Stone Him!

(Cartoon by Joel Pett, published 5/4/14 in the Lexington Herald-Leader and featured at McClatchy DC.  Click on image to enlarge.)

I keep waiting for the people of this country to finally be so shocked by yet another botched execution that the death penalty will become a shameful action relegated to the past.  Obviously the time hasn't yet come.  After the latest horror story in Oklahoma, the most people are willing to concede is that death by lethal injection can be awfully painful, and maybe we ought to find a more "humane" way for the state to kill.

Here's how some state officials reacted to that latest execution as noted in McClatchy DC:

After a grisly history of electrocutions, gassings, hangings and firing squads, it is the cold, quiet science of lethal injections that has become America's most common and favored method of executing its worst criminals.

The U.S. Supreme Court ruled six years ago that such injections did not violate the Constitution's provisions against cruel and unusual punishment, clearing the way for states to administer the lethal cocktails under their own, sometimes secretive, protocols.

But a gruesome lethal injection gone wrong in Oklahoma has dealt death penalty supporters a potentially stunning setback this week, coming at a time when popular support for capital punishment has fallen and reliable lethal-injection chemicals are becoming harder and harder to get.

Clayton Lockett's unwieldy execution has triggered an already controversial internal investigation and prompted calls for a lethal-injection moratorium across the U.S., with experts predicting the Supreme Court will face greater pressure to rule on whether states can refuse to tell inmates the makeup of the drugs that are being used to end their lives.

"The public has a right to know how we are carrying out this very grave responsibility of the state," said Oklahoma state Sen. Connie Johnson, one of several state lawmakers calling Wednesday for a yearlong moratorium on executions in the state. "This is the worst thing that the government does. This ought to be the most transparent."   [Emphasis added]

Execution for the commission of a crime, any crime, is barbaric.  The language used in the article (especially the part I've emphasized) makes the point beautifully, and (I suspect) that is the point.  Most civilized nations have outlawed it, and I don't see how their murder rates have soared as a result.  Clearly the death penalty is not a deterrent.  It is a form of revenge, and we ought to be beyond that phase.

At this point, I guess the most we can hope for is that less painful, gentler method of committing state sanctioned murder that I mentioned at the start.

Kyrie Eleison.

Read more here: http://www.mcclatchydc.com/2014/05/02/226301/botched-oklahoma-execution-sparks.html#storylink=cpy

A Thirst For Revenge Is Not A Virtue

(Graphic snagged from What Would Jack Do, a blog which you should visit regularly, as in daily.)

As I mentioned yesterday, California has a whole bundle of propositions to go along with candidates on the ballot.  One that has me particularly hyped-up would end the death penalty in California, something I think is long overdue in a civilized state in a civilized nation.  The death penalty has nothing to do with justice and everything to do with revenge, not one of the nicer parts of the human psyche.  It's like slapping your seven-year-old son for slapping his five-year-old sister and then telling him that "hitting is bad."  It's like saying that there is no such thing as redemption, or of the possibility of change.  One strike is all you are allowed.  "An eye for an eye ..." means we'll all soon be blind.

And yet, people continue to support the death penalty, here in California and across the nation, even with new standards of evidence (DNA tests) showing repeatedly that there are innocent people on death row.  Dan Turner had an interesting opinion piece in the Los Angeles Times dealing with such a situation in Texas, although DNA evidence wasn't involved, merely forensic evidence which became available after the trial.  Gov. Rick Perry, erstwhile candidate for president, still allowed him to be executed, continuing the long tradition of killing people and letting God sort them out.

Perry's popularity dipped at home after he dropped out of the race, but something else lurking in his past could cause worse than a downturn in his poll numbers. Perry, it turns out, not only stood by while his state's executioners took the life of a man widely believed by forensics scientists to have been innocent, he later acted to prevent evidence of that innocence from seeing the light of day. He oversees a state whose procedures for reviewing inmate appeals are a national disgrace and that may, if the case of Cameron Todd Willingham is ever given a fair hearing, prove to be the home of the first execution of a factually and legally innocent person since the advent of the modern judicial system.

