During the 1988 Presidential debates, CNN correspondent Bernard Shaw
asked Michael Dukakis: "If Kitty Dukakis were brutally raped and murdered,
would you favor an irrevocable death penalty for the killer?"
It was a fat, slow pitch down the middle. And "Zorba the Clerk" struck
out with cold and leaden abstractions. Ever since, I have rehearsed in my
head what he should have said (for I have often been asked a similar
"Bernie, if such a terrible thing had happened to my wife, I would not
only be in favor of the death penalty, I would beg for the privilege of
tying the accused to the rack and pulling his limbs from his body. That's
how I would feel, heedless of the question
of whether I was absolutely certain that the man on the rack was in fact
the culprit. And that is why family members of the victims do no serve on
juries. Now, feelings aside, let me tell you why I think
the death penalty is unjustified..."
Capital punishment is an issue that does not admit of degrees - we have
it or we don't. (However, if enacted, its application does admit of degrees
- from heresy and petty theft in earlier times, to restrictions to first
degree murder and treason in modern jurisdictions).
Moreover, as with so many moral and legal issues (e.g., abortion, free
speech, civil disobedience, affirmative action, etc.), intelligent
disputants will usually concede that the cases of their opponents have at
least some merit. Thus one's position on such issues is usually based upon a
sense of the weight of competing arguments and considerations.
Though I am similarly aware of the arguments of the proponents of
capital punishment - deterrence, retribution, prevention - I remain
convinced that the weight of empirical evidence and moral reflection moves
the scales of justice against the death penalty.
I understand the feelings of "just deserts" that accompanies
some executions. I did not grieve for Adolph Eichmann or Ted Bundy, and do
not grieve for the perpetrators of the terrible hate crime in Jasper, Texas.
But as Michael Dukakis should have pointed out to Bernard Shaw and the rest
of us, feelings must not, in such portentous matters as capital
punishment, suffice as justifications.
Over the years, my opposition to the death penalty has been constant in
content, though variable in weight and conviction. Retribution, I
find, is an argument with great intuitive force, enhanced with the emotion
of indignation when I contemplate particularly heinous crimes. And yet, at
the same time, one is hard pressed to support this intuition with a coherent
argument. Deterrence carries more practical weight. And quite
frankly, if there were compelling evidence that each execution deterred the
murder of ten innocent victims, this would likely suffice to change my
position on capital punishment. But there is no such evidence. Still worse,
extensive studies (e.g. of adjacent states with opposite policies, or of
states changing their policies) show no significant differences in murder
rates, and thus yield no evidence of deterrence. "But wouldn't the thought
of execution deter you from committing a murder?" Perhaps, but I
really couldn't say, since I am so far removed from that possibility. I am
not a murderer, nor are you, dear reader. Murder is so abhorrent and so
remote from the contemplation of most of us, that I am quite unable to
imagine the mind-set of those capable of such an act. I am left with the
evidence of deterrence, and, as we have seen, it is inconclusive at best.
Of all the arguments against capital punishment (which I will not review
here), one in particular has, through the years, come to outweigh all the
rest in my case against the death penalty: this is the argument of the
miscarriage of justice. I am convinced that human beings, be they
ordinary citizens on a jury, or educated prosecutors or judges, do not have
a capacity of sound and fair judgment sufficient to carry the portentous
weight of deciding the life or death of another person. And this is not
simply a matter of abstract moral/philosophical reflection; now there is a
preponderance of empirical evidence to support these qualms. With the
development of DNA forensic technology, that evidence is today even more
The simple, startling and demonstrable fact is that dozens of innocent
prisoners have come within days and even hours of unjust execution. And in
some cases, it is apparent that innocent individuals have actually been
In the United States, 38 states sanction the death penalty. Each is
capable of generating gross injustices.
In Texas, where football is a religion, prosecutors follow the teaching
of the prophet Vince Lombardi: "winning is the only thing." That leaves no
weight for justice. The paradigm Texas case is that of Randall Dale
Adams (portrayed in the film "The Thin Blue Line"). Despite a confession by
Adams' companion, recanted testimony of key witnesses, and the disclosure
of crucial evidence withheld by the prosecution, the prosecutors remained steadfast,
and alone, in their assertion that Adams shot and killed officer Robert Wood. Having
come within seventy-two hours of execution, Adams was eventually released
after spending ten years on death row.
In Missouri, prison inmate Lloyd Schlup was condemned to death for
participating in the murder of another inmate. Eleven eyewitnesses,
including prison guards, testified that Schlup was not at the scene, and two
additional witnesses (one a prison guard) provided alibis. A prison
surveillance tape showed him far from the scene of the murder. No matter -
his court-appointed counsel bungled the defense. Only a single vote on the
US Supreme Court saved this almost certainly innocent man.
