Making the Case for Life

Today I will explain to you why I personally oppose the death penalty and what motivates me to make the case for life.  I hadn’t originally planned to do such a post. Then things changed. It began with me recently quoting one of my favorite books on public defenders, Defending the Damned. I’ve previously praised this book and I still recommend it to anyone interested in understanding what life inside a busy public defender office is like.

You see, I enjoy giving my friends in finance a hard time. So I emailed one such friend this quote:

A bankruptcy lawyer once hired Musburger to handle a case because of his trial experience. “He said to me, ‘I’m really glad to have you because you seem to be able to handle the pressure of this.’ And I remember thinking, This is only money. The only thing that can happen to us is that our client will lose money. Until you sit next to someone who can lose his life, you don’t know what pressure in a courtroom is all about.”

I won’t reproduce the response here but I’ll summarize the sentiment: money is hard to earn and those who kill hardworking, money-earning individuals deserve to die.

It may not be a secret to those who know me that I have done a little bit of death penalty work in the past. But, I don’t recall ever writing or blogging about my opposition to the death penalty before now.

So I will.

I will proceed to make the case for life.

I know from the outset that I probably cannot say anything new or make any point somebody else hasn’t made already. The death penalty is such a widely-debated and discussed topic that essentially every angle worth illuminating has been written on at length. And so, I do not hold this out to be anything other than an explanation for what motivates me to do death penalty work and make the case for life.

I. My Christianity Compels My Compassion

I would not be upfront with you if I ignored the core basis of my opposition to capital punishment: my religion. God’s message is unequivocally one of forgiveness, not of judgment. We are reminded: “avenge not yourselves, but give place unto wrath: for it is written, Vengeance is mine; I will repay, saith the Lord.” Romans 12:19 (emphasis added). Thus, the Apostle Paul reiterates one of the important facets of Christianity that sets it apart from Old Testament scripture—we are not to act retributively.

Many of my fellow Christians might point to verses in Exodus 21 as justification for the death penalty. There, the Hebrews are told: “He that smiteth a man, so that he die, shall be surely put to death.” Exodus 21:12. And we all are familiar with the instruction that “Eye for eye, tooth for tooth, hand for hand, foot for foot, Burning for burning, wound for wound, stripe for stripe.” Exodus 21:24-25. Jesus comments on this directly, telling us: “Ye have heard that it hath been said, ‘An eye for an eye, and a tooth for a tooth.’ But I say unto you, That ye resist not evil: but whosoever shall smite thee on thy right cheek, turn to him the other also.” Matthew 5:38-39.

I don’t mean to belabor the point too much for those who are not Christian but I highlight the scripture as an important rebuttal to the far too many Christians who are pro-death penalty. It seems to me such a position is at odds with the teaching of God. The very essence of Christianity is compassion and redemption. The notion that we should take the ‘life for a life’ approach not only contravenes God’s command to us on the specific issue of punishment but also is incompatible with what it means to be Christian.

In the amazing play-turned-movie Doubt, Sister Aloysius remarks early on that, “when you take a step to address wrongdoing, you are taking a step away from God, but in his service.” By the end of the story, this notion is called starkly into question and Sister Aloysius acknowledges that “of course, there is a price” to be paid in stepping away from God. Quite right. And indeed, I am very skeptical of any compatibility between the notions of serving God and taking a step away from him. We need not sacrifice our closeness to the Lord in order to do him service. We need not take retribution into our own hands. We need not kill those who have killed.

II. Proof Beyond A Reasonable Doubt Is Too Low A Standard When Someone’s Life Is At Stake

Those knowledgeable about criminal justice in America understand the concept of a “burden of proof.” Jurors have to unanimously be convinced beyond a reasonable doubt that the defendant is guilty of the charge(s) alleged. What does that mean? Good question. A lot of jurisdictions define reasonable doubt as the kind of doubt that would give you pause in a matter of personal importance to you. Here’s how the New York criminal jury instructions suggest that a judge explain it to a jury:

A reasonable doubt is an honest doubt of the defendant’s guilt for which a reason exists based upon the nature and quality of the evidence. It is an actual doubt, not an imaginary doubt. It is a doubt that a reasonable person, acting in a manner of this importance, would be likely to entertain because evidence that was presented or because of the lack of convincing evidence.

That leaves it a little nebulous about whether a juror needs to be 100% convinced of guilt. The language, on its face, says that you can convict even if you have doubts so long as those doubts are not “reasonable doubts.” The quote above mentions “imaginary doubt”—I don’t know what exactly that is. However, I think one could argue that any doubt you can support / explain would be ‘reasonable’ in New York thus you essentially must be 100% convinced of guilt.

