woody_zimmerman_118_2007“The problem with Death is that it’s so final…”

I read that somewhere... Actually, I think I wrote it – although I’m surely not the first to make the observation. Death – “natural or otherwise” (as the gangster Hyman Roth put it, in Godfather II) – has been at the absolute center of the Human Condition for as long as people have lived on the earth.

Whole libraries of books have been written on this topic, so I won’t try to add to all that wisdom. But I do want to discuss death officially administered by the State. Capital punishment has been practiced as long as societies of people have exercised power over individual conduct. Well within my own lifetime, capital punishment was relatively uncontroversial in the USA. An execution might be mentioned in the morning papers, but it was usually not big news unless the case was sensational in some way. The execution of the Rosenbergs – the Soviet spies who stole the atomic bomb secrets in the early 1950s – was sensational, as it was a notorious spy case. Also, it was unusual for a woman to be executed.

In my boyhood, older people were still buzzing about the Leopold-Leob case of 1924, in which two wealthy and brilliant university students, Nathan Leopold, Jr., and Richard Allen Leob, tried to commit a perfect crime by murdering Bobby Franks, age 14. They were discovered, however, and convicted of first degree murder. Ordinarily, they would have been sentenced to death, since the senseless killing was entirely premeditated and there were no mitigating factors. But the killers’ families retained famous defense lawyer Clarence Darrow, who set a precedent for the future by putting the American criminal justice system on trial for being “retributive” and motivated by vengeance. (“Decent people” evidently didn’t seek retribution for vile crimes like the Franks murder.) Darrow succeeded in saving the pair from the electric chair. Instead, they were sentenced to life imprisonment “without possibility of parole.” The country was shocked over the lenient verdict, and we were on our way to the non-retribution era.

Leob was killed in prison by another prisoner, in 1936, but Leopold continued to serve his sentence. A “genius,” with an IQ exceeding 200, he studied medicine in prison and participated in a medical study in which he was voluntarily infected with malaria. In 1958 he was paroled to serve as a doctor in Puerto Rico, which he did until his death in 1971. Of course, his release contravened the original sentence, which had stipulated “no parole.”

The Leopold case demonstrated the unreliability of no-parole sentences, where a prisoner might outlive the societal outrage over his crime. By 1958, Bobby Franks was long-forgotten in his grave, and no one was left to argue for justice for his senseless and outrageous murder. In the nifty 50s, we were well into the enlightened age. Retribution was completely out of fashion – although not uniformly so. There was no audible protest when the notorious Nazi, Adolph Eichmann – architect and head honcho of the Final Solution – was kidnapped in Argentina by Israeli agents, taken to to Israel, and charged with crimes against humanity. He was tried, found guilty, and ultimately hanged in 1962. Evidently, neo-enlightenment had its limits.

Certainly it is possible to err in a judicial proceeding that produces a capital sentence for someone accused of a terrible crime. Can we be 100% certain that the person convicted is truly guilty? No, few things in this life can be that certain. If they had to be, generally, we should not have cars, complex electronic devices and machines, medical drugs, and a host of other accoutrements of our civilization. (Even mousetraps do not work with 100% reliability.)

Our judicial system has an ancient pedigree. It contains certain provisions, like the requirement of unimpeachable evidence, that uninformed people might consider arcane and unnecessary. But those provisions protect the accused from hearsay, unsupported innuendo, and a rush to judgment fueled by public emotion. When the process is allowed to function as designed, it comes as close as one can probably hope to a correct verdict.

Nevertheless, mistakes can be (and have been) made – whether because of technical limitations, inattention, stupidity, incompetence, or outright corruption. Juries can be misled or confused; prosecutors and defense attorneys can make mistakes; so can judges. There are many working parts in a murder trial, and any can fail. Generally, the process can withstand a few malfunctions and still produce a correct result – but not many. Some errors are more significant than others.

As forensic science and investigative methods have become more sophisticated, errors in past cases have sometimes come to light. Over the years, these disclosures of verdict-reversing DNA evidence, etc., have accumulated in the public mind, enough to degrade confidence in the judicial process – particularly in capital murder cases. This came to a head in 1972, when public revulsion over a “flawed” system produced a Supreme Court ruling which stopped executions in all 50 states and U. S. territories.

