TCS Daily

A Death Penalty Red Herring - Part 1

By Lester Jackson - October 30, 2009 12:00 AM

NOTE: Page numbers and footnotes in brackets refer to documentation in the detailed paper downloadable here; those in parentheses refer to all other linked sources.

Dishonest death penalty opponents have made many false and inflated "exoneration" claims. But their Holy Grail [21] is to prove actual execution of an innocent person. Toward this end, The New Yorker recently trumpeted the 2004 Texas Todd Willingham execution. His alleged innocence has been vigorously disputed. Not only have there been so many false "exoneration" claims that finding just one authentic modern instance of an executed innocent person has taken on the aura of a crusade - the very premise is inane and hypocritical.

The premise is that irrefutably proving just one wrongful execution would justify, indeed require, abolition of capital punishment. For example, in finally deciding it was always unconstitutional, Justice Blackmun believed (n8) that courts "are unable to prevent human error from condemning the innocent." The New Mexico and New Jersey Governors signed death penalty repeals partly on the stated ground that it is not "100-percent ... perfect...never [] wrong ... foolproof."

This is a red herring to confuse public opinion, which thus far has not been easily swayed [34]. The goal is not to protect the innocent, but guilty murderers found by juries to deserve execution. Those who demand perfection for murder convicts make no similar demand to protect the law-abiding public.

To quote Justice Scalia (18): "Like other human institutions, courts and juries are not perfect. One cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly. That is a truism, not a revelation."

The utter inanity of the perfection premise becomes clear with just a brief focus on the obvious. Because there is no perfect human activity, life as we know it would come to a halt under such a requirement. Even walking on a sidewalk or shopping, or eating in a restaurant can result in death. Those who insist upon death penalty perfection do not call for closing roads and hospitals, or stopping all transportation because these enterprises result in vast numbers of deaths. Nor, in their purported quest to prevent all risk, do they seek an end to human reproduction. Inevitably, some normal babies will suffer serious or fatal injuries and diseases. Especially relevant here is that some will be raped and/or murdered by previously convicted rapists and murderers saved by death penalty opponents. Since having children entails risk, do abolitionists propose to sterilize everyone to prevent producing more people who will endure tragedy?

The commonsense objective in life, not perfection but the best that can be done, has been more than achieved to avoid executing the innocent. Not so for protecting the public from repeat violent offenders.

Dishonesty and Hypocrisy
Given its inanity, those demanding perfection exclusively for the death penalty are again dishonest because this is really a thinly disguised attempt to require its abolition for all convicted murderers, no matter how heinous or numerous their crimes and how overwhelming the proof of guilt. The protection of such murderers is the true objective. With candor rare for abolitionists, Bedau and Radelet, leaders in alleging executions of the innocent [n11], openly proclaimed: "We ... oppose executions of the guilty .... [R]ejection of capital punishment, on moral grounds and on grounds of social policy, does not turn on ... risk of executing the innocent...." [n297]

Perfection is purportedly sought because life is at stake. However, demanding perfection in order to have capital punishment utterly ignores the excruciation caused by the imperfection in not having it.

A Critical Distinction: The Whole and the Parts. Some convicted murderers, if kept alive, will kill again; even the most extravagant "exonerations" claims do not come close to the number of well-documented murders committed by previously convicted murderers [9-10, 41-42, 52, n272]. The particular convicted murderers who will kill again cannot be precisely identified, but it is absolutely certain that some of them will. For each individual convict, it can be said there is a risk. But for the group as a whole, it is not a risk but a perfect 100 percent certainty.

Abolitionists do not fret about not just risking but assuring sacrifice of lives of innocent, law-abiding people for the sake of keeping convicted murderers alive. In truth, advocates for violent convicts justify this guaranteed loss of innocent lives on the very ground that Holy Grail seekers reject in arguing for abolition.

To take but a handful of myriad examples:

  • On March 14, 1996, elite unit Police Officer Kevin Gillespie was murdered by young parolees with a long history of violence. Fifteen days later, the ACLU National Prison Project's Jenni Gainsborough told Dateline: "It's not a perfect situation. We cannot be right 100 percent of the time, but you have to take some risk. That's a part of human life. There is no way of avoiding risk."
  • Innocent mothers Ewa Berwid and Lisa Bianco repeatedly pleaded for protection, expressing terror that their husbands would murder them if released (as Adam Berwid expressly promised in open court). Both husbands were nevertheless freed by all-knowing risk-taking "experts" and both promptly slaughtered their wives in front of their children. In response to the Bianco butchery, the ACLU Prison Project's Ed Koren did not demand an end to such releases until perfection was guaranteed: ''Nobody can predict what somebody is going to do in the future. We have to rely on people's judgment. It's unfortunate that people get hurt in the process. But if you tighten these programs, prisoners will lose the opportunity to lead possibly productive lives.'' No concern about the loss of innocent lives here.
  • N.Y. State Division for Youth Director Peter Edelman thought he knew better than the judge who urged that a violent offender not be prematurely released: "I looked into it very carefully and found ... he had made excellent progress." The release resulted in an attempted knifepoint robbery of a woman five days later. Edelman rationalized new violence, including murders and attempted murders, by offenders released by his agency, saying it was "not always possible to predict correctly that a release will work out satisfactorily - you cannot be 100 percent right...."
  • In 1978, Lawrence Singleton raped, tortured, cut off her forearms and left 15-year-old Mary Vincent to die by the side of a road. No thanks to him, she survived. On parole, Singleton committed murder in 1997. Naturally, there was extenuation. Sex-crime "experts" labeled him an "anomaly" and added "only a small minority go on to commit murder." This "only" attitude was neatly captured by Georgia Polston: "We didn't like the idea that something had happened. But you can't make a big thing about it if you want to give people a chance.''

"Giving people a chance," without concern for the guaranteed new but avoidable catastrophe this will cause for other people, is exactly what is being sought now.

Continued in Part 2...
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