The Death of Capital Punishment?

    Two pieces of news made their way through The Golf Room over the last couple of weeks. After the obligatory conversations with a number of people who are frighteningly smarter than I am, I think we've found some coherence. Let's give it a shot, shall we?

     A couple of weeks ago in Florida, Gov. Ron DeSantis signed legislation into law that lowered the threshold for a jury to recommend a death penalty sentence from being unanimous to an 8-4 majority. This is now the lowest standard in the country. Every other state but Alabama requires a unanimous recommendation from the jury. Alabama's threshold is a 10-2 majority. Florida used to require a unanimous recommendation. However, after three jurors refused to recommend the death penalty for Nikolas Cruz, the mass murderer who killed 17 people at Marjory Stoneman Douglas High School in 2018, DeSantis decided to put the weight of the governor's office behind legislation that would lower the threshold to the above mentioned 8-4 majority. There was much deliberation and much crossing of party lines before the final vote was taken. Ultimately the legislation passed. By the way, Cruz was sentenced to life in prison. Like many people, DeSantis was not happy that just "one person could derail this." That said, many on the other side of the debate worry that the deliberative process by the jury is much diminished when you only need to convince 8 people instead of 12.

    We now turn to Oklahoma where Richard Glossip has been sitting on death row for 25 years. Glossip was convicted in 1997 for the murder of his boss, Barry Van Treese. Now, nobody is asserting that Glossip actually killed his boss. The prosecutors say he paid 19-year-old Justin Sneed to do it. The only evidence presented in this case was the testimony of Mr. Sneed. Sneed was given a deal for his testimony. Hmmm...

    Glossip's conviction was overturned in 2001. An appeals court found the evidence against Glossip, how do I put this...wanting. However, he was convicted again in 2004. Glossip has escaped execution several times, receiving 4 stays of execution and being served three last meals. Even Oklahoma’s Attorney General doesn't want to pursue the execution. One report even concluded that the state had destroyed evidence, and that further evidence had been uncovered that would have exonerated Glossip. As time went on, it seemed that even Sneed was having second thoughts. He is quoted as saying that, "There are a lot of things right now that are eating at me. Some things I need to clean up." 

    Glossip is scheduled to be executed on May 18.

    First of all, let me state for the record that I have been in favor of capital punishment since I was able to vote, and I'd like to think that I have been increasingly able to intellectually articulate my position as I grew older. I think it is an appropriate punishment for murder. I do not believe that the goal of imprisonment, let alone the death penalty, should be rehabilitation. It should be justice, dare I say vengeance. The law makes no sense without a sense of vengeance. That said, what I am NOT in favor of is ending the life of an innocent person. Nor am I in favor of people sitting on death row for years, if not decades. 

    Increasingly, due to advances in forensics and science in general, especially DNA analyses, more and more people sitting on death row (again, sometimes for decades) are being exonerated. We are also seeing more and more executions being screwed up because of bad mixtures of poison or some other technical issue that gives new meaning to the "cruel and unusual" clause in the Eighth Amendment. 

    Currently 27 states have death penalty statutes on their books. For someone like me, the conservative case against capital punishment is three-fold: 1) The power to inflict death gives the government a cloak of majesty and pretense of infallibility that is antithetical to conservative philosophy; 2) Once capital punishment is carried out, you can't undo it when new evidence becomes available, so a capital punishment regime must be administered with extraordinary competence. But we are talking about a government program. To date 375 people have been exonerated from the death penalty, many of those due to DNA analysis; and 3) The death penalty is so sporadic that it can't really be considered a deterrent. 

    But, and there is always a but...those 3 precepts above get me thinking. I mean, if you are a deterrence person, I suppose that if you made running through a stop sign a capital offense no one would ever run a stop sign again. But that's not really the point, is it? For people on death row, and for those who will be on death row in the future, they weren't really deterred by being put to death were they? It seems to me that the mind of a murderer just doesn't think that way, so let's put deterrence aside. 

    Let's return to my increasing abhorrence at the wrong person being murdered. Is it too simplistic to type that if just one mistake is made, it's one too many? Well, as our grandfathers would say, that horse has left the barn. Study after study (from liberal and conservative organizations) cite statistics and posit that 4 percent of those on death row are innocent, and having said that, it is reasonable to assume that innocent people have already been put to death. 

    Secondly, for me anyway, is the whole randomness of it. In 2015, Supreme Court Justice Stephen Breyer, in a dissent against capital punishment, asked the following question (one among many): "Why does one defendant who participated in a single-victim murder-for-hire-scheme...receive the death penalty, while another defendant does not, despite having stabbed his wife 60 times and killed his 6-year-old daughter and 3-year-old son while they slept?" I have no idea if that question was answered to anyone's satisfaction...but it's an important one. 

    For years, liberals have put forward the argument of "evolving standards" when the question of interpreting the Constitution comes up...how the Constitution is a living breathing document. Personally, I think that's a lot of crap, but that's for another piece. That said, I've come around to the idea that standards of decency do evolve. As late as the 18th century, and back into Henry VIII's time, Protestants would make effigies of the Pope out of straw or wicker or whatever. They would then hang the effigy from a tree  and set in on fire. But before that, they would put kittens in the belly of the effigy. As the flames grew and the kittens would begin to howl as they were being engulfed in the flames, Protestants cheered that either the spirit of Satan was being expelled from the Catholic Church, or that the screeching and howling was a conversation between Satan and the Pope. We don't do that any longer. Sensibilities can change or evolve, as it were. 

    Is it time for the death penalty to die as these sensibilities change? I don't know. I'm leaning...or evolving...or maybe I'm just getting old. To be honest, there are more than a number of people I want to see juiced up. Remember those two pricks who bombed the Boston Marathon some years ago? Give me the needle, or the switch, or whatever. I'd have done it. The murderers of elementary school children these last few years? Fry 'em. And again, if anyone else has a problem with it, I'll do it...if they're still alive. But like most things in life, the conversation is not as cut and dry as it was in my youth. 

write to Peter: magtour@icloud.com