Why the Death Penalty Doesn’t Work

dthpnltyI used to think the death penalty was an appropriate punishment for the crime of murder. That was before I understood how the justice system really works.

It appears that thirst for blood is Biblically-based, following the Old Testament admonition of “an eye for an eye.” For example, witness the Mormon family of Travis Alexander attending every day of the Jodi Arias trial, even the second time around. While doing this, they complain it’s so hard to look at the gruesome crime scene and autopsy photos. My common-sense suggestion would be: don’t look, or don’t attend the trial. It seems they want vengeance, even at the price of PTSD and emotional trauma, and they are determined to make sure they see it meted out. I have no doubt that should Arias be executed, all of them will be right there in the viewing room.

In the last 5 years, I have had the opportunity to journey through the process with Shawna Forde, the Minuteman who was convicted of being an accessory to the murders of a Mexican-American drug smuggler and his daughter in Arivaca. This has totally changed my perception of how “justice” works. I no longer believe in the system, even though I believe what was crafted by our Founding Fathers is still the best we have in this world.

LYING UNDER OATH TO OBTAIN A CONVICTION

I have discovered witnesses, defense attorneys, prosecutors and Sheriff’s Deputies lying in court. The oath you take to tell the truth before testifying means nothing to some people. The sole goal is to obtain a conviction; justice, fairness and truth are dropped by the wayside like unwanted garbage bags in the process. As Shawna observed after a couple of days at trial, “Everything is designed to get a conviction.” This was forcefully punctuated by several plainclothes Pima County Sheriff’s Deputies sitting right behind her with their weapons exposed and mean looks on their faces.

“HARMLESS” ERRORS

Every death penalty appeals attorney files briefs claiming that the death penalty constitutes cruel and unusual punishment, but they never explain how. This assertion is routinely dismissed by appeals courts, and should probably not even be used anymore, except for the fact that they need to put it on the record. In Shawna’s appeal to the Arizona Supreme Court, the justices agreed with almost all the errors that were cited, but amazingly claimed they made no difference to the outcome of the trial! (This includes multiple errors by an experienced judge who should know better when giving jury instructions.)

DENIAL OF DUE PROCESS

The death penalty very seldom leads to death; in fact, according to the Innocence Project, a number of prisoners who were denied DNA tests for decades are finally set free when the tests are performed on the physical evidence. Eyewitness identification of perpetrators is also notoriously unreliable, and the longer it takes to get to trial, the more inaccurate and the fuzzier the witnesses’ memories become. Yet both prosecutors and defense attorneys try to delay the proceedings as long as possible, thus robbing the defendant of the 6th Amendment right to a speedy trial. Months and years in solitary confinement are used by the prosecutor to soften up the defendant so that s/he is unavailable to assist in her/his own defense. Pre-trial detainees are encouraged to take psychotropic drugs to make them more docile. This usually occurs with the acquiescence of defense counsel who is typically employed by the same government the prosecutor and judge work for. To most appearances, it seems both prosecutor and defense are playing for the home team, and the lone defendant is the unwanted visitor who is destined to lose. This is the unspoken injustice in the system that very few people know about, unless they have been put through the system themselves.

POOR REPRESENTATION

According to Terrica Redfield, the National Association of Criminal Defense Lawyers’ Death Penalty Resource Counsel, “the fate of a capital defendant is intimately connected to the quality of legal representation he or she receives.” Statistically, most people sentenced to the death penalty were poor at the time of their trial. Very few well-to-do persons get convicted and sentenced to death, likely because they have the money to hire expensive lawyers who will knock themselves out to get their client acquitted. Logically, the state should make certain that defendants in capital murder cases get the very best representation so that their convictions are not overturned on appeal. When convicted defendants win new trials or are set free, they often sue the state for false imprisonment. Unfortunately, innocent taxpayers are forced to foot the bill for their reparations when they are unjustly incarcerated. Because death is final, those who will be executed should be provided with the best representation, and before a prosecutor takes a case to trial, he should make sure that he will get a righteous conviction because he has the actual perpetrator, based on solid evidence, not something like the testimony of snitches and weak circumstantial evidence.

