The Power To Kill
EDITOR’S NOTE: This article first appeared at The Roots of Liberty May 2016, and was reposted here on Substack March 2022. The tale of Richard Glossip, a man on Oklahoma’s Death Row that, per this article at The Free Press, shouldn’t be there, or at least deserves a new trial, prompted me to bring this bit back. The Supreme Court has agreed to hear his case, and its ruling could have significant implications for the death penalty itself.
If you TL;DR the article, two salient points: that the governor cannot commute his sentence absent permission from the state’s parole board, and that a whole lot of people in power are reportedly squirming over the prospect of executing someone who doesn’t deserve death but are also worried about blowing up or exposing the injustice of the whole system.
It was announced yesterday that the jury considering the penalty for Dzhokhar Tsarnaev, the recently convicted Boston Marathon bomber, elected to sentence him to death. The reaction I've read on social media has been overwhelmingly favorable, with many expressing strongly emotional responses to this decision. All this seems like the perfect moment to discuss my opposition in principle to the death penalty. This is, of course, sarcasm. Rational, dispassionate debates don't do very well in the context of highly charged and egregious cases and issues.
Nevertheless...
I don't hold a microgram of sympathy or empathy for Tsarnaev. His murderous actions and the certainty of his guilt make him a poster boy for application of the death penalty, and his death won't prompt even a gram of sadness on my part. When it comes to controversial issues, we inevitably choose battles, heroes and "faces," and the chances of him being presented as a test case or good candidate for a challenge to the death penalty itself are rather slim, to slay the least.
Nevertheless...
I haven't always been opposed to the death penalty. I never found the moral argument against death as a punishment for the most heinous crimes particularly compelling. I accept and agree that there is a point where criminals and crimes cross beyond redemption, and no sanctity of life argument has ever been compelling. There are monsters out there, and there are acts so monstrous that the actors don't deserve a chance at atonement. No, my opposition derives from an entirely different source: the distrust of government.
The death penalty is permanent and irreversible. It is a punishment that cannot be undone, and its application by a government that has a long and rich history of error, incompetence, bias, bigotry, malice, and selectiveness is an immoral affront. How can we, when presented by an endless barrage of government failures and errors, grant such a permanent and final power to its representatives? Why would we trust government with the power to kill those it was established to oversee and protect, when it has demonstrated in so many other areas that it doesn't deserve our trust? Pick a government endeavor at random and look at its history. Odds are quite good you'll find incompetence, inefficiency, selfish and unprincipled actors, and a general sense of disappointment. Criminal justice certainly isn't immune from these characteristics common to government efforts.
Consider how often we've heard that prosecutors' careers depend highly on their conviction records, and how this can create incentives that are in conflict with the pursuit of truth and justice. Consider that there's little in the way of checks and balances against prosecutors who go too far, with the immunity granted to them. Overly zealous prosecutors have ignored, hidden and/or buried exculpatory evidence, fabricated false evidence, suborned perjury, etc, in order to close cases, obtain convictions and keep their percentages up.
Consider the culture of conviction and the culture of misconduct.
Consider the sordid tale of Steven Hayne, formerly a medical examiner who performed the vast majority of autopsies in the state of Mississippi from 1987 to 2008. Hayne's career reads as that of a man looking to help prosecutors convict people, rather than of someone looking to uncover the truth and see that justice be done. Hayne's history reportedly includes perjury, falsifications, testimony completely unsupported by science, sloppiness and highly improbable thoroughness (he allegedly performed 1500-1800 autopsies per year, or 5-7 a day). A number of convictions based on his work and testimony have been overturned, but we will always wonder how many of those he helped prosecute were wrongly convicted.
Consider that not everyone charged with a crime gets the same level of competence on the defense side. A rich defendant can hire the best. A poor and uneducated one is often left at the mercy of the public defense system and reliant on the charity of others. Put simply, some get better defenses than others, and while there is a robust appeals process, screwing up the trial phase is not something that can be waved off that easily.
There's ample evidence out there that government simply isn't pure or perfect when it comes to criminal prosecution, yet many claim that all this is sufficient offset by the fact that convictions and sentences of this sort are handed down not by the government, but by jurors who are not government.