Read the entire article to see what evidence is being suppressed even as Willingham's family is requesting a posthumous pardon.

But if that isn't enough to persuade Califorrnia voters, the editorial board of the Times has suggested a more pragmatic reason -- cost.

Courts are not 100% reliable, and although there's little doubt that most death row inmates are reprehensible people who may deserve their fate, there is no knowing whether all 725 of them are guilty. That's why the appeals process is so long, burdensome and expensive, and it's why voters should end the risk that California will execute an innocent person.

One well-respected study found that the death penalty costs California taxpayers $184 million a year in court and security expenses. That's a high price to pay for a sentence that hasn't been carried out since 2006. Seventeen states and the District of Columbia have abolished the death penalty. California should join them, and will if voters of conscience and common sense turn out and do what's right.

But, then, I'm old.  As I look back over my life and the incredibly stupid mistakes I've made, I find that I'm more interested in mercy than in justice, especially justice as it is practiced in this sphere.

Two Different Trials

This past few months two criminal cases have riveted my attention. Both involve allegations of unspeakable acts. Both have received huge press coverage all over the world. And both are now in the hands of those who must make the decision. What is so interesting to me is that the two are taking place in different countries, each with their own system of jurisprudence and penalties.

The first is the trial of former Penn State assistant football coach Jerry Sandusky for allegedly molesting young boys for decades. He has pleaded innocence. He is facing 48 counts, and the case went to the jury (which was immediately sequestered) on Thursday. Shortly after the sequestration, a report that Sandusky's adopted son had come forward and volunteered to testify as to his own molestation by his adoptive father. After several weeks of devastating testimony from other victims and a 'trial balloon' defense of mental illness, the defense was reduced to attacking the veracity of the prosecutor's witnesses and suggesting they were only in it for the money they could receive by suing Penn State.

Last night the jury issued its verdict: guilty of 45 of the 48 counts. Sentencing will be done several weeks from now. Sandusky is 68. After appeals, if he loses, he will in effect have a life sentence.

The second is the trial in Norway of Anders Behring Breivik for the killing of 77 people in that country. Breivik has admitted that he killed all of those people, claiming that he committed these acts to save his country from the ravages of multiculturalism and Islam.

From the Los Angeles Times:

Final arguments in the trial of Anders Behring Breivik, the self-confessed Norwegian killer of 77 people, ended Friday, and the question of his sanity was in the hands of a five-judge panel expected to rule in August.

Breivik has admitted that he carried out last July's bombing of a government building in Oslo that killed eight people and later the same day shot 69 people to death at an annual gathering of the Norwegian Labor Party's youth group on the nearby island of Utoya. [Emphasis added]

Now, here is where it gets interesting for us Americans. Norway does not have a death penalty, so that is not in issue. What is in issue is Breivik's sanity, only instead of it being raised as a defense by his attorneys, it is being raised by prosecutors because of the penalties which apply.

He faces a maximum allowable sentence of 21 years in prison, which can be extended indefinitely if he is considered a danger to society, or commitment to psychiatric care until deemed safe for release.

Breivik claims he acted out of political idealism to defend ethnic Norway from multiculturalism and Islam and should be judged as a sane human being. [Emphasis added]

If he judged sane, the most Breivik would be sentenced to is 21 years, with a hearing thereafter to determine whether he could be safely released. If he is judged insane, he could be held longer, even indefinitely, until he is deemed safe to release. His attorneys argued for his sanity and for a minimum sentence.

But the point is that the Norwegian system leaves room for rehabilitation, something which does not often (if ever) enter into sentencing decisions in this country. While I must admit that I doubt that Breivik will ever be safe to return to society, I think there is always a chance that he might actually be rehabilitated. That's not an option in the US. With this many murders, in a state with the death penalty, he would receive it. In a state which no longer has the death penalty, he would receive the sentence of life without the possibility of parole. That's because our system has devolved to one of retribution, of revenge.

I think I like the optimism of the Norwegian system better, but then I'm a soft-headed old woman.

