Twenty years ago, I was a fairly hard core death penalty proponent. I never could muster up much respect for the life of someone who had themselves shown so little respect for life in committing the heinous crimes that incur the death penalty.
Over the years, I have not gained any additional respect for a killer's right to life, but I have had growing doubts about our ability to mete out this penalty fairly. To some extent this is based on the accusations that certain groups are more likely to get the death penalty than other groups. For example, its fairly clear that men committing heinous crimes are more likely to get the death penalty than women. I am also mostly willing to accept the notion that blacks are more likely to get the death penalty for the same crime as whites -- I hesitate to fully embrace this conclusion only because the people making this case are the same people who play the race card on everything, from OJ's guilt to fan reaction to Sammy Sosa's corked bat, so it has an element of the boy crying wolf.
However, discrimination is not the main reason I no longer support the death penalty for anything but the most extreme cases (there is still a need for an ultimate penalty in certain cases - without it, people who have already earned life in prison might see nothing to lose in killing a policeman or prison guard). I have come to believe that the death penalty impairs a person's right to appeal.
Now, certainly people sentenced to the death penalty get many layers of appeal. However, while these appeals may cover many years, at some point the convicted person is put to death, and any further appeals or introduction of new evidence is no longer possible. A multi-decade vindication process is not without precedent, for a number of reasons:
- Racial mores may have to change: How many black men were put to death unfairly in the south up through the 1960's? Yes, they got to have all their appeals, but their appeals all occurred in the same place and time-frame as their conviction. Only a generation later, long after many were dead, could a legal system run by a society with a different outlook on blacks look at some of these cases in a new light.
- Public hysteria may have to calm down: Though none that I know were sentenced to the death penalty, look at how many teachers and day care workers were convicted in the child molestation panics of the 1980's, only to be release decades later after the hysteria had passed, and in some cases after the original ego-driven prosecutors had retired. The Gerald Amirault case is a great example.
- Technology may have to change: A number of people who had exhausted nearly all their appeals prior to being put to death have been vindicated, sometimes many years after the fact, by new DNA testing technologies.
We all know that courts make mistakes, some of which take decades to fix. What if we never had a chance to change the flawed Plessy vs. Ferguson decision? Criminal cases are no different - mistakes and abuses happen. In most cases, these can be fixed, even decades after the fact. The wrongly accused, like Mr, Amirault, loses a piece of his life, but still has some left. Once put to death, though, the wrongs can't be fixed.
The reason I think about all this today is because of the Terri Schiavo case. I am at a loss as the the right thing to do is here, and am amazed that so many people on both sides are so certain they are right -- the facts in this case are just so messy. I am willing to accept that the court in Florida has done their job in plowing through all this mess and making the best decision they could under the law, and I am not about to advocate setting some really bad constitutional precedents just to second-guess them.
However, I am left with the same worry that I think many Americans are in cases like this. Courts do make mistakes, what if they are wrong here? After next week, there will be no more chances to appeal.