Tag: Capital Punishment

Michigan, where I live, does not have capital punishment and was one of the first government’s in the world to ban capital punishment for all crimes except treason (the state later abolished the potential treason punishment as well). And a story in The New York Times illustrates why — a Detroit man was just released after spending more than 17 years in prison for a crime that he did not commit.

Eddie Joe Lloyd was convicted of the 1984 rape and murder of a 16-year-old girl and the evidence at his trial was more than enough to convict him. After all, the jury got to hear an audiotape of a detailed confession that Lloyd gave to police (he also signed a written confession) and Lloyd knew details about the crime not released to the public.

Lloyd became a suspect in the case when he wrote to police from the mental hospital where he had been committed asking to see the case file for the murder of the young girl. In his letter, Lloyd mentioned that the girl had been sexually assaulted with a green bottle. That was in fact correct, but it was a detail the police had not made public.

Police interviewed him three times, made the audiotape of his confession, and Lloyd was convicted. But Lloyd maintains that he only made the confession as part of an effort to trip up the real killer. Lloyd’s mental illness apparently led him to confess to the crime out of some bizarre view that by doing so he would help capture the real killer.

DNA tests on both that bottle and on the underwear used to strangle the victim showed that Lloyd was not the killer and he was released after prosecutors and defense lawyers agreed that his conviction should be overturned.

After he was released, Lloyd said,

I consider myself lucky. Seventeen years? If Michigan had the death penalty, I would have been through, the angels would have sung a long time ago.

Michigan originally banned capital punishment after the wrongful execution of a man in the early 19th century. Even if it is acceptable for the state to kill its own citizens in cold blood (which I firmly maintain it is not), the risk of executing innocent individuals is an intolerable risk.

Source:

Man freed after DNA clears him of murder. Jodi Wilgoren, The New York Times, August 27, 2002.

The Washington Post recently reported on the progress of the Innocence Protection Act — a bill slowly winding its way through the Congress that would help convicts gain access to DNA evidence that might exonerate them.

The bill would offer federal funds to states to reform the way they collect, preserve and offer access to DNA evidence.

Since 1973, over 100 death row inmates have been released, many based on DNA evidence. But prisoners can find it difficult to obtain DNA evidence. In many cases, the DNA evidence simply hasn’t been preserved. In other cases, prisoners have already exhausted all appeals and find it difficult to convince courts to let them test DNA evidence.

This is good as far as it goes, but it ignores the fact that in some cases people have been wrongly convicted and sentenced to death where DNA evidence was not the determining factor in overturning a conviction. DNA testing will reduce certain types of wrongful convictions, but the entire system will still be fundamentally prone to error as the last half century of overturned convictions has proven.

A better option would be to simply eliminate the death penalty. Libertarians should be at the forefront of the effort — the state should not be in the business of killing its own citizens.

Source:

Death row legislation gains support on Hill. Juliet Eilperin, Washington Post, July 22, 2002.

I really hadn’t intended on writing about the death penalty for awhile, since it tends to be one of those polarizing issues that people tend to talk past each other over. But Seth Dillingham today linked to an article about a distant relative who is going to be executed in Texas which highlights the problems with capital punishments.

I think we can all agree that the convicted killer Jeffrey Dillingham is not the sort of person who should be released back into society anytime soon. Jeffrey was one of three people in a murder-for-hire scheme concocted by the daughter of a wealthy man who wanted her inheritance a bit early. Along with a friend of his, Brian Salter, Jeffrey Dillingham broke into a house, beat to death 40-year old Caren Koslow, and almost beat to death 48-year old Jack Koslow. A despicable act. You can even understand the emotions that went through Jack Koslow at the trial of his daughter Kristi, who masterminded the murder — distraught over the death of his wife, he urged the court to sentence his daughter to death for her part in the crime.

Does the state have the right to kill Jeffrey Dillingham? I don’t think so.

Why?

First, the moral authority that the state has derives from the moral authority that individuals collectively have — which also means that the state is limited by the moral authority that individuals collectively have. Jack Koslow was found unconscious at his house, but imagine that he had regained his consciousness with the killers in his house and managed to grab a gun and turn the tables on his would-be killers. Suppose, finding his wife dead, Jack Koslow tied up his assailants and shot them each in the head, and then dispatched his daughter. In this imaginary scenario, Jack Koslow himself would be in jail for first degree, premeditated murder, and he would be denounced as a vigilante.

If it is morally wrong for an individual or group of individuals to kill an unarmed person, it does not suddenly become morally permissible just because those people go into a jury room and come back and pass the job of actually doing the killing onto the state of Texas.

Consider how different the moral case is for simply jailing Jeffrey Dillingham for the rest of his life. Suppose Koslow disarms and subdues his assailants, but finds his phone service has been disconnected by the intruders. Fearful that the criminals might escape, Koslow locks them securely in his basement, tied up, while he goes next door to call police. Certainly Koslow has the right to lock up his criminal assailants for as long as necessary for his own protection. Similarly the state has a right to act on behalf of everyone in society to lock up criminals and exclude them from society both for our protection and as a just form of punishment.

But why not just give the state the power to do things that we all agree would be immoral if individuals or groups of individuals did on their own? Well, we can look at the results because that idea forms a set of legal principles called sovereign immunity. Sovereign immunity originated as the right of kings — since kings were, at least theoretically, the source of all laws under monarchies, it followed that whatever the king chose to do was by definition legal. It was considered literally impossible for the king to commit a crime.