Not So Equal, Not So Protected

I've long opposed the death penalty, primarily because I don't believe the state should be in the business of killing people for killing people. There are other reasons for opposing the ultimate punishment, of course, and the editorial board of the Los Angeles Times reminds us of that:

Among the compelling arguments against capital punishment are its inherent brutality and its potential for error. But documented patterns of racial discrimination in sentencing are also well established and deeply troubling, particularly in cases in which the crime victim is white. A 2005 study of homicides in California from 1990 to 1999, for instance, drawing on FBI data, found that 2.1% of the offenders suspected of killing non-Latino whites were sentenced to death, compared with only 0.68% of those suspected of killing non-Latino African Americans.

North Carolina had hoped to offset that disparity:

In 2009, North Carolina's Legislature passed the Racial Justice Act, which allows defendants to make the case — at a pretrial hearing or after conviction — that statistics show that the death penalty has been imposed significantly more often on defendants in their geographical area because of their race or that of the victim. (Similar legislation was introduced in California in 2010 but languished in committee.) If the judge determines that race has been a factor — not in the individual case but statistically — then the death sentence may not be sought or would have to be vacated. Instead, the defendant would be sentenced to life without parole.

That was a rather dramatic, yet sensible approach. Unfortunately, Republicans now control the state's legislature and are busy trying to scuttle the law. While more overt forms of racism are gradually being weeded out, the less visible and often unconscious forms are still in play, which means that the punishment for the same crime differs based on race and/or ethnicity, a violation of the Equal Protection clause.

Admittedly, the use of statistical data is a departure from traditional notions of justice, which focus on the facts of the individual case. But it is possible that the system may be skewed as a whole without a judge consciously taking race into account when sentencing. Presenting statistical evidence could give a judge second thoughts about his unconscious biases. [Emphasis added]

Exactly so. It's at least a step in the right direction towards eliminating this barbaric practice.

Death Culture

Ink and electrons continue to be spilled on the assassination of Osama bin Laden. The latest revision to the story coming from the White House is that Osama was not armed when the Navy Seals broke into the room Osama was in, but he still resisted so they opened fire. That story still has plenty of gaps so I'm sure we'll be dealing with it as a lead story for at least two more days. Violent death is always a big story in our culture.

Another story on violent death played out 41 years ago. Today is the anniversary of the Kent State massacre when Ohio National Guard opened fire on student protesters at the university, killing four of them and wounding nine others. Their crime? They wanted to end the war in Viet Nam.

Both stories are notable insofar as they involved extra-judicial killings. No judge and jury were involved. While the victims in both are hardly identical, the incidents do show a comfort zone for when and where killing people is deemed acceptable or excusable, even if there has been no trial.

But what about cases in which there have been trials and the sentence is death? Does that ultimately make a difference? Are there times when state sponsored killing of civilians is perfectly acceptable? Apparently the state of California and many other states think so. The only real caveat is that the death be carried out without undue pain and suffering.

California returned to the death penalty in the late '70s, but there have been no executions for several years now because of the pain and suffering issue. The main drug in the lethal injection used by the state is no longer manufactured in the country and is in short supply worldwide, which complicates matters. There is also a federal case pending on the issue of the lethal injection mode used by the state and authorities have been scurrying to come up with a program which will pass muster.

The latest plan has hit a snag, so there will be more delays.

California officials have backed off a drive to resume executions this year, asking a federal judge to delay until at least January his review of revised lethal injection procedures.

The delay means that the state will have gone at least six years without executing any condemned prisoners, who now number 713. ...

Although other death penalty states have scaled back the number of capital charges sought in murder trials, partly out of concern for the soaring costs of maintaining capital punishment, California has bucked the national trend and continued adding to its teeming death row, the nation's largest, experts said.

I suppose the ineptness in finding a way to execute someone which passes constitutional muster is a sort of blessing, but I would much prefer that the government at all levels get out of the business of executions. Yes, there are people who have committed monstrous crimes, there are Osama bin Ladens who threaten our security, but there are surely better answers than engaging in the same act which is at the root of the sentence.

An eye for an eye leads to societal blindness. And that's what ultimately was behind Kent State.

