Non-sequitur

On the topic of eschewing capital punishment because of its inherent fallibility, I have repeatedly received missives of the following nature:

What, in your opinion, happened to the right to life of a murder victim.
1. You have murderer a who may not be executed because the constitution protects his/her right to life.
2. You have a murder victim who HAD a right to life but it has been voided by the murderer whose right to life is still protected by the constitution.
Does the constitution only protect the right to life of murderers?
Something does not add up here.

The questions posed by this individual are non-sequiturs. The topic of the blog was the inherently fallible nature of capital punishment. It has nothing to do with the right to life of anyone other than a person incorrectly convicted of a capital crime and sentenced to death…a person who is not a murderer, but who may well be executed as one. The blog was about innocent people facing execution because the justice system has no way of ensuring 100% accuracy in its convictions and, because of that, it cannot justly condemn anyone to death without risking the execution of innocent people.

The American Constitution does not protect the lives of murderers…it permits the death penalty to exist, which, unfortunately takes the lives of the innocent as well as the guilty. The problem with the death penalty is that we humans cannot know if a person is truly guilty or not when we sentence him to death…we can only make our “best guess” based on the evidence presented to us and, entirely too often, we guess wrong. Would anyone reading this care to be shut alone in a windowless room less than six metres square for years on end, wondering each morning if this to be your last, when you committed no crime? If it happened to a law abiding citizen like Ray Krone, who wasn’t even in the wrong place at the wrong time but simply had crooked teeth, you can be assured that under such a justice system, you are just as much at risk as he was.

The question of one’s right to life covers the innocently convicted as much as it covers the victim of murder, and until there is a 100% accurate means of convicting only the murderer, until there is a 100% means of preventing convictions like Ray Krone’s, the mechanism by which Ray Krone was almost deprived of his life by the very government tasked to protect him must be dismantled. A man serving a sentence of life in prison without possibility of parole is as isolated from preying on society as a dead man: if he is guilty, he is punished by his isolation and the society is protected from his predations; but if he is innocent, if and when that fact finally comes out, he can be released. You can’t give an innocent…but executed…man the rest of his life back. It is important to err on the side of conservatism in matters of life and death…if you must make mistakes in conviction, which is inevitable at this point in history and scientific development, then those errors must not take innocent lives.

The life and death of the victim are moot in this discussion. The victim is already dead, his right to life violated, and no rights exist for dead people. At best, his remaining right is to have his killer apprehended and punished, but that is violated by the State when an innocent person is brought to book. But what of the rights of the person who committed no crime but who faces the death penalty anyway? What of his rights? What is germane here is the life of the innocent person who may be convicted for causing the victim’s death…because he is innocent, does he not have a right to have his life preserved? And what of the further victims of the real perpetrator, still running loose in society because the authorities, satisfied with their conviction of the innocent, fail to pursue? The real rapist/killer, in Ray Krone’s case, went on to sexually assault a child. Sentencing an innocent man to death deals a double tragedy, for not only can an innocent person face institutional death, the authorities cease to search for the real perpetrator, who continues to prey on society and may well commit further crimes.

The death penalty surely kills people guilty of murder. But it just as surely kills people innocent of it. And until we have an absolutely foolproof means of telling them apart, it simply makes sense to stop the killing. How, after all, does the execution of an innocent man effect justice for the victim?

A final note: many people mistakenly believe that the US Constitution guarantees its citizens “life, liberty, and the pursuit of happiness.” These words do not appear in the Constitution or in any of its Amendments. The words come from the Declaration of Independence, which does not have the force of law.

A Reasoned Response...

To my 29 January blog I received a comment that begs for response. Herewith my rejoinder:

All good and well, I agree, lets find a way to prevent wrongful sentencing. Sentence them to death only after being 100% sure. That, of course, is the crux of the entire matter: these individuals have been unanimously sentenced to death by twelve people…not one or two or even three, but twelve people…who were 100% sure of their guilt.

In these cases juries are not to be trusted. You’ll have to re-write the US Constitution to take juries out of the equation. It guarantees that people will be tried by a jury of their peers (meaning regular people, not members of the aristocracy). And since it is a part of the Bill of Rights, it is highly unlikely that such a change will ever be made…that document is considered more sacrosanct than the Constitution itself. In other words, it ain’t ever gonna happen, so juries and their inherent vagaries must be taken into account.

You need to have a panel of trained experts. What guarantees are there that these experts are infallible and incorruptible? If they aren’t, they’re no better than a jury.

The technology available today including DNA and more should allow there to be no reasonable doubt. Without DNA testing there may be reasonable doubt. If I remember correctly, of the 100 cases mentioned in my original blog, only 16 of them hinged on DNA evidence. In fact, the biggest problem in these wrongful convictions were due to eyewitness testimony…faulty eyewitness testimony! For many cases, there is no biological evidence for DNA testing…three guys wearing trench coats. gloves and balaclavas storm a bank, gun down the guard and several customers with automatic weapons, grab a ton of cash and run…not much DNA left behind…except for the victims bleeding out on the floor.