Let’s consider that. Let’s consider jurors and the jury system.
The government, in the form of judges and attorneys, controls juries and jurors. It controls who gets to be on juries, it regulates their behavior, it decides if a juror should be removed from a jury. It controls the instructions given to juries. Prosecutors and defense attorneys get a say as to who gets to be on a jury, and can dismiss jurors with or without reason during the selection process. People who express too much understanding of the law may not be wanted on a jury, since they're less easily managed. As an example, consider that it is a juror's absolute right to vote to convict or acquit, for whatever reason or lack of reason that juror chooses. Included in that absolute right is the right to acquit someone being prosecuted for a law he considers unfair or unjust, even if the evidence supports conviction. This is called nullification, and it is a well-established principle in both common law and judicial precedent. Yet, despite all this, judges rarely inform juries of their right to nullify, and are permitted by Supreme Court precedent to deny that information to a jury. I, as part of a pool of prospective jurors, was once asked under oath whether I would apply the law as explained by the judge to my decisions. An understanding of the nullification principle meant that I would have to answer in the negative. I never got the chance to answer (they dismissed me for other reasons) but I fully expect that had I answered truthfully they would have dismissed me for that very reason.
Thus, even the jury pool is managed and restricted by the government, and jury outcomes are affected by this management.
We can find countless other flaws, and countless other reasons to distrust the perfection of the system, something that we should absolutely demand if we are to grant the government the power to kill. We must also consider how bad or disingenuous actors within the system can use the overwhelming power of the government to pursue agendas at the expense of the innocent. Death penalty plea-bargaining is a tactic that has enormous coercive power, and an overly zealous or dishonest prosecutor can bully an innocent defendant into opting for prison rather than risking a jury trial and execution. If we are to believe that the jury is the ultimate check against government abuse of power, we must consider how this tactic can be used to bypass juries entirely.
Even the best system is imperfect, and an imperfect system will convict the innocent from time to time. Fortunately, our system has features that serve to minimize conviction of the innocent, features that give us reasons to trust that the system will get it right a large percentage of the time. These features also enable reversal of bad convictions, and even an innocent person who spent a decade or two in prison before being exonerated still gets a chance to live life after exoneration. An execution cannot be reversed.
One of the proper roles of government is the protection of individual rights against violation by others. That is the purpose of the criminal justice system. Despite all the flaws discussed herein, this nation's system is a pretty good one. It's why we trust it to prosecute the accused and punish the convicted. It's why we don't turn to vigilante justice or take the law into our own hands when wronged. But, pretty good is not perfect, and if we are to value the lives of the innocent, we should demand perfection before we grant the government the power to kill.
A big part of the appeal of the death penalty is emotional. It provides a sense of balance, it's biblical, it says ‘take others' lives and yours is forfeit.’ As I noted earlier, I don't have an objection to the death penalty from a moral sense, and if it could be applied with absolute certitude of guilt, only to the most heinous of criminals, and only by a government free of any motive other than justice, I wouldn't be writing 1500 words in opposition. But, it cannot. Given what is evident about government - the flaws, the conflicting motives, the incompetence, the indifference, the lack of accountability, I cannot fathom trusting government with the power to kill the people it governs.
An addendum: Here is a list of executed people who may very well have been innocent, or at least not guilty beyond a reasonable doubt. Some argue that the appeals process and the span of time between conviction and execution are sufficient to let the truth emerge, but there are examples of people being exonerated decades after conviction, with one man released just last November after 43 years behind bars for a triple homicide. He is 62, and has potentially two to three decades of freedom that he’d have been denied were he executed.
A final word. If, after considering all this, you still support the death penalty as it’s currently being applied, I ask: how willing are you to risk an innocent being executed? Is there an error percentage that’s acceptable?
There's a lot more going on in the Glossip case than the biased Free Press story indicates. The reason that Republicans and other state officials are siding with Glossip isn't that they think he's innocent, as the presentation of the facts (as drawn from Glossip's claims in the Free Press article) would seem to indicate.
