The Death Penalty on Trial: A Meditation

In just shy of two weeks Americans will be going to the polls. What is at the front of everyone’s mind is the presidential election. Totally reasonable. But, there are other issues going to be decided. Among them in California there are two propositions being put to the electorate, one to streamline the process toward execution of someone convicted of a capital crime. And the other to ban the death penalty and to replace it with imprisonment for life without the possibility of parole.

This is an issue of considerable concern to me, as a citizen, as a human being. And, I hope whatever your view of the subject you’ll give this reflection on the subject some consideration.

Thank you.

A quarter of a century ago one of my first public actions as a newly minted Unitarian Universalist minister serving a church outside of Milwaukee, was to go on a local television show and debate the merits of the death penalty with a local state legislator. I didn’t precisely make a fool of myself. But, let’s just say I had a lot to learn about public witness, starting with losing the bow tie that made me look like a pointy headed intellectual, which whether I was or wasn’t, did nothing to enhance my position.

The issues around the death penalty have held my attention and heart from a long time before that televised debate. And, while my thinking has, as they say in political circles, evolved since then, they continue to smolder within me. When I left that first ministerial settlement we moved to Arizona, where the death penalty is very much a fact on the ground. For the five years I was there I participate in various demonstrations against it, but as a practical political matter, it was sufficiently popular that all I could offer was counter witness. From there Jan and I spent the balance of our working lives in New England where the death penalty is largely a matter of history (the exception being federal prosecutions), and generally thought to be something associated with the Middle Ages.

Today the death penalty is on the ballot here in California. (I’ll forgo the opportunity to rant about my feelings regarding the initiative system in this state, originally intended as a democratic reform but which has largely fallen into the hands of any special pleader with a couple of million dollars to spend…) Actually there are two propositions, one to abolish it, and another to streamline the process to get people to the executioner with fewer routes to challenge along the way to the needle.

So, we are in fact at a moment where a vote can decide whether we end this practice in the largest state in the union. And, so, for those who are not settled on the question, I want to share some statistics and then some arguments as to why I hope you’ll vote to end the death penalty.

First, a handful of statistics. I promise not to be over long here. Unfortunately, there are some memes out there that list a tiny number of countries, usually China, Iran, North Korea, and the United States as the only countries with the death penalty. Actually, this is not true.

Here are the real numbers. One hundred, and ninety-five countries belong to the United Nations or have observer status. Of these some fifty-six fully retain the death penalty. Six retain it but only under extremely rare circumstances, such as war crimes. Another thirty-one keep it on the books, but according to Amnesty International have not actually executed anyone in at least a decade and have set up mechanisms that make it functionally impossible. And the majority of countries, one hundred, and two have completely abolished it.

But there are other calculations to consider. I find these numbers even more important. According to Amnesty International in the year 2015 there were one thousand, six hundred and thirty legally sanctioned executions, which took place in twenty-five countries. Now, China actually hides its numbers, so this figure is in fact higher, how much higher is an unknown. The same is true of North Korea.

Nineteen of these countries that can be tracked are in Asia, five in Africa, and, well, us. This statistic for 2015 is troubling, as I see it, in how it doubles the number from the previous year, and is the highest number recorded in a quarter of a century. The vast majority of these recorded executions come from Iran, Pakistan, and Saudi Arabia – a full ninety percent of the total. Which is probably the source of the false meme. We, as Americans, accounted for twenty-five of those executions. By world terms, not the worst.

But, I feel, and strongly, we should not be anywhere on that list. What follows is my why. I offer a cluster of reasons, some “stronger” and others “weaker,” but all of them driving me relentlessly toward the view that the death penalty has no place in our culture.

One of my oldest views was that we don’t want to trust the state with decisions about taking the life of its citizens. For me that is more visceral, and I don’t think it in fact stands up all that closely to a real world situation, unless one is a libertarian or anarchist. And I am neither. I think the state needs to make some hard decisions. And, frankly, when I was involved in death penalty issues in Arizona, every single one of the people up for the death penalty were convicted of crimes that if they did them were execrable – acts so horrendous that if anything can push someone beyond the bounds of a person and deserving of being put to death, well, these were text book examples. In the interest of letting you sleep at night I will not detail some of the acts, which, just the words, just the words are etched into my memory with other nightmares. When talking about the death penalty in this country (not everywhere, not by a long shot) we are talking about horrendous crimes. That cannot be ignored.

And one can make a very good argument that the state acting in the best interests of the people at large should be able to execute some people. But. Way back when I was in that televised debate in Wisconsin my opponent declared that with the protections in place today, no innocent person is ever executed. And, then, of course, the Innocence Project started using DNA to examine standing convictions.

In 1989 they won the first DNA exoneration. Since then three hundred, forty-seven people convicted of murder have been exonerated. These are all people who had been convicted through eyewitness accounts, forensic analysis, confessions, and informants. Seventy percent of those false convictions were based on those eyewitness accounts. It turns out we have no idea how many innocent people have been convicted and executed. What we can be near certain is that innocent people have been and we have no reason not to believe are being executed.

The response to this is to have complex and multiply redundant appeals processes to any conviction. In the year 2010 it took approximately fifteen years for someone convicted of a crime to be executed. (Apparently with a result that nearly a quarter of deaths for those on death row are in fact from natural causes.) One of the two propositions on the ballot in California is to restrict the appeals process and require that it all come together within five years from conviction. For me, an astonishing response, to an attempt to prevent the worst miscarriage of justice that a state can inflict.

If this were it, I think that sufficient reason to end the death penalty. The problems, however, extend beyond that one issue. In practice race and poverty are major factors in convictions. If you are white and well to do, your chances of being executed are vastly less likely than if you are black and poor. Related to that in our adversarial criminal process it really is like that cartoon where the lawyer says to the client, “You have a great case. How much justice can you afford?”

Also, there is absolutely no evidence to support the contention that the death penalty is any kind of deterrent. In fact in this country states that do not have the death penalty have lower murder rates than those that do.

When we talk about “closure,” whatever its merits, having the necessary steps to minimize wrongful convictions necessitates putting off that closure for years, when a simple conviction and the sentence of life without parole not only brings an end to the process, it brings whatever satisfaction can be had for the victims and their loved ones that that person can no longer be a threat.

While there is a disturbing uptick in the number of executions world wide, it appears anomolous against the trend in the world to walk away from this practice, where the majority of countries have outlawed it entirely, and where today fewer than six countries account for nearly all executions. It is, to put it frankly, a barbaric practice that cannot be equitably prosecuted, the poor and minorities will always be executed more than those with resources and connections, and that inevitably includes the innocent.

I suspect each of us will consider different points the strong arguments and the weak. But, for me, and I hope for you, the inescapable conclusion is that we need to end the death penalty.

The death penalty is a moral outrage.

So, a strong appeal. If you are a Californian:

Please vote yes on proposition 62, which repeals the death penalty, and replaces the maximum penalty with imprisonment for life without the possibility of parole.

And, please vote no on proposition 66, which sharply curtails the process by which a person convicted can appeal that conviction.

Again, thank you.

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