Now obviously, this sort of principle was never adhered to exactly though the rights of royalty in monarchies until very recently were extremely broad. Unfortunately this idea carried over into the democracies that emerged from these monarchies and is, in fact, a well worn principle in the United States. Sovereign immunity is the reason, for example, that when Firestone makes tires that are allegedly unsafe, people can and do sue them. When the government passes fuel mileage standards that, according to a recent Harvard study, cause several thousand additional deaths each year, however, don’t even think about suing the government. The case will be thrown out without a second hearing on grounds of sovereign immunity.

In his recent book, Feeling Your Pain: The Explosion and Abuse of Government Power in the Gore Years, James Bovard noted the extraordinary claim made by the Justice Department after the Ruby Ridge fiasco in which FBI agents used unconstitutional rules of engagement to shoot any armed individual on sight.

After investigating the shooting, an Idaho prosecutor indicted an FBI sharpshooter who had shot and killed an unarmed woman. Justice Department lawyers actually argued in federal court that federal agents were immune from state or local prosecution for any alleged crimes they committed while acting in their role as federal agents. The scary thing is that the federal judge agreed that as long as a federal agent had a “reasonable belief” that he was acting legally on orders from superiors, any alleged crimes he committed could not be prosecuted by state or local authorities.

As Bovard writes of the Clinton administration — and you could substitute pretty much most every other presidential administration this century,

Another Clinton legacy is a two-class system in America: those whom the law fails to restrain, and those who it fails to protect; those above the law, and those below it; those for whom there is “not controlling legal authority,” in Vice President Gore’s famous words, and those for whom there are few, if any, constitutional protections. … The notion that “the king can do no wrong” permeated the Clinton administration’s legal and public relations defense strategies.

    It finally happened. Anti-capital punishment activists started to get on the bandwagon of Ricky McGinn, who is scheduled to be executed in Texas. In 1995, McGinn was convicted of raping and murdering his 12-year-old stepdaughter, Stephanie Flanary.

    DNA testing had been done previously on pubic hairs and semen found on the body of the victim, but the tests at that time were inconclusive. McGinn, who maintains he’s innocent, wanted to have the material re-tested using more accurate tests that are now available. The state of Texas denied such an avenue, but Gov. George W. Bush gave McGinn a 30 day reprieve to conduct the testing.

    And the results apparently show what prosecutors maintained all along — the pubic hair belongs to either McGinn or a very close maternal relative of his. This pretty much puts the nail in the coffin for McGinn, and in the long term for the anti-capital punishment movement.

    Capital punishment foes like to tout new polls showing that support for the death penalty has declined in recent years — today only two-thirds of Americans support capital punishment despite the well-publicized incidents of innocent people ending up on death row. That’s down from a high of 80 percent a few years ago. Most of that drop can probably be ascribed to the question over guilt and innocence, but DNA testing is going to take care of all their fears.

    Already smart death penalty supporters are taking the obvious step to secure the future of capital punishment — they are pushing for laws to grant those convicted of capital crimes additional appeals to resolve DNA-related evidence issues. Once that is in place and Americans are assure that, wherever possible, DNA testing is done to make sure that the odds of an innocent person are astronomically low, support for capital punishment will again reach into the 80 percent range. In fact, with the advent of widespread DNA testing I wouldn’t be surprised to see capital punishment instituted in many states that currently don’t execute criminals. (such as Michigan, where I live).

    Although the anti-capital punishment forces have done an excellent job of winning individual battles and freeing innocent people from death row, but they’ve lost the war for the hearts and minds of the American people on the morality of the issue. The coming use of DNA to reduce the risk of executing innocent people will only further cement the pro-execution stance of most Americans and put the anti-capital punishment movement back at square one.

    I don’t know if I qualify since I’m not a liberal, but conservative Lowell Ponte has a challenge for “liberals” who oppose the death penalty in a recent article of his (Executing the Death Penalty):

One Lowell Ponte alternative – liberal death penalty opponents, as I have argued for 20 years on talk radio, should be able to sign an agreement, wear a button, and post a sign on their homes declaring that nobody who murders them should be subjected to the death penalty. Liberal politicians in particular should put their lives where their mouths are by publicly declaring anyone who murders them exempt from this ultimate punishment.

    Like I said, I’m not a liberal, and I would really prefer not to be murdered, but if I were murdered I would definitely not want the guilty party executed. Hell, just for Ponte’s sake, I’ll also declare that I would not want any suspects in my murder subjected to torture. Nor would I want I want police to coerce a confession from my killer (I guess that puts me right in the Dukakis liberal camp).

    I would like my killer to spend the rest of his natural life in jail, to be sure, but is it really so hard for diehard proponents of capital punishment to get it through their skulls that empowering the state to kill is the last thing conservatives should be fighting for? Capital punishment is wrong — it grants to the state a right that no individuals possess. Certainly people have a right to defend themselves up to and including the use of deadly force, for example, but capital punishment is the equivalent to the cold blooded murder of a subdued criminal.

    On the other hand, Ponte is correct in his assessment that my view is in the minority, and largely for the reasons he points out — the ridiculous arguments made by some opponents of capital punishment. Is the death penalty racist because blacks make up a disproportionate number of those on death row? That might be the case if blacks didn’t also make up a disproportionate number of murderers (in fact based on the conviction rates of murder for blacks and whites, blacks murderers are actually less likely to receive the death penalty than white murderers). And don’t even get me started on Mumia Abu Jamal.

    But just because most of the typical arguments offered against capital punishment are wrong doesn’t make the death penalty right. There may be a lot of nonsense floating around the anti-death penalty camp, but that doesn’t make the state’s cold blooded killing of an unarmed person morally correct. The death penalty should be abolished and replaced with life without parole for particularly egregious murders.