In the last 2 posts – Part 1 & Part 2, I strongly advocated the case for retaining the death penalty, provided certain criteria were met. What are the harsh realities of capital punishment? Its not my intention to sweep inconvenient truths under the carpet, especially when they are explosive in nature.
Let’s swallow the slimiest toad – everything else will seem simpler by contrast. Exactly whom do we kill when we impose the Death Penalty? Distressingly enough, the poor have the odds tilted against them, yet again. For, defendants that can afford better attorneys are seldom executed.
This is what US Supreme Court Justice Ruth Bader Ginsburg has to say on the subject:
People who are well represented at trial do not get the death penalty. I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well represented at trial.
In a free country, every individual has the inalienable right for legal representation in a trial. If defendants can’t afford a lawyer on their own, the court appoints one on their behalf. Such attorneys are called “Legal Aid Lawyers” & they are paid – admittedly not big bucks – by the state.
In addition to this, flourishing law firms offer free legal counseling for the economically disadvantaged strata. These are called Pro bono publico cases – literally, cases taken up for the betterment of the society. Bar Associations in the US & UK have encouraged lawyers to participate in Pro bono work, to do their part for the society. Some have even published minimum recommended Pro bono hours for lawyers.
Unfortunately, all this sounds better on paper than in reality. Sadly & unsurprisingly, once the numbers are tallied, most law firms fall abysmally short of even the minimum recommended Pro bono hours. When the rubber meets the road – many defendants, especially the poorest of the poor, are woefully under-represented in courts of law.
How does this impact Capital Punishment?
When an attorney wants the court to overturn a conviction or a death sentence, the usual procedure in most countries is a Writ of Habeas Corpus. This is the law by which a detainee can seek relief from unlawful detention. In Death Penalty cases, more often than not, its the lawyer that files the writ. But lawyers appointed by the court to handle the writs of death row inmates routinely bungle appeals.
Justin Fuller, a death row inmate was convicted of robbery & shooting, that resulted in the death of a man. The court appointed Toby Wilkinson to handle Fuller’s appeals. The writ filed by Wilkinson was full of errors. Which isn’t surprising, since Wilkinson copied several portions from a prior writ that he filed 2 years earlier for another inmate, Henry Dunn. He got the name of the co-defendant & the trial judge wrong. He even got the central issue – the evidence – in Fuller’s case wrong. He had blindly copied those sections from Dunn’s writ.
Fuller was executed on August 24, 2006. Wilkinson’s writ was so bad, that his client did not stand a chance.
Quality of counsel is THAT important. It is an important predictor on whose appeals have a better chance with the bench or the appeals court.
What about racial discrimination? After all, human beings interpret the law. Pretending that there’s no racial divide in who gets the capital punishment, will take us nowhere. A statistical study conducted by Law Professor David Baldus concluded that African American defendants are 4 times more likely to get the death penalty, than Caucasians, for similar offenses. The results of this study were disputed by those advocating the Death Penalty, including yours sincerely. But to be fair, how can we sweep aside the fact that 74% of those who got the death penalty between 1995 & 2000 were minorities?
Why is the law so skewed? Another study conducted by Professor Jeffrey Pokorak found the smoking gun. 98% of the Chief District Attorneys are White. These are the key decision makers on when to seek the death penalty. I shudder to think how the Death Penalty is applied in India. What would we find, if our courts were faster, instead of moving at a snail’s pace? What would be the demographics of those swinging on the hang-man’s noose? Would a striking pattern leap to the eye?
Now, do you want to know who doesn’t get the death penalty?
In the year 1924, Richard Loeb & his friend Nathan Leopold, both scions of wealthy families, were busy planning a perfect murder. Murder to them, was an intellectual exercise. Loeb particularly, was fascinated with crime. Leopold held the philosophical belief that legal obligations did not apply to Supermen – as in, those intelligent like him & his friend.
They decided to kidnap a child of affluent parents & seek ransom. One evening at about 5 PM, Bobby Franks, the son of an acquaintance, was walking home from school. Leopold & Loeb lured Bobby to their car, under the guise of talking about tennis rackets. They killed Bobby with a chisel, drove to a marshland, stripped the child & poured acid all over the body to make identification difficult. They systematically stuffed the dead body into a culvert. Upon returning home, they burned Bobby’s clothes.
They then called the Franks over the phone & told them that their boy had been kidnapped, but safe. The family had to pay $10,000 as ransom, to be delivered at a certain drugstore. Before the Franks could proceed further, the police called them. A laborer had seen a leg poking out of a culvert & they wondered if it could be the body of Bobby Franks.
How did the law catch up with Leopold & Loeb? Here are some sordid details – A pair of horn-rimmed glasses belonging to Leopold was found on the body. Their ransom note matched a type-writer in Leopold’s law school. Their alibi – that they were picking up girls on the day of the murder – fell apart. Leopold & Loeb confessed their crime.
But they had a formidable weapon in their arsenal – top-notch defense attorney Clarence Darrow. He built a complex case of Psychology, Nature (how his defendants had no control over how they were made) & their Extreme Youth. He eloquently painted a bleak picture of the endless, soul crushing life in prison his young charges faced. When Darrow finished his summation, the judge & the spectators were moved to tears.
Leopold & Loeb didn’t get the Death Penalty. Macabre crime, damning evidence & the icing on the cake, confessions. Its the same law, but a great lawyer can make a big difference – literally – between life & death.
Its no wonder that to many kind-hearted gentle people, the law seems arbitrary. But I have a question for these people: Does it matter terribly that the rich wriggle out of the death penalty? Shouldn’t it matter more to us, that those with mitigating circumstances get better legal assistance & thus avoid the noose, the injection or the electric chair?
We don’t have to dismantle the death penalty because – the path leading up to it – has short-comings. That seems like a non-sequitur to me. We can eradicate something only if we poke enough holes in it. Collectively, we need to figure out how to plug the gaps in providing legal aid, so that the sentencing process becomes more equitable & less arbitrary. Perhaps lawyers that routinely spew out shoddy writs & ruin the appeals process can be disqualified by discerning judges.
I see a growing trend to scuttle the difficult.
Too many “normal” people use drugs? Think many reckless, irresponsible people are detained at foreign ports of entry because they had drugs on them? Make drugs legal, it is eating up too much time from the law & order machinery. Let them focus on “more serious” crime.
What I think about drugs is tangential to this thread, but I think the reasoning listed above is simply the product of poor logic & hazy thinking. Legalizing drugs should solely be based on its effects, determined scientifically & empirically. I submit that we should apply the same standards to Capital Punishment.
As usual, I’ve run out of space. I don’t have enough space to cover the 8th amendment, so let me adjourn that to the next post.