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State's first execution in a decade: Asking a question

There is little doubt about the guilt of the eight people currently on death row, but what should we think about a penalty that is irrevocable when a mistake is later discovered?
A guard tower at the Washington State Penitentiary

A guard tower at the Washington State Penitentiary Courtesy of state Department of Corrections

Our state is just over two weeks away from the scheduled execution of a man who kidnapped a 22-year-old woman, raped and tortured her for two days, then stabbed and strangled her and hid her body in the trunk of his car. It will be the first execution in a decade; it presents an occasion to reflect once again on the death penalty — a practice that is in decline in all but a few states across the nation.

Hopefully, one can offer some commentary on this topic without having to endure the self-righteous rants of bloggers who only want to denounce the condemned man as an animal and a monster — thoroughly deserving of his fate — and to wish something worse could be imposed on him. The reflections in this column are not about him but about one feature of the prolonged process we call the administration of justice that many are coming to consider as criminal as the acts of many of those who pay its penalty.

The problem is simply this: Far too many people are arrested, tried, convicted, sentenced and in some cases condemned to death for crimes they did not commit. This is not the case in next month's execution; the condemned man has admitted his guilt. But cases in which innocent people are executed come to light with appalling regularity. They demand that we look at the entire process we put people through who are accused of committing crimes and try to insure that the innocent are sorted out from the guilty in a more accurate manner than that we now use.

As one of the more recent examples of this latter problem, the state of Texas has just released a man who has spent the past 27 years in prison for a rape that prosecutors admit he did not commit. Several aspects of his case are of interest. First, he was convicted on the basis of testimony by the victim who identified him in a police lineup.

Eyewitness testimony is increasingly considered by criminal justice specialists as frightfully unreliable; several states have passed laws changing the way in which lineups are conducted in order to reduce the possibility of error. Not surprisingly, Texas is not one of them.

Second, the falsely imprisoned man was exonerated by DNA tests that not only cleared him but identified the actual culprits in the crime. Here again, in the state of Texas — that paragon of rectitude in criminal justice proceedings — 40 people have been exonerated based on DNA evidence in cases in which eyewitness testimony played a crucial role.

Third, the trial and conviction in this case took place in Harris County, Texas. Harris County holds the distinction of being "the death penalty capital of the democratic world." It is responsible for nearly 10 percent of the executions in the United States that have been carried out since 1976. Of the 450 executions in the state of Texas since that year, Harris County has 112 to its credit.

Happily, since 2008, Harris County has had a new district attorney — a former police officer and judge — one of whose first acts on taking office was to reverse the office's historic refusal to admit past mistakes. She has also pressed for a new forensics lab to replace one that has a notorious reputation for botching hundreds of cases.

Harris County is far from the only offender when it comes to capital cases. Since 1973, according to Amnesty International, over 130 people have been released from death rows throughout the country "due to evidence of their wrongful convictions." It leaves us with one simple question to consider: Is it worth risking the life of an innocent person to persist in such an unreliable practice as the death penalty just to get rid of the "animals" and "monsters" in our midst?

The state of Washington has eight people on death row. There is little doubt about the guilt of any of them. But that does not preclude the possibility that at some time in the future, someone may be facing execution in Washington whose guilt is in question or uncertain. Surely, a decent people would wish some other alternative to carrying out a punishment as irretrievable as is the sentence of death.

Hubert G. Locke is Dean Emeritus of the Evans School of Public Affairs at the University of Washington and former Vice Provost for Academic Affairs. Until recently, he was a regular columnist for The Seattle Post-Intelligencer.


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Comments:

Posted Tue, Aug 24, 8:38 a.m. Inappropriate

A thoughtful reflection, Hubert. We do need to rethink our practice. If we had a "perfect" human justice system the issue would be much easier. Your illustrations are compelling evidence. The question, "Does eye-for-an-eye" create a just response? Maybe our decision to take a life is evidence of somethings deeper: anger, racism, retribution, or even playing God? This is worth some serious thought and discussion!

marveck

Posted Tue, Aug 24, 11:23 a.m. Inappropriate

Marveck raises some great questions.

For me, the well-documented problems in our troubled justice system leave me with zero enthusiasm for the death penalty. The possibility that the state might kill an innocent person in our names is the most serious matter which, in my mind, can leave no room for error.

I also wonder how the administration of the death penalty affects those who have to handle the execution. How many of us would be willing to be the executioner in an imperfect system?

jsperry

Posted Tue, Aug 24, 12:48 p.m. Inappropriate

Dr. Locke, as usual, makes an elegant and compassionate argument against executing state prisoners. Here's another argument:

In this state we, citizens united, with deliberate intent and much forethought and ritual - kill some of the people who - with deliberate intent and forethought - killed one or more other people.

The major difference distinguishing the two acts is a form of due process. That's a vital but still veil-thin distinction. To the wrongly convicted and the executed, it's a distinction without much of a difference. They both still end up dead.

We've figured out how to keep killers locked safely away from society and even other lawbreakers. And we're pretty sure that state executions don't deter the kinds of crimes for which we execute folk. So it's hard to justify executions as a form of societal self-defense.

Viewed from that perspective, state executions become nothing more than "An eye for an eye" form of justice.

So if we don't need to execute people in self-defense, maybe it's time to rethink whether a veil-thin distinction between the people united and the people we're executing is enough for a civilized society. Especially when, as Dr. Locke described, that distinction can lead to the death of innocent people.

