The SF Chronicle has a columnist named Debra Saunders who is pretty much a right-wing ideologue (I was going to say “nutcase,” but that’s impolite) . Her Sunday (9/22) column “Save the Death Penalty” was particularly factually incorrect, morally untenable and simplistic. I will expound on this because the subject is of particular interest to me — and besides I’m against killing human beings no matter who’s doing the killing.
In her defense of the indefensible Ms. Saunders cites the often-heard claim that removing the threat of execution will make it harder for prosecutors to get plea bargains. This may be so, but it is ethically corrupt. If a prosecutor thinks that a crime merits the death penalty, he should call for it, and if not, if he is willing to settle for a lesser sentence, he has no right to use the defendant’s life as a bargaining chip. Besides, if plea bargains must be used, I would think that the choice between lwop* and life with some glimmer of hope for parole would be a powerful inducement.
And what she leaves out is what I call the defendant’s dilemma: the horrible choice faced by a defendant who, although innocent, is facing a death penalty trial. If found guilty and the penalty phase goes against him, he will get the death penalty, and over a hundred men later found innocent have spent years on death row. So the impulse to take a deal is strong, even in the innocent. And it’s more likely that an innocent defendant will face this choice since prosecutors tend to try strong cases and offer deals in cases they’re afraid they might lose.
Ms. Saunders writes, “California prosecutors and California juries do not reach the death penalty lightly...death-row inmates represent less than 2 percent of those convicted for murder.” That in itself is an indictment of the death penalty — it falls seemingly at random on people whose crimes are no worse than those with lesser sentences, but which have attracted public attention or are being charged by a prosecutor who wants to be seen as “tough on crime.”
She uses the image of Richard Allen Davis, on death row for the horrific murder of 12-year-old Polly Klaas, as the club with which to beat the death penalty opponents, but it is a flawed and fallacious club. She says that Davis “will no longer be able to run his website.” Well, he has no website to run. As she says: “the Canadian Coalition Against the Death Penalty hosts a Richard Allen Davis home page.” true, but he has no access to it beyond sending letters to the CCADP to see if they’ll post them, and the web site hasn’t been updated since at least April of 2005. And Davis himself discourages anyone from posting or trying to sell anything connected to him or the crime.
Ms. Saunders goes on to say: “Without the death penalty, it is doubtful that Jared Lee Loughner would have pleaded guilty” to murdering six people and wounding Rep. Gabrielle Giffords, and, “Given his history of mental illness, it’s not clear Loughner would have been found guilty.” Well, given the overwhelming evidence that his hand held the gun, he would certainly have been found either guilty or criminally insane, and in either case he would spend the rest of his life locked up.
But even aside from the $100 million that would be saved, there is another overriding reason for supporting elimination the death penalty, the probability amounting almost to certainty that some of those on the row are innocent of the crimes for which they were convicted. The 140 people from 26 states who have been released from their death rows since 1973 because of findings of absolute innocence proves that. But, death penalty supporters say, no one who was actually executed has ever been shown to have been innocent. Well, yes and no. There have been several cases where it seems almost certain that the wrong man was executed, but there is, understandably, no legal mechanism for following up on that. After all what’s the point? We can’t bring him back.
I am willing to agree that there are those who deserve death, but they aren’t the ones who get it. No rich man was ever executed in California, or, as far as I know, in any other state. Most hardened criminals who know how to work the system, or who have good lawyers, escape the needle. It’s only the poor, bewildered schlebs or the criminals who have the misfortune to have a high-profile trial who end up on the row. And that ain’t fair.
* Life Without the Possibility of Parole