ARGUING ABOUT THE DEATH PENALTY:  HOW TO TALK YOURSELF HOARSE, PISS OFF YOUR FRIENDS, AND ACCOMPLISH NOTHING

Some of the most knock-down-drag-out arguments I’ve ever heard have had to do with the death penalty.  People get pretty worked up.

And to bolster their arguments, folks start pulling out all sorts of ostensibly sacred texts and writings.

“The Bible says Thou Shalt not Kill!”  “No, that really means Thou Shalt not Murder!”  “The Bible says An Eye for an Eye!”  “But it also says Love your enemies!”  “Well, Jesus said if you had anger in your heart, it was the same as murder—should we execute every angry person?”

On and on it goes, and no one convinces anyone of anything.

If we’re honest, though, the issue of the death penalty breaks down around three basic questions.  The first question has long been answered.  The second question—the one everyone wants to get worked up about—will never be answered.

But it’s the third question that’s by far the most important.  And it’s the one everyone wants to run away from and avoid.

We’ll get to those in a minute.  First, maybe we should recap how we got here.

Humans have been imposing penalties for breaking laws ever since they started inventing laws.  And one such penalty was death.   

One of the oldest set of laws is the Code of Hammurabi, written over 3,000 years ago.  It listed death as the penalty for over twenty violations.  Interestingly, murder didn’t make the list.

This continued for centuries.  Over time, it got to be even more hardcore.  In colonial Virginia, you could be executed for stealing grapes or trading with the local Indians. 

But by the late twentieth century, capital punishment in America had pretty much been confined to First Degree Murder.  Most developed countries had done away with it, but for better or worse, the U.S. has persisted to this very day.

So what are the three big questions about capital punishment, and why do they matter?

Question number one is whether the death penalty is a deterrent.  That is, if I’m about to murder someone, do I suddenly stop and say “Oh my God, I might get the death penalty, so I’m not going do it!”

This has never made much sense.  People resorting to murder generally don’t think this way.  Plus, there are plenty of real-word examples of how this doesn’t work. 

I live in Nebraska, barely a stone’s throw from Iowa.  In many cases, a criminal has abducted someone in Iowa (where there’s no death penalty) and murdered them in Nebraska (where there is).  Obviously, the death penalty didn’t make much difference.

So toss out the deterrence argument.  The second question is the one everyone loves to go round and round about.

Is the death penalty moral?  It’s a philosophical and ethical question, and I’m sure as hell no philosopher or ethicist.  And neither are most other people.

You can rant, rave, and shout about this all you want.  Jump up and down, scream, and wave your arms if you’d like.  The only thing you’ll do is make yourself hoarse, and you won’t change anyone’s mind.  The question of the death penalty’s morality can never be answered in any universal way.  People will simply believe whatever they want to believe.

Which brings us to the third question, the one no one wants to talk about.  It’s neither philosophical nor ethical.  Instead, it’s a blunt, in-your-face proposition.

How many innocent people are you willing to kill in order to execute the guilty ones?  Yes, you read that right.

Be careful how you answer it.  Because if you say “none,” you’ve just expressed your opposition to the death penalty.

Why?  Because the death penalty is imposed by the criminal justice system.  And our system of justice is administered by human beings, not by gods (OK, we have some Supreme Court Justices who think they’re God, but that’s a separate issue).

And if seventy years on this planet has taught me anything, it’s that human beings screw up.  Big time.

In the criminal justice system, this means that sometimes guilty people will go free (think O.J. Simpson) and sometimes innocent people get convicted.  And if you’re convicted of murder, you could well wind-up dead.

I’ve testified in court numerous times, and I suppose I’m about as familiar with the system as anyone who’s not directly involved in either law or law enforcement.  I’ve even been a defendant a couple of times in medical malpractice suits.  True, my life wasn’t on the line—just a bunch of money that an insurance company might have to pay.  But I still took the whole thing very personally.

Which brings us to the ultimate wildcard in the whole justice system.  The jury.

If you’re on trial, the first day in court will likely be involved with selecting a jury.  And each side—the prosecution and the defense—will do everything they can to get a “favorable” jury.

That is, a jury that might be inclined to be either for or against you.

Are you black?  How many of the selected jurors are actually racist?  Are you gay?  How many of the jurors are closet homophobes?  How will that impact their thinking?

Remember, if it’s murder you’re accused of, it’s only your life that’s on the line.

The fact is, there are no totally “impartial” juries.  They all have their own lives.  They all have their own prejudices. 

They’re all just humans.  And they’re all being asked to render judgement.

I remember my first malpractice trial.  Jury selection was in full swing and we had a lunchtime recess.  Immediately, all of the lawyers started calling everyone they knew who might have insights into prospective jurors.

“Fred?  Sam Davis.  We have a trial downtown and Mike Thompson is a prospective juror.” (All names are made up, by the way).  It looks like he works for you.  Here’s what the case is about.  How do you think he’d be inclined to look at a matter like this?”

For an hour this went on, call after call.  The other Doctors and I looked at each other, baffled.  One of the attorneys noticed this, then said bluntly, “You may not realize it, but this may be the most important thing that happens in this trial.”

Jury selection.  Choosing a presumedly impartial group of people to hear the facts.  And who was chosen might be the most important thing in the trial?

I felt like a football player who’d just learned that the most important thing that would happen in the game wasn’t how well he played, but who won the coin toss.  It wasn’t exactly reassuring. 

None of this is meant to demean the jury system.  Juries are made up of sincere human beings.  But they’re still human beings, nonetheless.  And they’ll still make mistakes.

