By Isaac
 

"Mere factual innocence is no reason not to carry out a death sentence properly reached." --U.S. Supreme Court Justice Antonin Scalia
Herrera v. Collins 506 US 390 1993
 

Someone who had heard about the Supreme Court's last two decisions about the death penalty might think we had a new Supreme Court..

A few weeks ago, they said we can't execute mentally retarded people, and then that jury had to decide whether someone should be executed, not a judge. At least the first one should just be common sense, but some states and the federal government had said before this that it's perfectly fine to execute someone who probably didn't have it together enough to really know what they were doing at the time.

It should have been plain old common sense. But three Extreme Court 'justices' disagreed with the decision. If you've been paying attention, I don't need to name the three. (If you haven't been paying attention, it was Scalia, Thomas, and Rehnquist. Don't these guys like anything that doesn't hurt somebody else?).

We like killing people so much, European countries look at us as barbaric--they believe that a society's approach to killing people is an indicator of how civilized they are. In the last couple of decades, we've built more prisons than schools, worked overtime to fill those prisons, made more crimes punishable by death, and passed laws to limit the amount of time someone convicted has to go through the appeals process, in the name of "law and order" and being "tough on crime".

In the rush to halt the "breakdown of civil society", we went overboard to show how intolerant we are of people stepping over the line. The assault on the Constitution didn't begin with Ashcroft and the rest of Bush, Inc. We took a big step in that direction under Reagan, if not sooner, when we started to buy the idea that we are "coddling criminals" and being soft on crime when we paid attention to the Constitutional protections of the accused. Someone whose case is dismissed or overturned on legal grounds got off on a "technicality" or had a "slick lawyer."

Regular people and politicians get impatient when we don't just rustle up a posse and string 'em from the highest tree. Death row appeals were taking forever, and people weren't being executed until decades after their trials. People say it's too hard getting a criminal executed. But it's supposed to be hard. Our justice system was set up to make absolutely certain that we have the right person when we give them the ultimate "time out". We can go back and fix problems with the process that was used, but we can't give someone their life back. We're supposed to do everything we can to get it right the first time. There are no "do overs" when we execute the wrong person.

It's obvious now--we're not always convicting the right people. We rarely used to hear about innocent people on death row being cleared, but lately it's as common as Geedubya Bu$h saying "tax cuts". Even some conservative judges are starting to have doubts about the way we execute our convicted citizens. For decades, some argued against the death penalty, saying that we're killing more minority members of society than their numbers say there should be, but all that happened was a giant sucking sound of officials yawning--who cares if we're killing minorities? If we keep killing enough of them, they'll stay in the minority.

It's different now that we're talking about innocent people being executed. All of a sudden, now we can ask if the death penalty is cruel and usual punishment. We also need to talk about how so many innocent people end up on death row. I'm not going to go over things like mistaken eyewitnesses, racism, or false testimony from jailhouse snitches for more lenient sentences. There are plenty of places on the internet that do more justice to that than I can here. An excellent book about problems with the death penalty is Actual Innocence by Barry Scheck, Peter Neufeld, and Jim Dwyer.

We're starting to look around and wonder if killing innocent people maybe is "cruel and unusual punishment" after all.

The problem is, we can't fix the problem without looking at the whole criminal "justice" system.

It works kind of like this: Ambitious law students pass the bar, and some join the staffs of  state prosecutors, or the attorney general's office, which are political as much as legal. Typically, the heads of these offices are elected, and that's where the fun begins.

When someone is on trial, the case is filed as "The People vs. Joe Blow." 'The people' means all the citizens in that in that state--against one individual. 'The people' have all the financial resources of that state or the federal government, and the prosecutor's staff and his/her resources.

Joe Blow has whatever is in his bank account, and probably a court appointed defense attorney--a public defender making minimum wage..

The state can take all the time it needs to build or fabricate a case against Joe Blow--it can take months or years. Public defenders have to juggle dozens of cases at once, and often don't even actually meet and talk to Joe Blow until just before the trial. Often they aren't the best of attorneys, at least judging by the number of reports of them sleeping through the trial, or showing up drunk. Think of the reports out of Bush's Texas a little while ago about inept defense attorneys representing people who had gone on to be convicted while they were actually innocent.

