Tuesday, September 28, 2010

Capital Punishment

I would like to describe a journey. It began with one of my law school classes: Criminal Law 101. We started with the reasons for criminal penalties, and there are only five: protection of society, deterrence, reformation, restitution, and retribution. I didn’t think much about the implications of these reasons until around November of 1997 when I chanced to see an episode of ABC Television’s newsmagazine, “20/20,” which featured a prison interview of Karla Faye Tucker, who was facing execution in Texas within several months for two murders she had committed in 1984. What was compelling about her case was not that she would be the first woman executed since 1984 (and the first in Texas since 1863) – it was that she had so thoroughly reformed.

Because of a dysfunctional home life, she was involved in drugs and sex by the age of 12 and prostitution shortly thereafter. She was briefly married at 16 and hung out with motorcycle gangs in her early 20s. When she was 23 and after a weekend of drug use, she and her current boyfriend went to the apartment of an ex-boyfriend with theft on their minds. Finding him with his new girlfriend, violence ensued with the other couple being killed, in part by a pickaxe. Karla Faye Tucker confessed defiantly to all of this at her trial, and the horrified jury condemned her to death.

Before her trial was even over, she began to reevaluate her life and turn to God. A church with a prison ministry took her under its wing, guiding her reformation. She eventually married the pastor of the church, and ministered to other female prisoners. When I saw her and heard her speak after 14 years of this transformation, I was stunned. I remembered thinking to myself, “Why, this is a righteous woman.”

I was appalled at the idea that in a matter of months this person, who had been so completely regenerated, would be put to death. If any case cried out for clemency –commutation to a life sentence at the very least – surely this was it.

After brooding about this issue for weeks, I drafted a letter to the Texas Board of Pardons and Paroles (see link to my letter below). I got no response, so I sent a personal letter to then Texas Governor George W. Bush. I got a form response, saying that he was committed to implementing Texas laws and had no leeway to act independently. Meanwhile the Board had voted against commutation. However, the case was gaining awareness on the part of the public and opinion was building for leniency. Then the Monica Lewinsky scandal broke in January, 1998 and captured the public’s attention. Karla Faye Tucker was executed on February 3.

These events ignited my passionate opposition to the death penalty. Fundamentally, my reasoning is this. Take the five reasons for criminal sanctions – protection of society, deterrence, reformation, restitution and retribution – and weigh them against the practice of execution. Incarceration certainly does as good a job of protecting society as putting someone to death. OK, how about deterrence? Doesn’t the prospect of being put to death for his deed make a criminal think twice about taking the life of another? Unfortunately, the answer is “no.” Many studies have shown that the possibility of execution does not deter would-be murderers. (See this link.) Reformation? If this were truly valued in our penal system, someone like Karl Faye Tucker would have been spared. Restitution is not a factor since nothing can bring back the person who was murdered. So what’s left? Retribution, or as it’s more commonly known: revenge.

When you get down to it, the only reason for executing criminals is revenge, either standing in the place of the victim’s relatives and effecting, by proxy, their thirst for blood – or acting on behalf of society’s outrage at the heinousness of the crime.

The proponents of death call for “justice,” but is this anything more than a modern version of “an eye for an eye, a tooth for a tooth”? As other wits have said, follow this rule, and soon the whole world will be blind and toothless. What is “justice” more than a self-righteous expression of the thought: “I have played by the rules. You haven’t, therefore you must pay.” Pay why? Is it perhaps payment as compensation for the righteous person’s self-restraint?

I don’t see how a Christian, especially one who claims to be “pro-life,” can uphold the death penalty. What, indeed, would Jesus do? He certainly taught forbearance instead of revenge. He healed the severed ear of the servant of the high priest. He rejected the ways of the world and asked God to forgive those who crucified him. How can we, then, allow ourselves to be so overwhelmed by evil that we feel we must exterminate it? Jesus’ path was clearly to overcome evil with good, to love until the hate and hurt is overcome.

The worst part of the Christian’s advocacy of the death penalty – something that amounts to a sin in itself – is depriving the criminal of the opportunity for reformation and regeneration. Isn’t this (learning to do good) what we’re here for, what God wants us to do? There are countless examples of people who have used their incarceration to reexamine their lives and find the opportunity to be and do good while in prison. And there are many examples of such people being executed after prison has essentially accomplished its highest goal of reformation. That is what was so horrific about the case of Karla Faye Tucker. It’s like executing the butterfly for the sins of the caterpillar.