The Court lifted its ban in 1976, subject to states’ redrafting their capital punishment laws. Since that later ruling, thirty-seven states have passed new laws authorizing capital punishment. The other states do not permit it; Hawaii and Alaska have never allowed it. The USA is the only country in the western world which still permits capital punishment.

Although capital punishment has a new lease on life (so to speak), it remains controversial, even in states that have re-authorized it. A recent capital murder case in Georgia has reminded us that the public mind is not settled on this extreme punishment. Troy Davis, 42, was executed by lethal injection, after all appeals had been exhausted. He had been convicted of murdering a Savannah police officer in 1989. The case became a cause célèbre for the death-penalty opposition because some witnesses were said to have recanted their original testimonies, putting the correctness of the verdict in doubt. Davis stoutly insisted on his innocence, even at the moment of his death, when he faced the family of murdered Officer MacPhail and told them that he did not kill their “son, father and brother.”

I have no idea whether Troy Davis was innocent of the crime he died for. It's beyond my competence to judge. But I have no problem with a sentence of death for the taking of an innocent life. It is rooted in civilizations that go back thousands of years. It is supported by the Bible, too, in case that counts for anything in today’s societal discourse.

Nevertheless, you don’t have to be very far-left to see that there are certain problems with the way we apply capital punishment. One of those problems is time. The Davis execution was finally carried out 22 years after his crime. Anti-CP partisans say this provides plenty of time to uncover potentially exonerating evidence before the sentence is carried out. That is true, but it also allows for minds of witnesses to become fuzzy, or for those witnesses to die. This "erosion" of the prosecution's case produces a kind of rump re-trial in the media, where evidence can be cherry-picked (or glossed over), and judicial rules can be ignored. If the death-row convict happens to be a racial minority, civil rights activists can convert his case into a “rights” issue. All of this happened in the Davis case, confusing things even more.

A considerable crowd of protestors held a midnight vigil outside the prison in Jackson, Georgia, where Davis was executed. They held candles, sang and wept as the fatal drug was administered. But I have read no accounts of similar demonstrations to mark the tragedy of the foreshortened life of Officer MacPhail. He is long forgotten by people who were children, or not even born, when he senselessly died at the hands of his pitiless killers. This is also a result of the long space between crime and sentence. The public outrage is forgotten. Only a few older people can even recall the horror of the wretched deed that took an innocent man’s life. It becomes easier to concentrate on the murderer’s life being taken by the state, and the tragedy that represents to his family. There is a reason why the Constitution stipulates that justice needs to be “swift.” Letting so much time elapse, in this way, perverts that justice.

Another significant problem in capital-crime justice is “selective application.” Increasingly, capital sentences are pronounced only for “heinous” crimes. The dictionary defines “heinous” as “hatefully or shockingly evil.” It’s probably a good definition, but where is that found in our legal code? I know of no legal definition, nor of any stipulation localizing the death penalty to crimes of this uncertain description.

The fact is that prosecutors and judges have unilaterally decided on this new standard for application of capital sentences. “Heinous” is in the eye of the beholder, and can be applied subjectively. As it appears to this observer, heinous crimes are, by definition, murders in which the victim is: a child, a mother of young children, a beautiful (usually white) young woman, a gay person, a policeman, a congressman, or some other government official. Multiple murders are also considered heinous, although there can be exceptions to this rule when the crime appears to be politically motivated. But if the victim was a shopkeeper, a middle-aged businessman, a truck-driver, a minister, a homeless person, etc., it is very unlikely that a capital sentence will be pronounced.

I recall an episode in the old Untouchables TV series, starring Robert Stack as Eliot Ness, in which a gangster was hot for the wife of a dry-cleaning shop owner. When she refused him, he sewed blasting caps into a pair of pants and took them to the shop for hot-pressing. The pressing machine set off the caps and killed the owner. On apprehending the killer, Ness said, “You’ll get the Chair for this…”

Things were like that well into my lifetime. Killing a mere shopkeeper – or anyone – could get the killer a date with the Chair or the gas chamber. But the times have a-changed. If you’re not on the A-list of victims, your killer will be watching Days of Our Lives and General Hospital long after you’re in the ground. I’m not the only person in the country who sees this entire construct as a problem. We need a reformation of the “system” we have now. Either every innocent human life has value, or none does. And justice needs to be swift.