BOTH SIDES WORKING FOR THE SAME EMPLOYER

The defendant in most death penalty trials is either represented by the Public Defender who is overworked and underpaid, or a contract attorney who almost always works for the county and is paid by them. The contract attorneys understand very well how the game is played; if they win too many cases or put on too vigorous a defense, then they will receive no more cases from the county. One might think they are not well-paid, but I know of at least one who regularly scores between $200,000 and $300,000 a year just to do Pima County’s bidding. These attorneys, even more than the Public Defenders, understand their servitude and accept it. They may make a show of defending their client, but the aim is to please their employers and to throw the case so that the client gets convicted. This is the dirty little secret which is not even whispered among the guilty brothers of the Bar.

ANY PERP IN A STORM

Unfortunately, all too often the prosecutor’s search for a likely candidate is more like the game “pin the tail on the donkey,” where a blindfolded person holding a pin is twirled around and then challenged to pin the tail on a donkey pasted to the wall. Those unprincipled prosecutors who just want a conviction to score a win don’t care who the donkey is; they just want to pin the crime on someone, whether they plan to run for political office some day or their ego demands a solid string of wins at trial. Do the names Nifong and Peasley come to mind? This is not justice! This is an Old Boys’ game, where whoever scores the most wins comes out on top, regardless of the costs to the general public, the victims of crimes, or the prosecuted individuals, not to mention the long-suffering captive taxpayers.

Our adversarial system gives rise to these sorts of attitudes. A trial is not a search for the truth, but an attempt to win the game. Defendants have told me that they felt like they were the only person on their side at trial; the rest of the courtroom was against them. A prominent defendant told me she was extremely irked by one of her attorneys going over for a friendly little chat with the prosecutor every morning, as if they were teammates.

WE PLEAD

In the well-known but highly inaccurate TV drama, Law and Order, trial is played out as we wish to see it happen; prosecution and defense are bitter enemies. In reality, they drink together at the same tavern, and both belong to the same Bar Association. The only thing real about Law and Order are the plea deals which are struck behind closed doors. Did you know that higher than 90% of all felony crimes do not go to trial? Most of the defendants plead to the crimes in return for reduced sentences. When a person is arrested, typically a prosecutor loads them down with so many extra charges (whether justified or not) the defendant is terrified of going to trial, and pleads just to get a reduced sentence. Some defendants who were innocent have weighed the odds after having been frightened by both the prosecutor and their own attorney and have even decided to plead to crimes they didn’t commit! By doing this, the prosecutor saves themselves time and money, not to mention avoiding any real lawyering in a courtroom where the quality of their performance would be judged.

DEATH PENALTY A POLITICAL DECISION

In this “just-us” system consisting of everyone playing for the government, is it any wonder that innocent people end up in jail and in prison, and that the death penalty is not properly or evenly applied? Politicians wanting to seem “tough on crime” like to use the death penalty as leverage in order to make a name for themselves. Arizona’s statute reserves the death penalty for “especially cruel, heinous and depraved” crimes, yet no legal definition of those terms is offered, as one defense attorney pointed out. Prosecutors lack specific guidelines and too often their decisions are political rather than in the interest of justice. According to a recent article in the Arizona Repubic, there are now 14 aggravators for the death penalty, making almost any murder qualify as a death penalty case!

VICTIM’S RIGHTS VS. DUE PROCESS

Nowhere in the Constitution or the Bill of Rights does it say anything about “victim’s rights,” and some in the legal community are concerned that they are overriding the defendant’s right to due process and a fair trial. Attorney Jim McDonald of Virginia attended the first day of testimony of Shawna Forde’s trial and he saw serious violations of her due process when she was dragged into the courtroom in shackles while the surviving victim was present prior to her testimony. Normal procedure decrees that the jury, witnesses and all spectators must wait outside until the defendant’s chains are removed and she is seated in civilian clothes. Judge Leonardo did not clear the courtroom as he should have done. According to McDonald, a serious review of victim’s rights laws is needed, yet no legislator dares to initiate one. He felt so strongly about the issue that he filed a Friend of the Court brief for Shawna’s appeal to the AZ State Supreme Court. During Shawna’s and her co defendants’ trials, survivor Gina Gonzalez was allowed by the judge to give an emotion-laden, inflammatory victim impact statement which likely violated court rules and due process. This was wrong, and everyone knew it was wrong, but nothing was done.