Posted Tue, Aug 24, 5:31 p.m. Inappropriate

I can't help but feel that Dr. Locke missed a chance to craft a much more powerful article.

This article starts by summarizing a horrific crime for which the death penalty has been imposed. Dr. Locke conceeds that the person subject to execution is guilty and makes no claims about lack of due process. Dr. Locke then implicitly recognizes that the death penalty is not used a great deal in Washington (eight on death row) and that there is no real doubt about the innocence of anyone currently on death row.

While I may not be a huge supporter of the death penalty, this hardly seems like compelling stuff.

For me, the crux of the article should have been this passage: "The problem is simply this: Far too many people are arrested, tried, convicted, sentenced and in some cases condemned to death for crimes they did not commit."

At that point, the article could instead have focused on the issue of innocent people being convicted (and potential solutions to that problem). To his credit, Dr. Locke does point out the problem but his proposed solution, elimination of the death penalty, falls short.

While the death penalty is certainly "irretrievable", it is worth noting that the state cannot provide any meaningful compensation to an innocent person incarcerated for 20 plus years. Any meaningful solution to all of these problems must happen much earlier in the administration of justice process...

Posted Wed, Aug 25, 11:48 a.m. Inappropriate

Since everyone dies someday, those who have seriously violated the law and deserve death should die sooner rather than later.

The death penalty has certain positives, first being that there is no recidivating. Second, justice is served.

There are, occasionally, innocents put to death. However, innocents die daily. Our world (planet and society) is a very violent place and literally tens of thousands die daily; many innocent, not all naturally. The death penalty offers a modicum of control over particularly violent individuals who threaten social stability. Personally, I have little problem with an occasional error rather than allowing hundreds a pass.

If the death penalty were applied quickly and surely, it would be a deterrent to many violent people. But the leniency and the lengthy delays offer little reason not to kill. The “cruel and unusual punishment” argument is disingenuous. Surely, the murder was cruel and unusual to the victim so why coddle the murder?

I say, get on with it. Put the lot to death sooner rather than later.

Sagacious

Posted Wed, Aug 25, 3:33 p.m. Inappropriate

Sagacious, I wonder how you would feel if you, someone in your family, or one of your friends happened to be that "occasional error."

I am with Abraham, Maimonides, Fortescue, Mather, Franklin, and Blackstone on this one. http://en.wikipedia.org/wiki/Blackstone's_formulation

By your logic, if we are to accept the innocent being executed, we should even more accept the innocent being imprisoned. There goes the presumption of innocence, one of the foundations of our legal system. Your "cruel and unusual punishment" argument goes a long way to tossing out the rest of it.

The one good thing about the death penalty is the 0% recidivism rate. That's about it.

Posted Thu, Aug 26, 4:41 p.m. Inappropriate

There is only one reason that stands up for the use of the death penalty. That would be vengance and the state cannot justify that only the ones who have been wronged.
The raasons against are many. It costs millions to administer trails and appeals. It is irrevoable and while we are all mortal, it is still murder by the state.
Finally, if I am for the death penalty I should be willing to shoot the person myself. Since I cannot do that, I cannot support the peanalty.

Morro

Morro

Posted Sat, Aug 28, 11:07 a.m. Inappropriate

In the few cases of wrongful convictions for crimes that I have read about the responsibility has usually been attributed to over zealous police who ignored evidence and/or aggressive prosecutors more interested in getting a conviction than seeing justice is served. Rather than argue against the death penalty, especially in instances where there is little or absolutely no doubt as to guilt, I would have preferred Dr. Locke to address the need to reform and hold accountable police, prosecutors, and judges whose errors were not "innocent" mistakes but conscious acts of negligence. I suspect if limits were placed on legal impunity enjoyed by those responsible for the administration of justice there would be many fewer instances of wrongful convictions.

That said, the cost of life imprisonment (variously estimated at $50,000 to 75,000 per year for 20, 30 or even 40 years) must be weighed against the many other more valuable needs of society: health care, education, etc.

From purely a philosophical perspective, it is naive to assume that we as a society don't make life and death decisions everyday when, for example, health care is denied because of cost. I suspect most people oppose the death penalty even for the most evil crimes because it is an explicit act. While we avoid taking responsibility and accountability for actions that we make as a society that have the same effect (death) on hundreds, if not thousands of others who have done no wrong.

SteveC

Posted Mon, Aug 30, 10:01 a.m. Inappropriate

It is an explicit and affirmative act, and many are not willing to cross that line. I suppose it is the same for medical professionals who will give a dying patient much more morphine than, strictly speaking, is necessary, but will refuse to administer a lethal dose of a substance with the express intent of ending that patient's life.

As far as philosophy goes, I suppose the trolley problem, and related thought experiments, are applicable here.
http://en.wikipedia.org/wiki/Trolley_problem

Posted Tue, Sep 7, 12:51 p.m. Inappropriate

Looks like Rob McKenna is personally against it, or at least not affirmatively for it, though as long as the people of the state want him to, he will professionally support it.

http://www.mynw.com/category/local_news_articles/20100907/As-state-prepares-for-execution,-AG-McKenna-not-sure-if-ultimate-penalty's-worth-it/

(or http://goo.gl/Lqgz for short)

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