologist likened to the impact of being hurled into a wall at 125 miles per hour.
Marie Trintignant’s mother, Nadine, has just published a moving short book called Ma fille, Marie, addressed to her dead daughter. She cannot bring herself to mention Cantat by name, always referring to him as “your murderer.” The mother blames herself for not having taken notice of the signs that Cantat was dangerous. On one occasion, Marie sent her a telephone text message signed “Fifille battue” (Beaten Little Girl). Marie’s mother took this to be metaphorical: She could not imagine that her daughter was actually being beaten, though there were other signs that in retrospect are ominous. For example, Marie’s mood changed; she became more distant from people to whom she had previously been close; she would grow nervous if separated from Cantat for too long; to appease Cantat’s anger, she tried to cut out the love scenes in a film she was making.
Not surprisingly, Nadine Trintignant can hardly contain her bitterness and rage against Cantat. Is there anyone who would not sympathize with her? She sees no extenuating circumstances at all in Cantat’s conduct. When evil invades her own life, to understand all is suddenly not to forgive all. She discovers that Cantat had behaved in similar fashion toward other women, some of whom had to go to the hospital after his beatings, none of which ever led to legal action against him. As she herself points out, had his previous victims insisted upon such action — had he been imprisoned for a long time as he deserved — her daughter might still be alive today. It is clear that she wants him punished, and in prison for the rest of his life, not only to prevent him from ever committing a similar crime, but for the sake of revenge, or justice; she doesn’t actually say so, but I don’t think she would protest too loudly if the death penalty were still in force in Lithuania.
What is striking about her book, which is obviously sincere, is that she makes no attempt in it to distance herself, by intellectualization, from her natural and very deep feelings. She does not, for example, claim that Cantat is a victim, too — there being good sociological and psychological reasons why morbid jealousy is much more common than it once was, reasons for which Cantat himself could not possibly be held responsible. Where the general sexual mores are freewheeling, where there is little or no formal structure in relations between the sexes, extreme jealousy is bound to increase, at least so long as people desire the exclusive sexual possession of one another. Fidelity and promiscuity are not compatible. Since Cantat did not choose the sexual mores of the society into which he was born, his jealousy was not his fault — or so the argument goes.
The structure of this argument against Cantat’s personal responsibility for his acts is precisely the same as that offered by liberal reformers in the past 50 years. Burglars and muggers supposedly cannot help burgling and mugging, because they have come from disadvantaged homes, or an unjust society, or are drug-addicted, and therefore their desire for illicit gain is not their responsibility, and therefore punishment of them is morally wrong. It is the kind of argument that liberals use because they never expect to be the victims of crime themselves. They do not forgive those who trespass against them as much as those who trespass against others: the latter being, on balance, rather easier to forgive.
When, however, the crime is close to home — when the victim is not some nameless denizen of a distant and unfashionable area, but a loved one — then the whole pretense, the charade of sympathetic understanding, falls away. Cantat did what he did because he was a bad, or even an evil, man. He was an agent, not a vector of forces or a victim of circumstances. Gone is the language of sociology, of criminology, of economics: Only the language of morality now suffices. And only condign punishment counts as justice.
The vengeful liberal reaction to a crime committed against oneself or a loved one, perfectly natural in itself, establishes that the liberal is fundamentally a believer in the government of men, not of laws. What counts for him is the identity of the victim of the crime, and the victim’s relationship to himself. He is quite content to let whole neighborhoods, whole cities, indeed whole countries be submerged in crime, so long as it does not affect him personally. Until he or a loved one becomes a victim, his reputation for broadmindedness is all that matters.
The liberal attitude can survive only by a refusal to take the lives of others seriously. The crime that Cantat committed in particularly gruesome and brutal fashion is in fact extremely commonplace, though not perhaps in the circles in which the Trintignants moved. It is the more commonplace the farther down the social scale you descend, though it can occur at any social level. But the fact that such crimes are more commonplace at the lowest social levels is not a reason for ignoring them when they occur there, or for judging them by standards different from those by which Nadine Trintignant now judges Cantat. On the contrary, it is precisely at the lowest social levels that the law should be most vigilant, because it is at those levels that the protection of self-restraint is likely to be weakest.
In other words, the liberal is the inveterate enemy of the poor, happy to sacrifice them on the altar of costless generosity. And when I say that Nadine Trintignant is bitter, that her book is filled with hatred for Cantat that almost trembles from the page, I mean it as no criticism. Could the mother of any daughter beaten mercilessly to death by her jealous lover feel otherwise? But why is it that only the bitterness of the rich and privileged victims of crime deserves to be listened to, and not that of the inhabitants of slums? That is a question I have often asked my liberal friends, and I have yet to receive a satisfactory answer.
Mr. Dalrymple is a physician and psychiatrist who works in a British prison. He is also a contributing editor of City Journal, and the author of Life at the Bottom: The Worldview That Makes the Underclass.
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