APPEALS BUT NO EXECUTION

Some people are under the mistaken impression that once someone is sentenced to death, they will be executed right away. Because “death is different,” a series of appeals are allowed to the condemned person before execution is carried out. For example, Debra Milke spent 22 years on Arizona’s Death Row before the 9th Circuit Court of Appeals set aside her conviction. The legal and incarceration costs of a death penalty conviction are currently much higher than the costs of keeping a prisoner incarcerated for life.

CRUEL AND UNUSUAL

The Eighth Amendment forbids inflicting “cruel and unusual punishments,” yet it fails to define these. A critical look at the time in which the amendment was written might yield the conclusion that being subjected to public humiliation, the ducking stool, burning, whipping, and being held in stocks were cruel and unusual punishments. Since hanging, electrocution, gassing and the firing squad seemed unnecessarily violent and painful, even if just for a moment, prisons moved toward lethal injections, which appear to put the prisoner to sleep as if they were euthanizing an animal. All appeals attorneys still cite execution as cruel and unusual, but I believe the fits and starts which lead up to the execution are the real psychologically cruel punishment.

PSYCHOLOGICAL PUNISHMENT

Going through the various steps of appeal spanning decades is cruel punishment for both the prisoner, his family and for the family of the victim. Each step the prisoner hopes will free him, yet as he fails at each step, he awaits his unknown fate in more appeals, until he gets to the very last one. Knowing your life will end at some unknown point in the future is more stressful than knowing how much time you actually have left. Similarly, not knowing if the prisoner who killed your loved one will be released, or when they will suffer their final punishment, is difficult for families and loved ones of the deceased who are seeking closure. The ending is years away.

If you are a prisoner who is close to execution, the waiting is sheer torture. You get closer, maybe even take the walk to the execution chamber, only to be pulled back at the last moment, never knowing how many more hours or days you have. You are like a person with a terminal disease which will finally kill you, never knowing when the end will come.

SOLITARY—CRUEL AND UNUSUAL

Most people don’t know this, but all Death Row prisoners are kept in solitary confinement for 23 hours a day. If they are lucky, they will be allowed to leave their cell for one hour per day, but usually they get a couple hours here, and an hour there, at unpredictable times during any given week. They are usually forbidden to speak to anyone but their guards, and can incur further punishment for speaking to each other.

Solitary is the cruelest punishment of all. As pointed out by Dr. Atul Gawande in his article for the New York Times Magazine, Hellhole: former POW John McCain said that solitary is “an awful thing. It crushes your spirit and weakens your resistance more effectively than any other form of mistreatment.”  There is no reason to keep prisoners on Death Row in solitary. There are many convicted murderers who serve their time in general population where they have many hours outside their cells and the opportunity to work and earn a little money, which is only one of many privileges denied to Death Row prisoners. Even the US military forbids keeping a prisoner in solitary for longer than 45 days, yet state governments continue to get away with solitary confinement for decades. The ACLU recently sued the AZ Department of Corrections over prisoner health services and solitary confinement and won. The DOC is making a sham effort at pretending they have no solitary confinement, but no one believes them.

I once asked Shawna to describe what solitary felt like. She said, “Imagine yourself locked in your bathroom for 24 hours a day. The only human contact you have is with the guards, and your food is pushed to you through a slot in the door which you can’t open. Spend two days in there, and then tell me how it feels.” How would you feel if you couldn’t speak to anyone of your choosing for weeks on end?

Some pre-trial detainees are also kept in jail solitary prior to trial. Sometimes the ruse is that it is for their own protection, although there is no reason why Administrative Segregation/Protective Custody has to be solitary confinement. Solitary is good for prosecutors; it softens up defendants prior to trial by denying them any human contact. Studies have shown that prolonged solitary drives prisoners insane, creates and magnifies any PTSD, makes prisoners withdrawn and lessens their coping skills. This is obviously a behavioral control method which corrections administrators use to their advantage.

Many of those held in SuperMax prison isolation will get out one day, as will some on Death Row. Will they be angry and act out on society? Will innocent people suffer because they were tortured with solitary and denied human companionship?

Until the State can free itself of corruption, until the “just-us” system can be turned into blind and equal justice for all, until both conservatives and liberals ban the use of cruel and unusual punishment as it is understood by modern standards, the government has no right to execute anyone.

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