It’s Easier to Support the Death Penalty Than Invoke It

I always say I’m against the death penalty, but it never seems to bother me that much when they execute someone. Shouldn’t I be mourning the further decay of American civilization? If so, I’m falling down on the job. I would never be one of those people cheering an execution outside the prison, but neither would I be carrying a candle in protest.

My opposition to capital punishment apparently is more cerebral than visceral. Because executions aren’t meted out uniformly, I can’t get behind them as public policy, which, by definition, should be equitably administered. And then, there’s the obvious: You’d have to agree that executions have a sure-fire irreversibility about them, making moot any subsequent discovery that, oops, they tried the wrong guy.

But it’s not my ambivalence I want to question today. It’s yours.

You know who you are. You’re the person who supports the death penalty but won’t invoke it when you serve on a jury.

Polls show the American public overwhelmingly favors capital punishment. The most recent California poll I can find is from 1992 and shows 80% support. The Orange County district attorney’s office finds about the same level of support for its juries. Surely many of these people sit on juries hearing about horrible crimes. These same people then vote the other way.

Two highly publicized cases that jump out are those involving Susan Smith and the Menendez brothers. Both involved heinous crimes--a mother drowning her two children, sons ambushing their parents. Prosecutors sought the death penalty, but jurors refused to go along.

The conventional wisdom (and probably correct too) is that the jurors found some reason to sympathize with whatever trauma they believed led the people to kill. Just as likely, though, is that they knew the people--Susan Smith because she was a hometown girl and the Menendez brothers because jurors saw them week after week in court.

“In the abstract, people do support the death penalty, but it’s always much more difficult to kill someone who is no longer a stranger,” says Steven Hawkins, executive director of the National Coalition to Abolish the Death Penalty, based in Washington.

The Menendez trial exemplifies that, he says. “It’s not like your trial in rural Alabama, which is about a day-and-a-half long, still. There are plenty of capital trials that still wrap up in two days, and in two days, a jury barely [remembers] what the defendant looks like by the end of the month. If the state provides adequate resources and there is actually something that resembles a long and detailed trial, then the jury has more time to reflect. They will still give it up [the death penalty], but not with the frequency of jurisdictions that don’t provide the same level of resources.”

So, let’s assume the jury felt sympathy on some level for Lyle and Erik Menendez. Whatever it was, it overrode their revulsion over the brothers’ shotgunning of their parents.

“I think of all those kids who have gone into convenience stores, the 7-Eleven robbery that goes sour,” Hawkins says. “In the flash of an instant, something happens that changes their entire life. Some kids have volumes to be said about who they are, but because of the vagaries of poverty and lawyers who are underfunded and overextended, it doesn’t come out.”

Though Orange County juries have not been reluctant to vote the death penalty, some prominent cases have pointed up the agonizing nature of doing so, even for the ugliest murders. Earlier this month, several jurors cried while recommending death for 23-year-old Edward Charles III, who killed his parents and younger brother and set fire to their bodies.

As brutal as those murders were, it took a second jury to return the death penalty. The first jury deadlocked 11-1 in favor of execution.

In 1992, prosecutors also needed two juries before getting a death-penalty recommendation for Gregory Sturm, who had killed three former co-workers. According to testimony, they had begged for mercy before he shot them execution-style, but the first jury to decide his fate deadlocked 10-2 in favor of a life sentence. That jury deliberated 13 days and even asked prosecutors not to retry the penalty phase because they were convinced they would never get a death-penalty recommendation.

Prosecutors did anyway, and the second jury deliberated only about two hours before coming back with a death-penalty recommendation.

Nothing seems clearer about the death penalty than its arbitrariness. Charles, for example, had no prior criminal record. In the Sturm case, the defense argued he came from a dysfunctional family and killed to support a drug habit.

Both of those men face death. The Menendez brothers get life. I’m still searching for the major differences among the three cases.

Somewhere down the line, politicians should own up to the fact that, no matter what the polls say about capital punishment, people are dead-sure about the death penalty until they step into the jury box.

Dana Parsons’ columns appears Wednesday, Friday and Sunday. Readers may reach Parsons by writing to him at the Times Orange County Edition, 1375 Sunflower Ave., Costa Mesa, CA 92626, or calling (714) 966-7821.