Guilty?

By Thorvald Hansen

It is better that ten guilty persons escape
than one innocent suffer.
Sir William Blackstone, 1723-1780

A short time ago I completed reading The Innocent Man, by John Grisham. Grisham is a former lawyer who has written many novels including such titles as The Firm, The Client, The Last Juror and some 15 others. The Innocent Man, is his first venture in the field of non-fiction.

Grisham became interested in the case when he read the headline of an obituary in the New York Times which said, "Ron Williamson, Freed from Death Row, Dies at 51." Grisham began to look into the matter and eventually spent 18 months on the subject with the book being the result.

I had given some thought to reviewing the book, but upon further consideration I decided, in the light of my long-time opposition to the death penalty, to look into the subject of capital punishment and to see where it would lead. This I have now done, and limited as my access to resources on the subject may be, the testimony of those sources available to me is overwhelmingly against the death penalty. Yet I know very well that it is more than likely that a majority of the electorate is in favor of what may best be called legal murder. The demand for justice very often becomes a cry for the death penalty.

Most civilized and democratic nations have moved beyond the death penalty and deal with criminals in other and less drastic ways. Meanwhile, the United States, in its search for justice, continues to find itself in the company of the barbaric and uncivilized peoples of the world. Thirty-eight states as well as the Federal government and the military, cling to the death sentence. That capita punishment cannot be squared with civil rights seems never to occur to death penalty enthusiasts. Even more serious is the fact that many of the right-wing born again group would claim Christian support for the death penalty. One can only conclude that while they may have some notions about the Bible, they know precious little about the Christian faith. It is true enough that the Old Testament speaks of an eye for an eye, but Jesus, from whom we have Christianity, had quite a different view. He was not at all in favor of the emotional eye- for-eye concept of justice. Rather, he favored approaching the situation with love and understanding. This view is reflected in The Merchant of Venice, in which Shakespeare has Portia, the judge, say to Shylock, who continues to demand justice in the form of a pound of flesh: "Though justice be thy plea, consider this, that in the course of justice, none of us should see salvation."

The death penalty, which is seen as justice by the proponents of capital punishment, does have one redeeming feature. When a criminal has been put to death he can never again bring harm to another, whether within the prison, or should he escape, anywhere else.

The arguments against capital punishment are manifold. Probably the foremost argument against it is that is final and not subject to correction. Mistakes have been and will continue to be made. Sloppy police investigations, public pressure, junk science, jailhouse testimonies, prosecutors with an eye on a higher political office, highly emotional jurors, and poor defense lawyers all contribute to a fatal error. That errors occur time and time again is attested by fact that in a recent 30 year period 124 condemned inmates have by new evidence been set free. These are the fortunate ones; others have gone to their graves knowing that they were not guilty.

Another reason often cited in favor of the death penalty is that it acts as a deterrent. This argument might have some weight if most murders were premeditated and carefully planned. This is not the case. Most murders result from a spur of the moment reaction to a specific situation. In this connection it should be noted that many murders grow out of violent family life. Sociologists and criminologists, as well as judges and prosecutors, have long known that the death penalty is not a deterrent to murder, yet the latter often ignore this fact. Should there be a need for further evidence against capital punishment it can be seen in the fact some states, and notably Texas, which are zealous in the use of the death penalty, also have the highest percentage of murders compared to their population.

Those who sit on death row in the various prisons in America do by no means represent a cross section of society. In theory capital punishment is legal for all segments of society. Actually, it is not! The indigent, Blacks, Hispanics, and those of a lower class are principal occupants of death row. Seldom does one see an affluent white in such a situation. In effect, the death penalty is selective.

It is often argued that the death penalty is cheaper than a lengthy incarceration. Quite apart from the morality of valuing human life on a cost-effective basis, is the fact that the death penalty is very costly. Mandatory appeals are required in all capital cases, and such appeals are very costly. There are delays for all sorts of reasons and capital cases require an inordinate amount of time. Ron Williamson, for example, was on death row for some 12 years.

The question naturally arises as to whether or not the death penalty, per se, represents "cruel and unusual punishment." Such punishment is outlawed by the Constitution. The Supreme Court, in the 1972 case of Furman v. Georgia, did in fact rule by a five to four decision that the death penalty was in itself a violation of the Eighth Amendment and, therefore unconstitutional. This brought to an end the many executions scheduled by the states and the Federal government. However, that end soon proved to be only a moratorium. In the case of Gregg v. Georgia, accompanied by cases from Florida and Texas, the Court by a vote of seven to two, reversed itself and declared that capital punishment was not unconstitutional. Thus, after a four year hiatus, states could once again resume executions. Since then cases involving the death penalty have come before the Court, but, by and large, they have involved tinkering around the edges of the death penalty as it relates to the Eighth Amendment. Generally such cases have concerned the method of execution. The most favored method today is the injection of a fluid that causes death, a method recently declared legal. Electrocution has gone out of favor. Two states present hanging as an optional method and two others present the option of a firing squad.

Certainly criminals must be dealt with. We cannot allow murders to get by with a slap on the wrist. But we cannot subject them to cruel and unusual punishments. A life sentence, without parole should be the ultimate sentence. Sooner or later the Court will have to overturn Gregg v. Georgia and declare the death penalty, as such, cruel and unusual punishment and is therefore unconstitutional.