November 2011

Time to kill the death penalty?

By Katharhynn Heidelberg

The government cannot run a post office, rein in Wall Street predators, figure out a sensible immigration policy, end wars, or even agree how to keep itself funded. Were your neighbor this incompetent, you wouldn’t trust him to cross the street. Why, then, trust government with our lives?

But that is what we do when it comes to the death penalty: We trust the state to make the right call. Coloradans for Alternatives to the Death Penalty is asking why.

During the time I’ve been alive — 38 years — at least 138 death-row inmates have been released after evidence exonerated them, CADP says. That’s people, not statistics, and among them is Juan Robert Melendez-Colon. He spent 17 years on Florida’s death row before being released in 2002. As documented in the film “Juan Melendez 6446,” his innocence was revealed when a key piece of evidence — the real killer’s confession — was allowed to see the light of day.

There’s also Colorado’s own Timothy Masters, wrongfully convicted of the murder of Peggy Hettrick. And just months ago, the “West Memphis Three” (Damien Echols, Jesse Misskelley and Jason Baldwin) were freed after 18 years in prison. They were convicted in the mutilation slayings of Stevie Branch, Christopher Byers and Michael Moore. Echols was sentenced to death; the other two, to life in prison.

Despite glaring proof problems — no DNA at the scene from the three, and a false confession reportedly improperly considered by the jury even though it was barred at trial — Arkansas prosecutors were going to retry the case after the men at last prevailed on appeal. The suspects halted a new trial when they tendered Alford pleas to murder in exchange for being released for “time served” and probation. Misskelley and Baldwin said they only agreed in order to save Echols, who again faced the death penalty.

Echols got a second chance. Troy Davis did not.

Georgia killed Davis in September, despite worldwide outcry that his conviction in the murder of Officer Mark McPhail was flawed. Seven of nine witnesses against Davis recanted; he proclaimed his innocence to the end.

I hope for the sake of humanity that the state of Georgia was right, because if not, the state “resolved” one man’s murder with another’s. We all deserve more surety than a finger-cross.

Call the debate “eye for an eye” vs. “two wrongs don’t make a right.”

Politicians love “eye for an eye” talk. “I’ve never known a convicted killer who was executed who got up and killed again,” blared one, whose name I have forgotten, from a TV screen many years ago. Other politicians have argued that if you take capital punishment off the table and go with life imprisonment, the convicted are an escape risk and a danger to guards — they know they can’t die for killing anyone.

But this line of reason argues against the death penalty as much as it does for it: A person condemned has no reason to toe the line, either. To paraphrase a Harrison Ford character: What are you going to do? Execute them twice?

That’s not to say there aren’t cases where the death penalty seems appropriate, or even the only appropriate sanction. Osama bin Laden got better than what he deserved. Ted Bundy, whose guilt is not in question by any sane person, deserved to die. And it seems that Derrick O’Neal Mason, executed last month in Alabama for the vicious slaying of store clerk Angela Cagle, also got what was coming to him. He forced her to strip, then coldly shot her in the face.

Then again … Barring the likes of Bundy, and bin Laden, who was an enemy of the state and a legitimate target in a war he started himself, what objective way is there to define what is heinous enough that a fellow human being forfeits his or her right to live?

CADP correctly notes that the death penalty is arbitrary: “Human beings have differing opinions on what counts as ‘the worst of the worst’ — making it impossible to create a human system that is objective and consistent in selecting people for death.”

Example? See my reasoning, above: “Well, most of the time, the death penalty is probably wrong, but some of the time, it’s acceptable, as long as we’re talking Bundy!” You may find that reasonable, agree, or disagree. But that it’s arbitrary cannot be disputed.

There is probably a general (though arbitrary!) consensus. But there will never be absolute agreement, any more than absolute certainty. At the time the West Memphis Three were convicted, it seemed pretty certain they had mutilated three 8-year-olds. A little state-sponsored homicide seemed too good for them.

Oops.

Recall Derrick Mason. The judge who presided at his sentencing pleaded this year with Alabama’s governor to spare his life, saying it “really was not the right decision” when he sentenced Mason to die. This is the judge who heard every lurid detail of a woman’s death. And he’s not sure of the penalty he himself imposed on her killer.

Charles Manson, the mastermind behind infamous 1960s cult-slayings in California is alive in prison (due to a Supreme Court decision that temporarily halted capital punishment in California), while people deemed to have committed “lesser” offenses have been executed. And defining “lesser” is as problematic as defining “heinous.” No matter how mundane a murder motive, how low or how high the victim count, someone is dead. One victim is not “lesser” than another.

Not even victims’ families can agree on the death penalty. McPhail’s family supported executing Davis. But then there’s the son of James Byrd. Byrd was dragged to death by racists in Texas, a crime that shocked even the conscience of other racists. Byrd’s son said he opposed executing the killers.

It seems the best a civilized society can do is err on the side of caution. We lose nothing by keeping killers locked up. When we execute the innocent — or put ourselves in a position of doubt and proceed anyway — we lose our soul.

Katharhynn Heidelberg is a journalist in Montrose, Colo.