Environmental Ethics
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Ernest Partridge, Ph.D

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The Gadfly Bytes -- March, 1999

Reflections on the Gurney

By Ernest Partridge
University of California, Riverside
www.igc.org/gadfly // gadfly@igc.org



[The] reply is as old as man; it is called the law of retaliation. Whoever has done me harm must suffer harm; whoever has put out my eye must lose an eye; and whoever has killed must die. This is an emotion, and a particularly violent one, not a principle. Retaliation is related to nature and instinct, not to law. Law, by definition, cannot obey the same rules as nature. If murder is in the nature of man, the law is not intended to imitate or reproduce that nature. It is intended to correct it.

Albert Camus, Reflections on the Guillotine

Twenty-five innocent people have been executed in the US this century, and more than 340 have been wrongly convicted of capital crimes, according to a study by two criminologists. The study, released by the Capital Punishment Project of the ACLU, shows that, with more than 7,000 executions taking place since 1900, the rate of error is one "definite erroneous conviction" for every twenty executions. The findings, said project director Henry Schwarzschild, give "dramatic proof of the ongoing fallibility of our death-sentencing laws.

UPI, November 1985.

I shall ask for the abolition of the death penalty until I have the infallibility of human judgment demonstrated to me.

The Marquis de Lafayette

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 question).

"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 compelling.

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 executed.

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 chamber.

I know that I can not.

Can you?

Copyright 1999, by Ernest Partridge


PostScript: The "Attraction" Rebuttal to the Deterrence Argument.

One of the least-discussed aspects of the death penalty controversy is the possibility that, rather than deterring capital murder, the death penalty actually provokes it. Shortly before he escaped from a Colorado jail cell, Ted Bundy is reported to have asked "in what state is one most likely to be executed for murder?" He was told, "Florida." The rest is tragic history. And Gary Gilmore, obsessed with the notion of "blood atonement," moved to Utah -- the only state with a mode of execution, the firing squad, that actually sheds the blood of the condemned.

I was a resident of Utah at the time of the Gilmore execution. Soon thereafter I submitted and the Salt Lake Tribune published, the following letter to the Editor.

Well, Utah, we did it!

We gave Gary Gilmore everything he wanted and more. Not content with a private act of suicide, he chose instead to have us all collaborate in his self-destruction. He managed to reduce our community values to his level. He sought to demonstrate that killing is an acceptable response to rage. He devised a dramatic refutation of the deterrence theory of punishment and vivid evidence that most self-proclaimed advocates of capital punishment prefer the killing to the deterrence. He chose a few months of intense existential moments and political mischief in place of a life of anonymous insignificance and futility. He sought to make his personal tortured perceptions more prominent in the mass consciousness than basic and enduring questions of justice. He succeeded in displaying the abysmal state of moral perception and intelligence in this community of professed Christians.

Well, Utah, he go it all. And he could never have done it without our constant, enthusiastic, and thoughtless cooperation and connivance.

Had we but the judgment to see, we would have recognized that the issue of the State of Utah vs. Gilmore was not, most significantly, the issue of the fate of Gilmore; it was a question of the fate of the rest of us, and a question of our condition of moral awareness and intelligence. Of far more importance than what capital punishment does to the criminal is the issue of what it does to society. This issue barely crossed our collective consciousness.

But didn't Gilmore get what he deserve? Of course he did. However, the essential, but unasked, question is did we deserve this degrading spectacle, and its effects upon the quality of our communal life and mores? I devoutly hope not.

The death of Gary Gilmore, particularly the manner thereof, has diminished this community. Thus has Gilmore had his final and lasting revenge upon us all.

The Salt Lake Tribune, February 7, 1977


For more information and opinion regarding the death penalty:

The Chicago Tribune series by Armstrong and Possley, cited above, may be accessed at http://sun.soci.niu.edu/~critcrim/wrong/tribpros.html.[Broken]

Hugo Adam Bedau's classical ACLU booklet, "The Case Against The Death Penalty" has been revised and updated, and is available at  http://users.rcn.com/mwood/deathpen.html .

The Amnesty International web page offers information on death penalty cases at www.amnestyusa.org/abolish/.  In addition, links to numerous additional internet sources may be found at  http://web.amnesty.org/web/links.nsf

Finally, Prof. Lawrence Hinman's outstanding "Ethics Updates" offers a wealth of references and links at http://ethics.acusd.edu/Applied/deathpenalty/  [broken]

Copyright 1999 by Ernest Partridge


Dr. Ernest Partridge is a consultant, writer and lecturer in the field of Environmental Ethics and Public Policy. He has taught Philosophy at the University of California, and in Utah, Colorado and Wisconsin. He publishes the website, "The Online Gadfly" (www.igc.org/gadfly) and co-edits the progressive website, "The Crisis Papers" (www.crisispapers.org).  Dr. Partridge can be contacted at: gadfly@igc.org .