Add to all of this the impact of the nature of the murder.  The more heinous the killing, the more the public wants the perpetrator off the streets.  The more law enforcement wants the crime to be solved.  The more the prosecutor wants a big win.

Being a prosecuting attorney is often the launch pad for a political career.  Solve a big case and put the “XYZ Killer” away?  The next step up might be State Attorney General.

Then United States Senator.  Then maybe President.

Plenty of smart, ambitious people harbor these hopes.  And there’s nothing wrong with that.  But couple such ambition with a mentally challenged defendant, being tried on largely circumstantial evidence, and being represented by an overworked, stressed public defender, and mistakes will happen.

Add to all of this the pressure that law enforcement feels.  From the moment the crime is discovered, they’re under the gun to solve it.  Often, they’ll have hunches about who the murderer might be.  They’ll apprehend him or her, and subject them to questioning.  Their goal?  Get them to confess.

This is supposed to involve the officers writing down what the suspect says, then getting him to sign a confession.  But not always.  If the officers feel strongly that the suspect is guilty in their eyes, they’ll have a confession ready to go.  They’ll pressure the suspect to sign it.  Even if it takes hours.

Just north of my hometown is the city of St. Joseph, Missouri.  In 1978, a four-year-old child was found sexually assaulted and brutally murdered in the river bluffs just outside of town.  Immediately, suspicion fell on a 25-year-old mentally impaired, bisexual man who had a local reputation as a Peeping Tom.  In 1970’s Missouri, that was enough to get you labelled a creep.

He was brought in, questioned, and signed a confession.  Just before his trial, he recanted his confession, and said it was coerced. 

Yeah, right.

He was found guilty, sentenced to life (this was during a time when the death penalty was suspended), and promptly carted off to the State Penitentiary in Jefferson City.  Everyone breathed a sigh of relief.

Four years later, an identical murder occurred.  The police were stunned.  This wasn’t a copycat.  There were details about the first murder that had never been made public, and were now a part of this murder, too.

The wrong man had been convicted.  The real killer was still on the loose.

I won’t go into detail, but thanks to some determined detective work, the real killer was found.  He’d been a person of interest early in the first murder investigation, but went off the radar as soon as the first suspect was apprehended.

Now feeling himself cornered, the actual murderer confessed to both killings.  And to at least 16 others around the country.  There may have been more.

How many of those murders occurred during the four years when he should have been in prison, if the wrong man hadn’t been convicted?  Who knows.

In Michigan, a similar case occurred.  A young woman was horribly raped and murdered.  The police were convinced they’d arrested the murderer.  After hours of questioning, he signed a confession.  Later, at his trial, he claimed he was tricked into signing a paper he was told wasn’t a confession.

Yeah, right.

When the judge sentenced him, he said, “Young man, you have committed the vilest crime I’ve ever seen in all my years on the bench.  My only regret is that the state allows me only to sentence you to life without parole, and I cannot sentence you to death, which is what you deserve.”

A few years later, the real killer was identified.  Several officers admitted they’d indeed misled the original suspect into signing a false confession.

And the judge who made the comment at sentencing?  Not surprisingly, he’s now a staunch opponent of the death penalty.

Dozens of people—some would say hundreds—have been sentenced to death row, only to be released when the real killer was found.  Fine.  Justice was done.

But this brings up a much more troubling question.  How many innocent people have actually been executed?

Who knows?  It’s not something the legal system likes to talk about.

So I’ll just give you one possible example.  In 1991, Cameron Willingham’s home caught on fire.  Running outside to find his children, Willingham realized they were still inside.  The house was ablaze.  Neighbors and rescuers held him back as he screamed and tried to get inside the flames.

He had lost his three children.  Then he was arrested.

A state Arson Investigator testified that the fire was intentionally set and fueled by an accelerant.  In addition, prosecutors claimed that Willingham had set the fire to cover up abuse of his children.  The whole crying and screaming to save his children thing had been a ruse.

Willingham maintained his innocence.  He’d never abused his children, he said.  And he had no idea how the fire started.

Yeah, right.

The jury didn’t buy it.  Willingham was convicted and sentenced to death.  After his final appeal was rejected (by the politically-ambitious Texas Governor Rick Perry), he was executed.

Soon thereafter, the truth began to come out.  The Arson Investigator who testified the fire had been set was found to be incompetent.  An independent investigation revealed there was no evidence the fire had been set, and bad wiring was the more likely issue.  As a result, other cases where the Investigator had testified were thrown out, too.

But of course, it was too late for Cameron Willingham.  In addition, it was learned that the prosecutor in the case deliberately withheld evidence that could have led to an acquittal.  The prosecutor was eventually disbarred from practicing law after another murder conviction where he had misled the court was overturned.

But again, it came too late for Cameron Willingham.

I could go on and on, case after case.  I hope I’ve made my point.  If someone is wrongly convicted, and years later found to be innocent, you can always apologize, shake her hand, and let her out of prison.

But if she’s been executed, it won’t do much good to dig her up out of the ground.

Maybe some people do deserve to die for the horrible things they’ve done.  I won’t argue that point.  As a physician, I’ve dealt with the aftermath of some of those horrible things.  But we all need to come to terms with that third question I raised earlier, the question seemingly no one wants to look in the eye and confront.

How many innocent people are we willing to kill in order to kill the guilty ones?  Because until we have the moral courage to confront that question, I’m not sure we have any business carrying out the death penalty.