Printable Version Send A Letter To The Editor Discuss In the Forums E-Mail To A Friend Dig Deeper (new)

In doing so, Ryan indefinitely extended Illinois’ three-year moratorium on executions (unless incoming Democratic governor Rod Blagojevich works to revive it, which is unlikely) effectively reducing the number of death penalty states from 38 to 37.

Four days before, I sat down to take my criminal law exam. After having endured a week of three-page long fact patterns, bleary-eyed and zonked on caffeine and Advil, I somehow blundered my way through essays about robbery and RICO. You can imagine my relief when I arrived at the last question, only one sentence long: “If you could change anything about the criminal law, what would it be?”

I guess Governor Ryan and I had similar issues on our minds. The night before my test, while trying to wind down, I read an article in the New Yorker by Scott Turow, the popular legal author; Turow was appointed to Ryan’s commission on the death penalty, and ultimately reached the conclusion that it should be abolished.

For most of my life, I would have disagreed. When I was 16, I addressed my high school rhetoric class (in Illinois, incidentally) on the subject. In my speech, I lauded the benefits of deterrent effects, noted the agony suffered by families of victims who have to live with the reality that someone who raped their sister or murdered their son is allowed to remain alive, and assaulted the drain on taxpayer dollars.

But I have since learned that it’s just not that simple, or at least not across the board. Studies have shown that victims’ families are not as comforted by execution as one might think, that it costs more to have the death penalty than abolish it, and that it’s not much of a deterrent.

More disturbingly, reputable research has pointed out discriminatory practices in death penalty cases. For example, a study conducted by the New Jersey Supreme Court found that “there is unsettling statistical evidence that cases involving killers of white victims are more likely to progress to a penalty phase than cases involving the killers of African-American victims.” In the federal system, 80 percent of death penalty cases between 1988 and 2000 involved racial minorities as defendants.

I am by no means convinced that every one of these studies should be taken at face value; but I am concerned that courts are barred from considering them at all. In the landmark case of McCleskey v. Kemp (1987), the Supreme Court (whose decisions are binding in all other courts) opted against construing death penalty laws — including those which may promote or allow discrimination — as unconstitutional or in violation of due process. The court declared that mere “results” of studies, without evidence as to discriminatory intent, is insufficient to merit such a finding.

But the thing is, you can’t really ever discern a jury’s intent in any way besides analyzing their verdicts. Juries, unless explicitly directed by a judge to do so, don’t have to explain themselves or how they got to their ruling. In death penalty cases, they have to consider aggravating and mitigating factors in determining the defendant’s fate; but we can never know if for a racist juror, an aggravating factor may have simply been that the defendant killed a white person or was himself a minority.

Even more disturbing than the potential for discrimination is the possibility of innocent killing. I have faith in the justice system for the same reason I have faith in our government as a whole.

The government has innumerable vehicles to check and balance the potential misdeeds of other elements — not, to be sure, because these systems are error-free. In the justice system, there are appeals, reversals, motions for dismissal, motions for new trials, habeas petitions and the list goes on. But in a death sentence, there’s no going back. Killing one innocent American is too egregious to justify the executions of 1000 rabid murderers.

Some states allow the death penalty under the felony murder rule. Basically, the felony murder rule states that individuals who are involved in committing crimes in which no murder was planned but a death was precipitated, are liable for the murder of the person. In many states, the felony murder rule is punishable by death.

For example, say two men commit a robbery, and the police try to stop them. Robber #1 shoots at cop #1, and cop #1 shoots back at bank robber #1, but accidentally kills his partner, cop #2. On these facts, bank robber #2 — who never fired a single shot — can be put to death for an act that he never even contemplated committing.

Finally, there’s the notion of rehabilitation: Is it really fair, even from a retributive perspective, to kill people because they have killed others, even if those people stop being killers?

But then again, what about the snipers and the terrorists? Who didn’t breathe a sigh of relief the day Tim McVeigh was given a lethal injection? What about a man Turow discusses, Henry Brisbon, who fired a shotgun into the vagina of an innocent woman and then killed a fellow prisoner while in jail? If you think like I do, not killing these people bothers you enough to shy away from eliminating the death penalty altogether.

Here’s what I suggest: Restrict the option of execution to those who have committed repeat capital offenses, using a framework similar to California’s three strikes policy. If someone has killed three times before initial arrest or kills after or during a sentence for a previous capital offense, they should be eligible for the death penalty. Such people are unlikely to be rehabilitated, and are certainly unlikely to be innocent.

For unlawful enemy combatants who commit crimes against the United States, the death penalty should stand inviolate; but the threshold of guilt should remain “beyond a reasonable doubt,” adjudicated in a forum that ensures fairness to the accused.

But for first-time offenders, some of whom may never have even thought about killing, the death penalty must go. Hopefully, the recent decision in Illinois will inspire more Americans — legislators and citizens alike — to revisit their own feelings.

Alan Isenberg is a first-year law student who usually writes about international affairs, but has no idea what’s going on the world right now because law school finals have insidiously taken over his brain. He’ll be back to his old ways in two weeks. E-mail him at ai5@stanford.edu.

	Iraq: If inspections don’t work, what should we do next? (November 20, 2002)
	The axis of confusion: undoing the N. Korea-Iraq analogies (November 7, 2002)
	Feeding crocodiles: Why you can't 'fight terror with peace' (October 23, 2002)

	Graduate-student advising in need of reform
	Legal at 18, loaded at 21
	Letters to the Editor
	United States should revisit the death penalty

Post A New Comment