The Hanging Judge

There is a remarkable essay up in the opinion section of the Los Angeles Times today. It is written by Donald A. McCartin, a retired Superior Court judge, who describes himself as a right-wing Republican and who is proud of the fact that he was known as a "hanging judge" when it came to the capital punishment cases he heard. Although he had long been a proponent of state-mandated killing, he now concludes that the death penalty just isn't worth the effort and the cost to society.

During that time, I presided over 10 murder cases in which I sentenced the convicted men to die. As a result, I became known as "the hanging judge of Orange County," an appellation that, I will confess, I accepted with some pride.

The 10 were deemed guilty of horrifying crimes by their peers, and in the jurors' view as well as mine they deserved to die at the hands of the state. However, as of today, not one of them has been executed (though one died in prison of natural causes).

And therein lies the rub, according to Judge McCartin. For thirty years he has watched countless appeals and retrials as the defendants asserted all sorts of theories as to why they should not be put to death by the state. He also has watched the suffering of victims' families as their wounds are reopened with each appeal and each legal decision. The judge does not object to the legal process involved, however:

... I have followed the development of legal thinking and understand why our nation's Supreme Court, in holding that "death is different," has required that special care be taken to safeguard the rights of those sentenced to death. Such wisdom protects our society from returning to the barbarism of the past. And though I find it discomfiting and to a significant degree embarrassing that appellate courts have found fault with some of my statements, acts or decisions, I can live with the fact that their findings arise out of an attempt to ensure that the process has been scrupulously fair before such a sentence is carried out.

What he objects to is the massive waste of court time and taxpayer dollars in ensuring that the process has been scrupulously fair. Knowing now what he apparently hadn't considered then, the judge admits he probably should have imposed the alternative sentence to the perpetrators of the ultimate crime: life imprisonment without possibility of parole. It would have saved untold anguish to the victims' families and millions of government dollars, dollars that the state really needs right now, and still kept the public safe.

I watch today as Gov. Brown wrestles with the massive debt that is suffocating our state and hear him say he doesn't want to "play games." But I cringe when I learn that not playing games amounts to cuts to kindergarten, cuts to universities, cuts to people with special needs — and I hear no mention of the simple cut that would save hundreds of millions of dollars, countless man-hours, unimaginable court time and years of emotional torture for victim's family members waiting for that magical sense of "closure" they've been falsely promised with death sentences that will never be carried out.

The hanging judge has changed his mind. As a left wing Democrat, his is not the argument I would use for eliminating the death penalty from our society, but it is one that is both cogent and based in fact. As such, it deserves the hearing I hope it gets from the publication by the Times.

Nicely said, Your Honor.

With Malice Toward None

On Thursday evening, Virginia executed Teresa Lewis for her role in the murder of her husband and step-son. Talk Left has a wonderfully simple but crystal clear comment on this.

California is about to re-enter the business of state-sanctioned murder as well, now that a federal judge has cleared the path, as reported in the Los Angeles Times. [Warning, the article is quite macabre, even grisly, so keep that in mind when clicking on the link.]

A federal judge on Friday cleared the way for the first execution in California in nearly five years when he refused to halt murderer-rapist Albert Greenwood Brown's death by lethal injection, scheduled for Wednesday.

U.S. District Judge Jeremy Fogel expressed concern about the limited time he had to evaluate the state's newly revised execution procedures and gave Brown the choice of being put to death by a single injection, as practiced in Washington and Ohio, instead of by the state's three-drug method.

How kind of Judge Fogel to give Mr. Greenwood the option of choosing to die with one shot or three. I guess he had to consider the method, given the various rulings that the three-drug method often failed, leading to extremely painful deaths, thus constituting cruel and unusual punishment.

For some, that was not a bug, it was a feature. The argument runs that "justice" is being served by killing those that commit the ultimate crime, but that's patently bogus. That is not justice. That is revenge, a left-over from our tribal days when an eye-for-an-eye was considered appropriate, when chopping off the hand of a thief was only fair, when stoning an adulteress was fitting. So much for the shining beacon of liberty.

I made my usual trek to Watching America yesterday and came across an editorial in Germany's Frankfurter Rundschau. It's a pretty good analysis of how our nation is viewed when it comes to our barbarous death penalty. I am violating fair use principles by quoting the editorial in its entirety.

