The conservative case against capital punishment

As the President talks about expanding capital punishment to drug dealers, and Oklahoma resorts to increasingly desperate measures to carry out the ultimate punishment, Sarah Quinlan of RedState.com makes the unimpeachable case that anyone who supports limiting the power of the state should oppose giving the state the power to take a life:

On March 14, the Daily Beast published the story of Carlton Michael Gary, who in 1986 was sentenced to die for rape and murder (and who investigators say was linked to a 1975 New York murder, though no charges were ever filed). Police claim they discovered his fingerprints at three (of seven) victims’ homes, and the sole survivor identified him. However, DNA tests determined semen at the survivor’s home does not belong to Gary; the survivor mistakenly identified another man first; and footprints did not match Gary’s shoe size. Yet Gary was executed on March 15.

Last year, Arkansas executed Ledel Lee, a man with significant intellectual deficits, despite discrepancies between the crime scene and the eye witness’ version of accounts, and forensic evidence did not match Lee.

In 2004, Texas executed Cameron Todd Willingham after he was convicted and sentenced for allegedly setting a fire that killed his three daughters. The New Yorker covered his story in 2009, and it is still well worth the time to read it today: Even during his life, there was controversy regarding the arson investigation and evidence used to convict him, and subsequent reports after his execution have since found even more inconsistencies and problems. Willingham maintained his innocence until his death.

One innocent person wrongfully executed is one too many. One person taken off of death row after being exonerated demonstrates the government cannot be trusted with this power. How can the same people who rightfully view the state with suspicion now put faith and trust in the government to get this right every single time, when the stakes are so high? The cost of being wrong is truly unbearable.

Two stories about capital punishment

“Study: 1 in 25 death penalty cases likely innocent”

About one in 25 people imprisoned under a death sentence is likely innocent, according to a new statistical study appearing in the Proceedings of the National Academy of Sciences. And that means it is all but certain that at least several of the 1,320 defendants executed since 1977 were innocent, the study says.

From 1973 to 2004, 1.6 percent of those sentenced to death in the U.S. — 138 prisoners — were exonerated and released because of innocence.

But the great majority of innocent people who are sentenced to death are never identified and freed, says professor Samuel Gross of the University of Michigan Law School, the study’s lead author.

The difficulty in identifying innocent inmates stems from the fact that more than 60 percent of prisoners in death penalty cases ultimately are removed from death row and resentenced to life imprisonment. Once that happens, their cases no longer receive the exhaustive reviews that the legal system provides for those on death row.

[…]

Death sentences represent less than one-tenth of 1 percent of prison sentences in the U.S., but they account for 12 percent of known exonerations of innocent defendants from 1989 to 2012. One big reason is that far more attention and resources are devoted to reviewing and reconsidering death sentences.

“The high rate of exoneration among death-sentenced defendants appears to be driven by the threat of execution,” says the study. “But most death-sentenced defendants are removed from death row and resentenced to life imprisonment, after which the likelihood of exoneration drops sharply.” The study estimates that if all defendants sentenced to death remained in that status, “at least 4.1 percent would be exonerated. We conclude that this is a conservative estimate of the proportion of false conviction among death sentences in the United States.”

Oklahoma stops execution after botching drug delivery; inmate dies

A vein on an Oklahoma inmate “exploded” in the middle of his execution Tuesday, prompting authorities to abruptly halt the process and call off another execution later in the day as they try to figure out what went wrong.

The inmate, Clayton Lockett, died 43 minutes after the first injection was administered — according to reporter Courtney Francisco ofCNN affiliate KFOR who witnessed the ordeal — of an apparent heart attack, Oklahoma Department of Corrections Director Robert Patton said.

That first drug, midazolam, is supposed to render a person unconscious. Seven minutes later, Lockett was still conscious. About 16 minutes in, after his mouth and then his head moved, he seemingly tried to get up and tried to talk, saying “man” aloud, according to the KFOR account.

Other reporters — including Cary Aspinwall of the Tulsa Worldnewspaper — similarly claimed that Lockett was “still alive,” having lifted his head while prison officials lowered the blinds at that time so that onlookers couldn’t see what was going on.

Dean Sanderford, Lockett’s attorney, said that he saw his client’s body start “to twitch (and) he mumbled something.” Then “the convulsing got worse, it looked like his whole upper body was trying to lift off the gurney.”

Admittedly, no one has suggested that Lockett is innocent didn’t carry out the truly horrendous crime for which he was convicted.  But unless something changes, it’s only a matter of time before an innocent person is tortured to death by the state.