If the prosecution hides exculpatory evidence, The prosecution should be charged with Defeating the ends of justice. A bit of a circular response, isn’t it? If the prosecution is hiding exculpatory evidence and the suspect is convicted of a capital crime and sentenced to death, exactly how are the prosecution’s misdeeds to come to light? In Ray Krone’s case, it happened quite by accident: he was awarded a retrial based on procedural anomalies in his first trial, and his defence attorneys submitted his bite pattern and photos of the bite marks on the victim to an internationally renowned forensic odontologist. This doctor informed the defence team that the bite patterns didn’t match now, just as they had not matched four years earlier when he had first seen them. Surprised, the defence attorney asked how this doctor had come to see these impressions four years earlier and the doctor said the prosecution had submitted them…and he had told the prosecution then that they didn’t match. Not only did the prosecution ignore this information, they “shopped” the evidence around until they found a forensic odontologist who would testify that they did match…if memory serves, there were nine specialists consulted, only one of whom believed there was a match. And the prosecution not only withheld from the jury the evidence that eight out of nine forensic odontologists viewing the evidence gave it a thumbs down, the prosecution withheld the information from the defence team (they are required to turn over such evidence). How likely is an accidental discovery such as this would fall in the lap of every person wrongly convicted as a result of the suppression of such clearly exculpatory evidence? My opinion? Not bloody likely.

Also if the person is executed due to lack of concience and investigation, the prosecution team should be charged with murder. Along with buying stolen goods, these are the worst crimes in my book. Well, that’s really good incentive for the prosecution to make sure any suppressed exculpatory evidence goes mysteriously missing after the conviction, isn’t it? And buying stolen goods doesn’t seem, to me, to be a worse crime than rape or torture, particularly of children, but to each his own, I guess.

Saying that the death penalty is not a deterrent is factually incorrect. Look at the countries that vigorously enforce capital punishment such as Singapore, Do they have the levels of crime that are found in more civilised societies? I made no argument regarding the supposed deterrent value of capital punishment, but studies in the US, where there are 50 states and something over half of them have capital punishment, has repeatedly shown that the rates of capital crimes are not lower in states that impose the death penalty. I suppose that might have something to do with the arrogance of the criminal mind…if you don’t think the cops are smart enough to catch you, then you don’t even think about the penalty for the crime. Besides, the vast majority of murders are crimes of the moment…not planned and premeditated…so it is unlikely that the moment necessary for reflection and contemplation of the penalty even arises. Um…in Singapore you can be arrested for chewing gum. As a country, it is hardly a model for human rights and I, for one, would prefer not to live in a totalitarian state in which the citizens must be obedient little ’bots or get caned…or worse. Not only that, Singapore is known for rapid execution those convicted of capital crimes…is the life of an innocent Singaporean worth less than the life of an innocent American or South African or Brit? How would you feel if your kid was Ray Krone but he was in Singapore and he wasn’t given the time for the technology to mature enough to prove him innocent?

Make it a crime not to investigate thoroughly, The police are known to be lazy and go for the solve. And who is going to determine “thoroughly”? Even the most industrious police force can do nothing about faulty eye-witness testimony, for example, or a fellow officer who plants evidence (this was a huge scandal in the LAPD a few years back…right down to planting “throw away” guns).

The obvious is not always the answer. but sometimes it is. And sometimes the obvious is stubbornly overlooked: the entire system of justice is riddled with fallibility because it is riddled with human beings. There is no way to be 100% certain…we can’t even reliably determine when a person is lying or not, let alone if a witness’s report is an accurate reflection of the events. Any margin for error is too big if it leaves an innocent person at risk of being deprived of his life. And the only way to guarantee that will not happen is to put the death penalty on hold until a 100% foolproof means for determining guilt is devised. I’m not gonna hold my breath!

A second commentator says:
Excellent piece of work. I agree with what you are saying. By doing this you prtect the rights of the perpretator but what happened to the rights of the victim? Ray Krone was not a perpetrator. Ray Krone was an innocent man who was twice convicted of a vicious rape and murder that he was later incontrovertibly proven not to have committed…DNA not only exonerated him, it identified the real perp. Eliminating the death penalty protects the rights of victims of miscarriages of justice, like Ray Krone and more than 100 people over the last 30 years.

I am talking murder victim here. I would like to hear what your point of view on this is.
And if Ray Krone had been executed, he would not have been a victim of murder? Truth is, nobody loses if the death penalty is put permanently to bed. If the perps are guilty, they are off the street and no longer a danger to society; but if they are convicted wrongly, they don’t end up dead at the hands of the government that is supposed to protect and preserve their rights and, when they are finally exonerated, they can be released to live the rest of their lives in freedom.

What do you say to a mother whose son has been executed and later discovered to be innocent of the crime…somehow, “Oops! sorry!” just doesn’t seem to cut it.