Prosecutors make points by getting convictions. When they run for higher offices, the number of convictions they won is their report card. A prosecutor without convictions is considered to be somebody who couldn't get the job done, so the meaner the better. Some attorney generals even can get reputations outside of their own state, like Jim Mattox of Texas. In Texas, where everything is bigger, Mattox got a reputation as a real bastard that was known outside of Texas.

And we want prosecutors to be real bastards, especially in high profile cases. The media covers the real serious crimes 24-7, prosecutors hold press conferences, the public wants blood, and the only thing that will do is to bring somebody in. Problem is, we don't always get the right person, but we don't ask at the time whether we did. There's too much pressure for someone to fry. Sometimes prosecutors suppress evidence, police lie or plant evidence, witnesses get confused, you name it, and it goes wrong. Now it's not just a legal matter, but a political one, and people will play politics with other people's lives.

Lots of prosecutors go on to run for Congress. Lawyers are probably the most represented profession in Congress, and mostly prosecutors. And they bring that prosecutorial attitude with them. Remember those warm, fuzzy, members of the House Judiciary Committee that brought the case for impeaching Clinton to the Senate? Remember what a fun bunch those guys were? They were all prosecutors before they were elected to Congress, and they all have the attitude I'm talking about. (I don't think it's necessary to be an attorney to be on the Judiciary Committee. Mary Bono was on it too, with her giant intellect and a degree in art history). All 13 of the House "managers" volunteered to take the case to the Senate.

We hear all the time that we have the best justice system in the world, and that may be so, but why should we settle for what we have if we can do better? There's lots of holes in the system we have, there's still a lot that's wrong.

For example, it's illegal to be poor in this country. If you don't think so, try being poor and being on the wrong end of a criminal accusation, especially one that earns the death penalty. We still have a system where justice is for sale, and lots of people who can't pay for a great attorney up front pay through the nose eventually. How many Kennedys or Rockefellers (or Bushes or Cheneys or Lays) are in prison, let alone on death row?

For all the noise we make about how much we value life and liberty, and truth, and justice, we're all talk. Go back and read the quote from Scalia. What he said is that even if someone can prove that he or she is innocent after they've been convicted, well, that's just hard cheese. When Bush was still playing governor of Texas, he said he was satisfied that everybody on death row was guilty--that they'd had full access to the courts. Never mind that lots of those people had attorneys who were drunk in court or had slept through the trials, or let the prosecution pull all kinds of garbage without raising objections; the accused had his day in court, so tough noogies. When did process get to be more important than making sure we are doing the right thing?

We live in scary times, and we can't afford to be innocent and naive any more. In the last 20-odd years, as I said earlier, we've built more prisons than schools. We've made more and more crimes federal crimes punishable by the death penalty. We've cut down on the length of time people who are convicted have to appeal. We've made it easier rush people to their final reward. And it's gotten even worse after September 11, 2001. Now we're saying it's just peachy if we give up more and more rights so we can be secure. Things were at least usually done in the light of day before; now, we say it's cool if it happens behind closed doors, if that's what it takes. I personally haven't heard one justification that convinces me that we really are more secure.

"Innocent until proven guilty" went the way of lime green polyester leisure suits these last couple of decades. If this is the land of the free, why do we have a legal system that stacks the deck against a suspect from the very beginning? We make it as hard as possible for a suspect to prove his/her innocence--we don't fund their defense to any large degree, we put all our energy into keeping them locked up and hamstrung, and some of those people are innocent. If freedom and justice really are our ideals, we would be giving everyone accused every chance to prove their innocence.

The death penalty issue has been argued for a long, long time, and by people a lot brighter than I am. But I do believe that any examination of the process needs to look at how political the process is.

To me, the best thing we could do is get better at the "shoe on the other foot" test. How many of us who are really down on crime want someone they are related to or care about executed as soon as possible for convenience? How many of us would want that if we were on death row ourselves? If you wouldn't want that for yourself, why should it be different for me?

Lots of people in George W. Bush and John Ashcroft's America may get their chance to find out how they really feel about the death penalty, when they get to look at it up close and personal.

isaac
I report. I decide.

*Sorry, Paul McCartney