The United States remains on its sad, lonely path, unique among Western democracies.

There’s no doubt about Teresa Lewis’s guilt, but what has American society gained now that she has been executed? Her case is a dramatic example of the arbitrariness and injustice of America’s execution mills.

Opponents of the death penalty have demonstrated for decades that the poor, members of ethnic minorities and those not mentally able to defend themselves in a court of law are sentenced to death more often than other perpetrators. In the Lewis case, where the actual killers got off with prison sentences, the injustice was especially blatant.

Optimists like to point out that the death penalty is being applied less and less in many states. Whether that’s a reflection of a change in the American political climate is questionable. The governor of Virginia, who denied Lewis clemency and ordered the execution to proceed, even wants to expand the death penalty to cover other crimes. The United States remains the only Western democracy to continue down this sad and lonely path.

And so I find yet another thing to mourn about this country, a country I truly believed had such promise. I'm beginning to understand that famously short verse in the Bible, one of the few I can actually recite accurately:

Jesus wept.

Grounds For Murder

First, I should say that capital punishment has become increasingly questionable as increasing numbers of wrongful convictions are discovered by DNA evidence. The continuation of death sentences in this society is a black mark on any claims we as a society have to decency. In the case of Jose Medellin, though, the use of execution violates our own laws.

The crime is horrible, and is guaranteed to prevent any possibility of sympathy with the criminal. Gang rape and murder of teenaged girls - by Jose Medellin. Our Justice Department has either bungled or purposely 'thrown' the case. With the amount of politicization that has been performed on the Justice Department, my vote is for purposeful protection of the White House.

Medellin was executed yesterday, and Mexico has protested. As formerly explicated here, Medellin was convicted in a trial that offered him no access to his own, Mexican, government. His is not the only case in which this occurred. Our treaty with Mexico guarantees the access. That has reciprocity, offering the same access to any U.S. citizen arrested in Mexico. The violation of our treaty with Mexico puts our own citizens in Mexico in the position of having questionable access to their own government if they are jailed.

The stories abound of U.S. citizens arrested, wrongfully, imprisoned, without access to counsel or our government, and occasionally having to be ransomed out by relatives. The treaty that Medellin's execution has violated is intended to prevent these abuses. It hasn't been safe enough to my mind for some time to travel in some areas of Mexico, but it would be much less attractive now.

The execution came after a divided US Supreme Court rejected a last-ditch appeal from Medellin's lawyers for a reprieve that would give the US Congress and Texas legislature time to pass legislation allowing the state to comply with ICJ orders.

The US House of Representatives took up such a bill after an ICJ ruling on July 16 to postpone the execution. But Congress is now in recess until September.

The US State Department said the federal government was powerless to stop the execution, citing a the March Supreme Court decision.

"This case presents a difficult situation," said Kurtis Cooper, a Department spokesman.

"We have an indisputable international law obligation that conflicts with state law," he said.

"The Supreme Court has ruled the president has neither the constitutional power nor the legislative authority to overturn the state rules."

Medellin's execution was delayed for more than three hours while the Supreme Court wrestled with his petition.

In a 5-4 decision, the majority wrote that the chance for the legislatures to take action was "too remote" to justify a stay of execution.

The majority added that the US Justice Department never asked it to intervene in the case.

"Its silence is no surprise: The United States has not wavered in its position that petitioner was not prejudiced by his lack of consular access," read the ruling.

In a dissenting opinion, Justice Stephen Breyer wrote that Medellin's execution "will place this nation in violation of international law."

Amnesty International had urged Governor Rick Perry to stay the execution.

"Even President Bush, who signed scores of death warrants as Texas governor, concurred some time ago that the United States must honor its international obligations in this case," said Larry Cox, executive director for Amnesty in the US.

"There will be no clearer sign that Texas will have gone beyond the pale than if Jose Medellin's execution goes forward."

In Mexico City, the foreign ministry said it had sent a protest letter to the US State Department, arguing that Medellin's execution was a treaty violation.