Compare that with the jury instruction in Massachusetts, which says “proof beyond a reasonable doubt is not proof beyond all possible or imaginary doubt. Instead, it is proof that excludes every reasonable hypothesis except that the defendant is guilty. It is proof to a moral certainty—as distinguished from an absolute certainty—that the defendant committed the crime(s) charged.”

This is a troubling notion when the consequence of finding guilt is death. If we are to expose a person to death as a potential punishment, there should be zero doubt allowed in the minds of the jurors. The burden should be “proof beyond all conceivable doubt.” Absent the requirement of absolute certainty, we continue risking the possibility of future Cameron Todd Willinghams and Troy Anthony Davis’

That is unacceptable.

Those who have no moral issues with the death penalty should still recognize this truth. It is simply not just to risk killing a person who is innocent. But right now, no state has come close to putting measures in place that would eliminate the risk. The first and foremost place to start would be raising the burden of proof. That should not be where things stop. As I see it, here are some other measures that we really would need in order to eliminate the risk of executing the innocent:

  1. Alter the charging process and create a committee that determines if a case is ‘death eligible’ prior to prosecution. In most if not all jurisdictions right now, it still lies solely in the discretion of the prosecuting authority to determine whether or not they will pursue the death penalty. This is an error. I think it would make more sense to have a screening committee comprised of prosecutors, defense attorneys, judges, and other community members who review the evidence at the time of indictment and make a case-by-case determination about whether the death penalty should be available for the prosecutor to pursue. This determination should occur prior to the trial. If the committee flags the case as death eligible, the prosecutor would still have the option to seek a lower sentence and the sentencing authority would still have to independently agree to impose the death penalty after a sentencing hearing where the defense could present mitigating evidence.
  2. Require an independent review by a special prosecutor. If the prosecuting authority seeks the death penalty, a special prosecutor should be appointed by the court to review the case and make an independent determination regarding the strength of the evidence. This special prosecutor should be from somewhere far, far away with essentially no connection to or knowledge of the case. This would help reduce the political pressure on a DA to be ‘tough on crime’ and mitigate the risk that those too close to the crime geographically and emotionally might have blinders on to the full range of suspects, punishments available, etc…
  3. Increase the size of capital juries and change the structure of deliberation.  For several reasons, a death penalty jury should have more members. First, it increases the likelihood that the jury venire will be diverse and bring a range of experiences to the deliberations. Second, and related, it increases the likelihood that all the evidence will be considered and weighed carefully. Next, a death penalty jury should be moderated by an independent legal professional sworn to secrecy who does not cast a vote regarding the verdict. This serves a few purposes. It will help facilitate more complete and thorough deliberation by all of the jurors not just the vocal few. It also will allow an independent member of the judiciary to deter or detect misconduct such as improperly considering propensity evidence or media coverage not admitted into evidence at trial.
  4. Improve the conditions for capital defense attorneys. This one is tough because its where the greatest variation lies. In some states, the court does a decent job appointing qualified attorneys and giving them appropriate resources to do zealous defense. In other places, funding is abysmal. There should be a required certification process for all defense attorneys—not just court appointed ones—seeking to defend those accused of the death penalty. Complementing this, the court must be willing to properly fund the defense in cases where the individual is indigent.

Some may be quick to point out that all of these suggestions would be costly. Yes. Yes they would. But you can’t put a price on life and these steps would all have a concrete ability to eliminate the risk that innocent people end up on death row. Absent these sorts of measures, and wholly aside from my moral opposition to the death penalty explained above, I cannot support taking someone’s life. The risk that an innocent man or woman is killed is simply too great under the current system.

III. Guilt & Innocence Are Not Often Black & White

In addition to my fundamental worries that factually innocent people could end up on death row, I also worry that many criminal defendants who face the death penalty are not mentally well. This may mean that they have a really low IQ or that they suffer from anti-social disorder. Look at James Holmes or Adam Lanza as prime examples. These people may have solidified their reputation as mass murders but they also displayed clear signs of mental illness.

Regrettably, it is likely that most people who kill on such a scale or in such a manner that they are facing the death penalty are the same people who have mental illnesses needing addressed. It is problematic enough to suggest that a mentally healthy, sane person should be killed for their crimes. It is unconscionable to say that of a mentally ill person. The death penalty is a sort of social contract in and of itself. Even in states with the death penalty, not all murders face capital punishment and for good reason. The choice of death as opposed to LWOP does not turn on the crime itself but looks to a variety of factors. Essentially, we’re looking to see how ‘acceptable’ or ‘understandable’ the murder was. Could this arguably be self-defense because a rival gang member started to pull something out of his pants? Was this a reaction to finding the deceased in bed with the killer’s spouse? Did the defendant inflict unnecessary harm?