In Illinois Rolando Cruz spent ten years on death row following a trial
so corrupted by perjured testimony, suppressed exculpatory evidence, false
evidence and other prosecutorial misconduct, that three prosecutors and four
Sheriff's officers were indicted (though subsequently acquitted). After two
more trials, Cruz and his two codefendants were acquitted.
And of course, we all know about Dr. Sam Shepard who, decades after his
death and through the persistence of his son, has at last been exonerated
through DNA evidence.
Recently, twenty-six exonerated former death-row inmates met in Chicago
to publicize the dreadful fallibility of capital trials. Among them were
Adams and Cruz. Many of these individuals would likely have felt the lethal
needle, but for the exculpation of DNA evidence. Saved by the timely arrival
of biotechnology! In all, thirteen Illinois death row inmates have been
found innocent, prompting Governor George H. Ryan to issue a moratorium on
executions pending an official investigation.
These are live, warm-blooded witnesses to the heavy moral price that can
be paid to the fallibility of human judgment. But these are the lucky ones.
Roger Keith Coleman in Virginia (1992) and Jesse Tafero in Florida (1976)
were almost certainly innocent - and both were put to death. Radelet, Bedau
and Putnam have identified more than two dozen erroneous executions in the
twentieth century. And there were surely many more. However, prosecutors,
like doctors, have the privilege of burying their mistakes.
In their brilliant examination of prosecutorial misconduct in Illinois
and beyond, Chicago Tribune writers Ken Armstrong and Maurice
Possley (cited below) report that "since 1963 ... at least 381 defendants
nationally have had a homicide conviction thrown out because prosecutors
concealed evidence suggesting innocence or presented evidence they knew to
be false... Of the 381, 67 had been sentenced to death."
The American system of justice is surely one of the triumphs of human
reflection - a balance of rules and procedures that scrupulously include and
exclude evidence and modes of argument, all devised to give the
defendant-citizen the fairest practicable day in court, and to yield the
highest possible proportion of correct verdicts by the "triers of fact" -
the jurors. And even then, we are told, if there is to be error, "better
that one hundred guilty go free, than one innocent be found guilty."
But for all that, American jurisprudence is a human institution, and thus
subject to the all-too evident weaknesses of judgment and excesses of
emotion that attend the human condition. Thus we as citizens, and perchance
as jurors, focus on the horror of the crime and our indignation toward the
alleged culprit, all the while we are disinclined to reflect upon the
weaknesses of human judgment or our capacity to fully meet the judge's
instruction that we be "disinterested triers of fact." It asks a great deal
of the ordinary citizen to admit such incapacity, and few meet that test.
"Someone's gotta pay for this!" is a sentiment that has proven
extraordinarily difficult to exclude from the jury room.
Add to this the Lombardian "winning is everything" sentiment of the
prosecutorial fraternity, and the inability of most defendants in capital
cases to secure the services of deep-pocketed lawyers, and the prospects for
miscarriages of justice become palpable. The evidence? Just ask Randall
Adams or Rolando Cruz, and scores of others.
Or ask the more than 3,000 residents of the 38 death rows. Many, perhaps
most, will tell you that they are innocent. The vast majority of these pleas
will be outright lies. But surely it strains credulity to believe that each
and every last one of these wretched souls is guilty as charged. Meanwhile,
the Congress and the Courts, impatient with prolonged appeals, have
significantly curtailed prisoners rights to file habeas corpus
appeals, to present new evidence, and to obtain new trials. The legal
treadmill from trial to sentence to the gurney is accelerating. Absent an
unlikely moratorium on the death penalty, time is bound to run out on at
least a few of the innocents. Of this we can be confident.
At the close of his review of "Dead Man Walking" (the book by Sister
Helen Prejean, not the movie), Garry Wills reflected: "Right-wingers like to
say that the government cannot be trusted to deliver mail, much less health
services. Yet they trust it to be efficient enough, free enough from
corruption, to ascertain guilt infallibly and punish it finally by death."
(New York Review, 9/23/93).
What huge advantage in morality or social consequence is to be gained by
capital punishment that is worth the innocent lives lost to judicial "error"
or to prosecutorial zeal, not to mention the surviving grief of the family
of the condemned? Who among us can be so sure of himself and of our legal
institutions to willfully cause the death of another - a decision in the
jury room as definitive as the act of squeezing the syringe in the death
I know that I can not.
Copyright 1999, by Ernest Partridge