And also not discussed in that story is that Glossip is a serial litigant, as many people sentenced to death for heinous crimes tend to be, and such serial litigants have for years conducted a guerrilla war against the death penalty. In fact, Glossip has already been to SCOTUS once, back in 2015 (Glossip v. Gross), challenging the use of the sedative midazolam (one of the drugs that is actually used in the death penalty "cocktail", which the Free Press article correctly says is used in place of "more reliable barbiturates" because the manufacturers of those barbiturates, who are located in foreign countries, wouldn't sell them for this use due to the guerrilla warfare overseas having targeted them). He lost 5-4, with the dissenting justices (Sotomayor, joined by Ginsburg, Breyer, and Kagan) all being anti-death penalty Democrats.
But this case is objectively different, and it gets tied up in Glossip's serial litigant history. Unfortunately, the Free Press article doesn't really discuss it (and in fact misleads about it). So, for Peter's readers, here are the real issues and why SCOTUS took this case:
The Free Press article correctly notes that the case against Glossip depended on the testimony of Justin Sneed, the actual murderer. The Free Press story says that Glossip doesn't know why he failed to report the dead body and then lied to police about it. Well, the prosecution convincingly made the case to the jury that Glossip did so because he actually planned and then after-the-fact was involved in the murder, and then it used Sneed's testimony about Glossip's involvement in order to convict him. But....
In response to a defense question, Sneed lied on the witness stand about not having seen a psychiatrist. In fact, he not only had seen a psychiatrist, the psychiatrist had found him to be potentially violent, especially when using meth (which he was doing when he killed Van Trees). And the prosecutors had the psychiatrist's report, so they knew he was lying. But they never shared that with the defense, and they permitted Sneed's lie in testimony to stand without correcting it. So the jury had no knowledge of this potential impeachment of the prosecution's theory of the case.
SCOTUS has ruled in previous cases that, in such cases of prosecutorial misconduct, the defendant was entitled to a new trial. So the prosecutors and state officials agreed in court that Glossip was entitled to a new trial. But here comes another complication, which is why the lower courts didn't give Glossip one and why the governor hasn't commuted his death sentence.
To deal with serial litigants such as Glossip, Oklahoma passed a law entitled the "Post-Conviction Procedures Act", basically mandating that, in the case of serial death-penalty litigants such as Glossip, who have repeatedly sought post-conviction relief over a lengthy period of time, only evidence showing actual innocence would be sufficient to overturn their convictions in court or to permit their death sentences to be commuted. And one thing this prosecutorial misconduct doesn't support is a claim of actual innocence, especially since you still have Glossip's failures to report the body or tell police about it when asked (which definitely incriminate Glossip and can't be waved away with "I don't know why I did that").
Taken as a whole, SCOTUS has to answer two questions: 1) Was the prosecutorial misconduct in Glossip's conviction so serious so serious that to uphold the conviction violated due process of law, especially when the state no longer seeks to defend the conviction, and 2) Is the state law represented by the Oklahoma "post-Conviction Procedures Act" sufficient state-law grounds to uphold the judgment despite the other issues with the case? (Remember, the murder was committed -- and Glossip and Sneed were charged with it -- in January 1997, but this claim was only raised in 2022, 25 years later, as part of Glossip's fifth application for post-conviction relief. Glossip's lawyers claim they only just learned about this, despite how long ago it happened.)
How the case will come out iat SCOTUS s still an open issue, but despite the headline in the Free Press article, it is unlikely that this case "will bring down the death penalty itself". The idea that Glossip is actually innocent seems pretty far-fetched under the circumstances, even if the writer in the Free Press believes it.
I wrote all of this to impeach the linked article in the Free Press. That said, I generally agree with Peter's position: it takes more faith in human nature than I have to believe that local prosecutors in the future are not going to play as fast and loose with the rules of evidence as the ones in Glossip's murder trial did. Glossip may in fact be guilty as charged, but it might be more conducive to justice in the future to remove some of the temptation for local prosecutors to misbehave.
I've never felt strongly either way to be honest. You bring up excellent points for sure and I appreciate it. Also, the jury nullification was quite interesting to me. I'd never heard of that before