Mexico said it was concerned "for the precedent it could set for the rights of Mexican nationals that could be detained" in the United States. (Emphasis added.)

From what I have seen of this executive branch, it is no surprise the Justice Department did not enter a plea. This way, the occupied White House shows two faces, one that goes along with the treaty - while the Justice Department throws the case away by improper and inadequate procedures. The other face is its support of death penalties, by use of that politicized Justice Department to satisfy the recidivist taste for official murder, called execution. In this instance, the really vile crime has given a boost to anti-immigrant forces and put them in conflict with international treaty supporters. It gives more sympathy to the U.S. imprisoning illegal immigrants and putting them in for-profit prisons.

Once again the executive branch has involved itself in a violation of the rule of law. Once again, the Justice Department effectively counters the function it was created to serve.

Why Doesn't the U.S. Accept the International Criminal Court?

The case of José Medellin, who didn't get access to the Mexican consulate so had his execution sentence ruled against by the Supremes, still stews. Texas continues to push for the death of a convicted criminal, and depends on the brutality of the crime to whitewash the damage it does to treaties and those protected by them. Someday, I may be traveling abroad. If I am arrested I might want access to my country's representatives. The precedent this sets may keep me from having it.

Despite the horrific nature of the crime, defense attorney Donovan said it "would be fundamentally unjust" for Gov. Perry to not respect the commitment made under the treaty "by the American people as a whole."

"In Texas, like the rest of the United States, a deal is a deal," he said.

And, he added, Americans overseas could face consequences. "I think the people of Texas, just like the rest of the American people, would not want Texas to do anything that would jeopardize the safety of Americans living, traveling, and working abroad."

'Profoundly wrong'

Despite Mr. Perry's determination not to halt the execution, Mr. Donovan seems confident the lethal injection will be stopped. "For Texas to go forward would be profoundly wrong," he said. "And we believe if Texas insists on going forward with this execution that a Texas court or a federal court will step in, including the Supreme Court."

Others doubt the political pressure or legal maneuvers will have much effect at either the state or national level.

The status of a treaty in conflict with a state's findings may be a difficult decision, but with its history of wrongful convictions, Texas should be very, very careful how it proceeds. The very ugly head of racism has been obvious in the discussion of this case, and the references to illegals often contain mention of crime against U.S. citizens. Killing to satisfy anti-immigration feelings is a threat to all justice.

Olympic Torture

Sometimes we have friends that help us out. Sometimes we have friends who embarrass us. This time we have friends that are rivaling the occupied White House in barbarity.

China is getting ready for the games. It can't guarantee clean air, but it's giving new meaning to the adage that 'heads will roll'. A plot to disrupt the Olympics is supposed to have been detected, so it executed some of the purported plotters.

CHINA has reverted to public executions on the eve of the Olympics as part of a massive security operation mounted to protect the Beijing Games from what Communist Party authorities describe as an urgent threat of violence and anti-government protest.

The Washington Post reported at the weekend that three young men were shot shortly after dawn in the city of Yengishahar in Xinjiang - the mainly Muslim region of northwestern China.

"The local government bused several thousand students and office workers into a public square and lined them up in front of a vocational school," the Post reported. "As the spectators watched, witnesses said, three prisoners were brought out.

"Then an execution squad fired rifles at the three point-blank, killing them on the spot."

The men were among 17 people convicted in nearby Kashgar of being members of the outlawed East Turkestan Islamic Movement.

The cretin in chief will fit right in at those opening ceremonies. Next we'll be hearing of rendition as the new event, perhaps, a propos memos from Prof. Yoo and trials to be held at Gitmo. The Torture Olympics it is.

I expect the White House will have No Comment on these preparatory events as it plows new depths in conduct of foreign affairs as well as in conduct, generally.

Justice Allayed

Recently, I posted about a local case, and a man who was sentenced to death. Recently, another man has been accused of the crime by those close to that recently accused person. DNA evidence has been called for. I recounted some of the details of this case recently, in a post against capital punishment.