It’s dirty work (and lawyers get to do it)

Canadian Lawyer‘s Gail Cohen praises the late Doug Christie for representing people many lawyers wouldn’t touch:

Christie, often called The Battling Barrister or Counsel for the Damned, became notorious for his defence of some of the most reviled hatemongers in the country. His clients included holocaust denier Ernst Zundel, former Nazi guard Michael Seifert, fascist John Ross Taylor, and white supremacist Paul Fromm. Christie studied law at the University of British Columbia and rose to prominence in the mid-1980s defending James Keegstra, a schoolteacher fined $5,000 for willfully promoting hatred against Jews by teaching his students the Holocaust never happened and that a Jewish conspiracy controlled world affairs.

Christie was strongly criticized by anti-racists, had rocks thrown at him, and his office windows were smashed so many times he had to board them up. Once, someone drove a truck through his office. He was a polarizing figure, there’s no doubt. Christie, along with Ottawa lawyer Richard Warman, were the subjects of Canadian Lawyer’s March 2009 cover story “War of the Words,” which looked at the battle between the free speech advocate and the push for laws outlawing hate. Warman would not consent to have his photograph taken with Christie, going as far as insisting we note in the article that the two men had been photographed separately.

Many of his critics insisted Christie held the same repugnant beliefs of those he defended in the courts but other than his desire to separate the Western provinces from the rest of Canada, his personal beliefs were never really out there on display. Until the end, Christie insisted he was defending those who others wouldn’t. In one of the last interviews he gave before passing away, he told Canadian Lawyer writer Jean Sorensen, “I take cases on principal – I don’t care how long they take or if it costs me.”

[…]

Even the professional regulator saw that Christie was willing to do what most other lawyers weren’t. When the B.C. lawyer got into trouble with the Law Society of British Columbia over some questionable subpoenas, his contribution to society was recognized. Christie was found guilty of professional misconduct but in assessing costs, the hearing panel tried to keep them as low as possible so it didn’t affect Christie’s ability to practise. “The Panel recognizes the Respondent’s valuable contribution to our free society and wants to enable him to continue with his work, which he has often done pro bono or for greatly reduced fees.”

Whether you agreed with Christie or not, he played a pivotal role in the free speech debate in Canada. There have to be lawyers who are willing and able to fight for those no one wants to fight for. It’s the essence of a free and tolerant society. Who, now, will rise up to take his place and defend those people, even if it means possibly being on the wrong end of a thrown rock?

Actually, there’s not much doubt that Christie did indeed support the causes promoted by his extreme-right client base.  But he did what a lawyer is supposed to do: stand up against the power of the state when that state threatens to infringe upon someone’s liberty.

In most cases, this is precisely what lawyers are doing when they take on clients who have engaged in particularly repugnant behavior.  Another example: the Ohio attorneys trying to keep convicted killer Steven Smith from being executed for an undeniably appalling crime.

Condemned killer Steven Smith’s argument for mercy isn’t an easy one. Smith acknowledges he intended to rape his girlfriend’s 6-month-old daughter but says he never intended to kill the baby.

The girl, Autumn Carter, died because Smith was too drunk to realize his assault was killing her, Smith’s attorneys argued in court filings with the Ohio Parole Board, which heard the case Tuesday. And Ohio law is clear, they say: A death sentence requires an intent to kill the victim.

“The evidence suggests that Autumn’s death was a horrible accident,” Smith’s attorneys, Joseph Wilhelm and Tyson Fleming, said in a written argument prepared for the board.

They continued: “Despite the shocking nature of this crime, Steve’s death sentence should be commuted because genuine doubts exist whether he even committed a capital offense.”

Smith, 46, was never charged with rape, meaning the jury’s only choice was to convict or acquit him of aggravated murder, his attorneys say.

However, rape was included in the indictment against Smith as one of the factors making him eligible for the death penalty. Under Ohio law, an aggravated murder committed in the course of another crime — such as burglary, robbery, arson or the killing of a police officer or child — is an element that can make someone eligible for capital punishment.

The Richland County prosecutor said Smith continues to hide behind alcohol as an excuse and calls Smith’s actions “the purposeful murder of a helpless baby girl.”

I’m opposed to the death penalty because of the possibility – make that certainty – that innocent people will be executed.  That doesn’t mean some people don’t deserve to be put to death, however, and it’s hard to imagine what other punishment would suffice for a scumbag like Steven Smith.

That said, his lawyers have a point.  Murder is a crime requiring specific intent – the killer must intend to kill, not just harm, his victim.  Impairment by alcohol is not a defence to most criminal charges, but if Smith was so intoxicated that he couldn’t have formed the intent to kill, then under Ohio law he shouldn’t be on death row.

The state shouldn’t have the power to kill.  But if it does, at the very least it’s the lawyer’s job to ensure that this power is only carried out in the limited circumstances allowed.  Steven Smith might be the most loathsome defendant imaginable, but next time it could be someone someone more sympathetic – or innocent.