All of these questions seek to understand something deeper: to what level did the defendant flout and reject society’s expectations? We find it unacceptable to kill a rival gang member in a shoot-out but even more unacceptable to kidnap and kill innocent children for sport. Certain types of murder are a greater rejection of the social contract and the defendant ‘goes in’ to the crime not only recognizing that he has crossed a line but relishing the fact that he has crossed a line.

Except that this isn’t often quite the case.

The people ‘capable’ of committing death-worthy murder are often not ‘capable’ of understanding or rejecting the social contract described above. Every major shocking killing I can think of lately illustrates this. Jared Loughner’s shooting of Senator Gabby Giffords; the school shootings at Columbine, Virginia Tech, and Sandy Hook Elementary; James Holmes’ movie theater massacre; and the Fort Hood shooting all feature shooters with widely-acknowledged signs of mental illness. It’s precisely because these individuals didn’t have the ability to understand and accept social conventions that they so thoroughly flouted them. The implicit social contract we presume these people accepted doesn’t exist.

Guilt and innocence are not black and white concepts because culpability entails a number of separate components. Did you know what you were doing? Did you have the ability to control it? Did you appreciate the unlawfulness of your conduct? Some mentally ill people fully appreciate that they are violating established laws but cannot control impulses. Other mentally ill people can control behavior but lack an ability to grasp what behavior is prohibited. The complexities involved in a calculation of culpability illustrate why the death penalty is often inappropriate. A finding of ‘guilty’ encompasses more than an acknowledgment that the defendant is factually responsible for another’s death—it also incorporates certain findings of mens rea (the mental intent to kill). Even those who we have no question caused the death of someone else are not necessarily guilty in the fullest sense of the word because they may not have appreciated the extent to which their conduct was socially unacceptable. That’s especially problematic and is all the more reason to shy away from death as a tool of punishment.

I can summarize all of this in simpler language though. How often have we heard someone work to temper another’s anger by saying, “don’t get mad at him; he doesn’t know any better”? Conversely, when do we feel most vindictive and willing to punish? When “he knew exactly what he was doing and meant to. He has no remorse!” The latter sentiment is the one we use to support the death penalty but it’s often wrongly formed on a lack of complete information. The risk that we incorrectly come to this latter line of thinking is too high and thus inspires in me the same trepidation that I have due to concerns of factual innocence.

IV. The Typical Manner of Execution Is Inhumane

Lastly, I can’t help but find the current method of execution to be profoundly inhumane. Lethal injection, whether by a three-drug or one-drug protocol, is probably the most undignified way to kill someone. This is something that perhaps you have to watch to grasp in its fullest but the individual is strapped down to a gurney almost as you might expect a crazy person to be. Essentially unable to resist, a needle is inserted into the person’s vein. In the three-drug protocol scenario, a first drug is injected to put them to sleep in much the same way a tranquilizer is used to sedate a wild animal. Next, a second drug is injected forcing their body to betray them by preventing them from vocalizing or moving at all. It is a paralytic that even prevents breathing. Finally, a third drug stops the heart. These days, more and more states are switching to a one-drug protocol. Under the one-drug protocol, only the anesthetic is administered but at a lethal dose by itself. The two most common anesthetics routinely being used in the one-drug protocol are pentobarbital and sodium thiopental. In fact, this one-drug method is the same way in which animals are euthanized.

I find this so inhumane because it is essentially forcing the body to kill itself. The lungs are made to stop working, the heart is made to stop beating. Death may be death but it seems far less degrading to die because someone shot you than because you were strapped down to a gurney against your will and drugs were forced into to switch you off. Its as if the human body is naught but a robot which can be unplugged and disassembled. The clinical, sterile nature of it creeps me out. Wouldn’t it be more dignified to die by a single gunshot to the brain? From what I understand, it would not only be faster but also would be painless. More to the point, it would lack the undignified nature of forcing the individual into a state of paralyzed unconsciousness, never aware of the moment of their own death. I recognize that I probably am far from the consensus view on this point but it is nevertheless how I feel.

V. Concluding Remarks

There are lots of arguments against the death penalty, which range from the philosophical to the practical. I have not attempted to make all the arguments; just the ones that compel me to oppose the death penalty. As a Christian, I believe in seeking out and promoting the best in people. I believe in compassion and redemption. I believe in second-chances. And I believe that vengeance is for God alone—not for me. These tenets of my faith couple with my concerns about the all-too-high risks of the state killing those who are not fully culpable and my belief in the inhumanity surrounding the mechanisms used to carry out the death penalty. Put together, these considerations have lead me to champion for liberty and make the case for life.

-Zachary Cloud


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