The prosecutors and judge are very reluctant to call off that scheduled execution. It's human nature, I suppose, to defend yourself when it seems you've been wrong. When a life is at stake, though, it would seem you'd be very cautious. Seems isn't what always occurs, though.

The execution of Lester Bower has been stayed. Judge Jim Fallon has withdrawn the death warrant, while lawyers argue whether DNA testing of the evidence is just.

District Attorney Joe Brown says this does not mean Bower will not be executed. If the judge denies the DNA request, or if DNA testing is done and nothing new is found, then the execution will most likely be re-scheduled.

On October 8, 1983, four men were shot to death at an ultra light airplane hangar East of Sherman.

Lester Bower, who was living in Arlington, was convicted on four counts of capital murder. Reports show authorities said bower killed the men after they showed up at the hangar, while Bower was attempting to steal an ultra light.

Now 60 years-old, Bower has been on death row since 1984. Until Tuesday, his execution date was set for July 22, 2008. Bower's attorneys have requested DNA testing of the evidence, a move District Attorney Joe Brown says might have been done to delay Bower's execution.

"This is the kind of tactics you get from east coast law firms that come in on these death penalty cases." "It's been long enough. These families have wanted long enough, and this kind of motion is something that could have been filed long ago when DNA testing was first available."

Brown says it couldn't have come at a worse time for the victims' families. "One of them greeted us with tears. They are sad and frustrating and we tell them we're going to keep working on it and move as quickly as we can."

According to the Grayson County website, a hearing is scheduled for July 17th to determine if DNA testing will be done on the evidence. (Emphasis added.)

Calling up prejudices against the effete intellectual (to quote Spiro Agnew) east coast indicates to me that some one is on the defensive, who ought to be fully engaged in the administration of justice.

Incidentally, right wing religious groups were heavily involved in the election of DA Brown, who defeated a very good former DA who was a Democrat of liberal bent. Brown supposedly is a pro-lifer, maybe lifer has a different meaning to him.

I am impressed that DA Brown is an avowed winger evangelical, and so determined that death should be administered because of his opinion, not evidence. In Dallas, the recently elected liberal District Attorney, Craig Watkins, is breaking ground that everyone can admire in opening evidence files to investigation, and massively overturning unjust sentences.

As Diane posted earlier, the Declaration of Independence called for ending the domination of England for many reasons, among them the maladministration of justice.

The death penalty should never be administered without the full investigation of the crime. This is another case that argues against the use of capital punishment at all, in a system so flawed, by elected officials.

Life Isn't Retroactive

The Supreme Court hasn't made that many decisions I feel strongly able to support, but in the decision yesterday to rescind death penalties for child rape, I totally agree. There is no going back on death. Convictions for all sorts of crime, even child rape, and even murder, have increasingly been overturned on grounds of DNA evidence. It happened in Collin County, suburban Dallas, yesterday.

A court threw out the conviction of a man infamously known as "Ashley's Killer" on Wednesday, weeks after prosecutors surprised defense attorneys with news of another suspect in the 1993 child slaying.

The Court of Criminal Appeal in Austin, as expected, set aside the guilty verdict and death sentence given to Michael Blair, upholding a lower-court ruling made last month.

The ruling comes less than a month after prosecutors acknowledged that DNA evidence does not implicate Blair and shows that another man, now deceased, is a plausible suspect in the girl's death.
(snip)
Blair was convicted largely on the strength of since-discredited testimony about hair and fibers found in his car, on a stuffed animal and on the girl's body that all allegedly matched, court records show. At the time of the slaying, Blair was on parole after serving only 18 months of a 10-year sentence for burglary and indecency with a child.

Subsequent testing was performed on male DNA found on the Plano girl's shoes and shirt, as well as on tissue taken from the victim's fingernails and hair. All of these DNA tests excluded Blair as the contributor, court records show.

The man was guilty of crimes but his death would have been an irreversible unjust punishment. We have to remember when judging anyone that there are pressures in the justice system, and in Dallas our former prosecutors were building a reputation very important to them, of being able to get convictions. We will never know all the ways they achieved those convictions, but we do know that many were wrongful ones.

