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Why we should put an end to the death penalty

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Christopher Hitchens is a columnist for Vanity Fair and a visiting professor at the New School in New York. His latest collection of essays, "Love, Poverty and War," has just been published.

The moral argument about the death penalty takes a good deal of its passion and energy from the consideration of two types of extreme case.

In the first category, a murderer is released after serving a sentence in prison and kills again, or is sentenced to prison and kills another inmate or a guard. The deaths, it is sometimes argued in these instances, are on the conscience of the abolitionists.

In the second case, an innocent person is convicted and executed. Here, it seems, is something more than a miscarriage of justice. It indicts the whole system more than any other kind of wrongful verdict, because of its irrevocability. Meanwhile, the sufferings of the unjustly convicted person awaiting execution are somewhere in a realm thankfully beyond our imagination.

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To this could be added two points, which remove the moral equivalence from the above two dilemmas. If an innocent person is convicted of a crime, then it follows by mathematical logic that a guilty person has escaped capture and remains at large. The offense to justice and order is therefore a multiple one. And though no system, including a system that made extensive use of the death penalty, could ever be perfected to the point where no murderer would kill again, we do have it in our power to ensure that no innocent person is ever again executed. This decision would, however, commit us not to reforming capital punishment but to abolishing it.

To be able to do this and yet to choose not to do it is itself a decision that implicates us in something fairly dreadful. Here I’ll quote from Sister Helen Prejean’s admirable book:

“Recently, we have been witness to astounding admissions of error by state and federal courts forced to free 117 wrongly convicted people from death row since 1973, and the number keeps growing. Seven Louisiana death row inmates have been found to be innocent over the past six years (as of September 2004). Illinois alone has had to free 13 such people, some under sentence of death for eight, ten, fifteen years, which in the year 2000 led the governor to enact a moratorium on executions. Some innocent persons were freed because of DNA evidence, others because committed citizens and lawyers were finally able to expose suppressed exculpatory evidence, outrageous testimonies of jailhouse snitches, falsified police reports, or evidence of ‘coached’ eyewitnesses. In Illinois, Anthony Porter, two days away from execution, was freed because journalism students from Northwestern University dismantled the case against him and exposed the real murderer.”

The case of Porter should put paid to those who privately think that many perpetrators, though perhaps framed in one case, were probably guilty in others. He had never harmed anybody. He was moreover both black and severely mentally disabled: a combination of circumstances that seems to bring out the worst in some of our police departments and district attorneys. And the actual killer was walking free.

The great merit of Prejean’s last book, “Dead Man Walking,” as of the movie that was made out of it, was that it took an unsentimental attitude toward the occupants of death row. Some of these people are hideously dangerous and without conscience or remorse, and it is for them that the sentence of life without parole was designed. (Juries have been known to pass death sentences without being informed of their option to impose this alternative.) Prejean is the woman of last resort in many desperate cases and has, I think, evolved a reasonable intuition of when someone is guilty or innocent. In the trials of Dobie Gillis Williams and Joseph Roger O’Dell, painstakingly recounted here, one is compelled to conclude that she is right and that these two men were put to death for crimes they did not commit. Her method is a simple one, modeled, I would guess, on the scenario of “Twelve Angry Men.” First, the crime scene is described in a manner that makes things look highly incriminating for the accused. Then comes the slow adducing of exculpatory evidence. It’s a work of great persuasive power.

It will also, I hope, become a source of outrage. You might think that the production of exculpatory evidence would be enough. But in many states, if you don’t produce this by a certain tight deadline, you are too late and the courts may decline to hear it. This speeded-up process has increased alarmingly since the Clinton administration’s Antiterrorism and Effective Death Penalty Act: To the objection that capital punishment is “cruel and unusual” there are those who seem to reply, well, if we can’t make it less cruel we can at least make it more usual. The effort to make it less cruel, or anyway less dramatic (the process known as “lethal injection”), involves a degradation of the medical profession. As for the legal profession, it seems nothing short of appalling that in a country absolutely stuffed with lawyers there should be so many poor defendants who have the “right to counsel” only in name.

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Prejean is, of course, a Roman Catholic, and she tells of her disheartening struggle to persuade her church to condemn the death penalty. She also rehearses the argument, once advanced by the late Supreme Court Justice Harry Blackmun, that “the machinery of death” is so capriciously and randomly applied as to make it unconstitutional. Here her forensic and argumentative skills are weaker. There is nothing in Christian or biblical teaching that makes it incompatible with capital punishment and much Scripture that argues the other way. Many of the framers of the Constitution were influenced by Cesare Beccaria’s famous Enlightenment text, “Of Crimes and Punishments,” which was the first serious abolitionist book, but they did not succeed in writing this into the document, which is composed with admirable terseness and would have forbidden the practice explicitly if this had been desired. (Only the state of Michigan outlaws the death penalty in its Constitution; its homicide rate is no higher than that of any comparable state.)

It is for Congress to pass legislation removing the United States from the company of Islamic despotisms, banana republics and totalitarian dictatorships that still practice this barbarism: Alas, the recent election of so many of Sister Helen’s brothers and sisters in Christ makes this outcome even more distant. *

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