Most of us (thankfully) are repulsed by the idea of executing children. But at what age does a person no longer deserve this protection – 21, 18, 16, 14? Is it really a question of age at all? Psychologists say that teenagers often lack the capacity for restraint or for evaluating the consequences of their actions. Does attaining a certain age prove that one has acquired that ability? I, and I’ll bet you, too, have known people who didn’t “grow up” or achieve a decent degree of wisdom and humanity until their 20s, 30s or even later.

That brings up the question of the mentally deficient. Most of us wouldn’t countenance execution of an insane person or a person with the mental age of a child. Maybe there is no hope for improvement of such people, but the murderer who lacks self-restraint, or ignores the consequences of his action is similarly mentally deficient. But most such people have the ability to “grow up,” to see the error of their ways and change. Why can’t we give the “caterpillar,” the opportunity to become a “butterfly”? Isn’t doing so an imperative for a Christian?

One of the most frightening prospects that the death penalty holds for anyone with a conscience is this: what if we execute an innocent person? Scores of death row inmates have been exonerated by DNA evidence over the past two decades. But what was it that put them on death row in the first place? Answer: a faulty judicial system. We want desperately to believe that our system of justice is just. But it relies on a contest between prosecutor and defense attorney that is often unequal . Prosecutors have been known to withhold evidence; defense attorneys have often been overworked or simply incompetent. Opponents of the death penalty (30% of the population according to a June 2010 Rasmussen poll) are systematically excluded from juries. (What can you say about those who are left in the jury pool?) Judges, typically elected to their posts, sometimes bring their prejudices with them. Appellate courts are designed to catch only mistakes of law, not fact. Governors, who have the power to commute death sentences, almost never do so because they are political animals who are less concerned with mercy than they are with the public opinion that will help them get reelected. (Given the current public opinion climate, no politician could ever be elected governor of a state if they were opposed to, or even had doubts about the death penalty.)

Earlier this year I read a book titled, The Autobiography of an Execution by David R. Dow (2010, Twelve – Hachett Book Group, 271 pages). The author is a Texas lawyer who has represented over 100 death-row inmates over the past 20 years. In this book, he describes in detail his handling of one case, the details of which he disguises. His client was ultimately executed. He observes (pp. 254-255): “Of the hundred or more deathrow inmates I’ve represented, there are seven, including Quaker [the subject of the book], I believe to be innocent. They get sentenced to death because they have incompetent or underpaid trial lawyers, and because human beings make mistakes. They get executed because my colleagues and I can’t find a way to stop it. Quaker won’t be the last.”

Here is another telling point that Dow makes (pp. 115-116): “Almost all my clients should have been taken out of their homes when they were children. They weren’t. Nobody had any interest in them until, as a result of nobody’s having any interest in them, they became menaces, at which point society did become interested, if only to kill them.”

That brings me to my letter to the Texas Board of Pardons and Paroles. (Click here to see the text.) As I said above, it wasn’t answered, but I did get an answer to a similar letter to Governor George W. Bush. (Click here to see the text.)

Another quotation from Dow’s book explains my experience with these communications (pp. 219-220): “Our death-penalty regime depends for its functionality on moral cowardice. In Texas, the most gutless of all is the governor. If he wanted authority to decide for himself whether a convicted murderer should be spared, the legislature would give it to him in a heart-beat, but he doesn’t. He hides behind the jury, and behind the courts, and most of all, behind the Texas Board of Pardons and Paroles. The Board consists of seven feckless people who gave him a lot of money. The governor appoints them to six-year terms, and they do what they think he wants them to. If the Board recommends that an inmate be spared, the governor can go along with that recommendation or not, but if the Board votes against the inmate, then the governor’s hands are tied. Governors, like George W. Bush and Ann Richards, want the Board to turn the inmate down, and, through back channels, they let their cronies know that. Later, they stand outside the governor’s mansion and shrug their shoulders and say that the inmate received a fair trial, that it was reviewed by the courts, that his appeal for clemency was turned down by the Board, and that there is nothing they can do. Then they head off to dinner at the Four Seasons and talk about bearing the weight of permitting someone to die. Is there any phrase in the English lexicon more immoral than There was nothing I could do?”

If you and I repudiate the death penalty, there’s a benefit for us, as well as for the condemned. Condoning the death penalty requires us to sacrifice some of our humanity in order to willingly and systematically snuff out the life of another. It is contrary to our nature and hurts us in a lasting way. For one small example, see the article “Former Warden ‘Haunted’ by Executions: Death Penalty Scars Prison Staff, he says” (at this link).

As support for the death penalty slowly erodes in this country, an organization at the forefront of reform is the Death Penalty Information Center. If you’ve read this far, I strongly urge you to sample their work at www.deathpenaltyinfo.org.