Justice Kennedy also wrote that capital punishment for child rape presented specific problems, including the “special risks of unreliable testimony” by children and the fact that the crime often occurs within families. Families might be inclined to “shield the perpetrator from discovery” when the penalty is death, he said, leading to an increase in the problem of under-reporting of these crimes.

This is hardly the first time this blogger has discussed the death penalty. It is also far from the first time a death penalty has turned out to be a miscarriage of justice.

Capital punishment has been thoroughly discredited as findings increase that convictions are too often erroneous. Taking a life on the evidence of witnesses has too often been a tragedy carrying faults of a system to a conclusion that defies, instead of effects, justice.

Death Took A Holiday ...

... but the vacation is over.

Last week, Ruth commented on the Supreme Court decision which held the Kentucky cocktail for execution was not cruel and unusual punishment. She predicted that her home state would greet the decision with an uptick in executions:

The U.S. Supreme Court yesterday ruled that the state of Kentucky could administer a three-drug cocktail which has proved to be painful in some cases, to cause death for the condemned. In Texas, where many executions have been on hold, this makes many convicted prisoners closer to death.

Like Ruth, I find the death penalty both barbaric and execrable. My objections (and I suspect Ruth's) are based in ethics and morality. For the state to take a life as a punitive reaction is about as sensible as a mother slapping one child for slapping another and saying, "Stop that! Hitting is bad." Unfortunately, we are in the minority, or, more likely, in the unenviable position of being among the powerless right now.

That's why this op-ed column by Rudolph J. Gerber was so refreshing. Here's his CV as provided by the SacBee: "a former prosecutor, trial judge and a judge of the Arizona Court of Appeals for 13 years, [he] teaches at Arizona State University. He drafted Arizona's death penalty law." Not exactly your limp wristed DFH, eh?

What Mr. Gerber has done is provide a thoroughly grounded pragmatic approach to the issue and has concluded that maybe the death penalty is not such a useful idea and perhaps should be scrapped. I am, of course, not doing justice to Mr. Gerber's argument, but short of simply reproducing the entire column (or, heaven forfend, just providing a link and urging you to march on over), that's the best summation I can give.

Perhaps combining the ethical with the practical may be the best approach in these bottom line days. Here's some of Mr. Gerber's argument:

According to a recent report, in a state with more than 660 men and women on death row, California spends an estimated $117 million per year on death penalty cases that are in the judicial review process and at least $20 million annually on capital trials. On average, California carries out one execution every other year. In Georgia, the death penalty has drained the public defender system dry. One capital case can bankrupt a county, and the chances of execution for even those who are sentenced to death remain low. The average time between sentencing and execution is more than 10 years, and in many states such as California it takes much longer. And because of the exposure of glaring mistakes in the past, there is little prospect that the death penalty will become swifter or cheaper in the foreseeable future. ...

The halt in executions does demonstrate that the death penalty is not essential to our society. Many people are probably unaware, as its absence has no effect on people's daily lives, that the death penalty has been on hold since September.

The cases, however, are stacking up. At some point, executions may resume in greater numbers than we have been used to. This present period of quiet could be used to reflect on whether the death penalty is doing us any good.

Only 10 states had executions in 2007. The overwhelming number of executions carried out occurred in just one state – Texas. Are the residents of those states with no executions any less safe than the inhabitants of the few states in which executions occurred?

Several states, including New Jersey, New York, and California have either done away with the death penalty or are revisiting the statutes because of the costs attendant to the appeals accorded the defendants. Individual counties have to provide the costs of the captial trials and appeals and that money just isn't there anymore. Without that kind of assistance, poor defendants are deprived of due process, and, even with this Supreme Court, that just isn't going to fly constitutionally.

Given the costs attendant to a penalty which more often that not ultimately results in the alternative penatly, life without parole, the death penalty just does not make sense on all sorts of grounds. As Mr. Gerber points out, now is the perfect time to consider that:

...The death penalty is overdue for examination as a public policy – its burdens and alleged benefits should be fairly weighed. For many years, we have only considered the death penalty in theory – whether it might be appropriate for the most horrible crime. But the death penalty in practice is what needs to be examined....

Hopefully reasonable people will do just that.