Friday, July 13, 2012

And that’s when I gave up on the death penalty

What I have noticed in the case of many wrongful convictions (not just where it seems wrong, but where there is enough evidence to get the conviction overturned) is that generally the side of the law and the victim's family never seem to be convinced.

In the case covered in Anatomy of Injustice, the prosecuting DA still thinks he did it. I had also recently read about another case in Texas where DNA found at the scene did not match any of the four people convicted. They were released, but the DA's office was still convinced it was them and was going to look for more evidence to retry them. (If they were found innocent you cannot retry them, but an overturned guilty conviction is fair game.)

There are a lot of examples of this. I guess the best term for it is confirmation bias, and it is something that really worries me--that people get a wrong idea in their head and they will just not push it out, regardless of reason. So what I wanted to know from Bonner was if he had found anything to be effective against this.

He said "no", but he had not really thought of it. With Bonner, his mental training is geared towards the law and justice, and his morals are that the death penalty is wrong, so he is not thinking about that question, and that makes sense. I am geared towards psychology and motivation, and how to get people to be better, and so I have different questions. That's okay.

Marquis answered too, though, and said you could not generalize because he had victims' families who asked for him to not seek the death penalty. That wasn't really my question, so I tried to explain, and he still answered a different question. I gave an example of another wrongful conviction, from a book, A Death in Belmont by Sebastian Junger. In this case a black man is convicted of the murder of a woman whose home he had worked at earlier in the day. However, she was strangled, and the man who was later arrested as the Boston Strangler had been working a few blocks away that day at the home of the Junger family, which is what personally drew Junger to the case. There were later doubts, which led to the original man, Roy Smith, having his sentence commuted, but he died in prison before he could be released.

Anyway, Junger had originally interviewed the murder victim's daughter, but she later demanded that part be removed from the book, and he complied with that. Despite that, when he came and read at Powells the Multnomah County DA and a victims’ rights group came and disrupted the reading because he still had the audacity to think it was a wrongful conviction, I guess.

This was a good example because Marquis was familiar with all of it. He had reviewed the book and was familiar with the case, and sort of familiar with the group at the reading, though he said they just wanted to ask the author some questions. That's not how the newspaper described it, but okay, fine.

Anyway, Marquis felt like the book was dishonest. As an example of that, he said that Junger wrote what was in the daughter's mind on a specific day in the courtroom, and she wasn't even there, and the thing is, I do not remember the daughter being mentioned. I remember that specifically because of the issue with her wanting her content removed. Also I remember that the book was very frank in that there are some things that are impossible to go back and know. Roy Smith is dead. Albert DiSalvo is dead. Bessie Goldberg is dead. I thought Junger was very balanced and fair. All of that stuck in my mind, because it offended me that they were acting like Junger didn't have a right to write about this story.

I don’t think he Marquis was lying about the book. As a reviewer, maybe he read an early draft, before the excisions were made, if that’s possible, but mainly, I think he was mistaken. Without going back and reading the book again, I can’t say for sure, and maybe I should to that, but in this context, my question was clearly pointless, and I did not want to be derailing things like the people I wrote about yesterday, so I gave up.

Marquis, without answering the question I wanted, certainly illustrated it. His mind was not open. Actually, even with Bonner's book, which he complimented, Marquis never came right out and said that he still thought the guy was guilty, but there were different points that he raised that would lead one to believe so. For example, the way this man, Edward Lee Elmore, got out of prison was that after the most recent conviction was overturned, he entered a plea that is not accepting guilt but not denying it either, and Marquis' point was now that he has a good lawyer, and he would certainly not be sentenced to anything worse than time served, why not go for it and prove innocence? Well, from the point of view of the legal team, the prosecution played dirty three times in a row, and they did not want to risk it again, and maybe Elmore would just like to be out after 28 years in jail.

Marquis gave several examples of people who swore they were innocent and later when DNA testing became possible they were not exonerated. Actually one of his points with the Elmore case was that it was not a capital case, so yes, the a lot of these overturned convictions are ones where the death penalty was not in play anyway. Well, good, but some of these people who have spent thirty years in jail for something they didn’t do might still have some complaints, no matter how grateful they are to be alive.

The funny thing is, I went there not one hundred percent against the death penalty. I do think there are crimes where death is a reasonable punishment. However, I have grave concerns about the way we carry it out, so that while I may not be against it in principle, I tend to be against it in practice, and least how Texas does it.

To be fair, Oregon is pretty good. Very few criminals are even considered for the death penalty, they are usually ones for whom it seems to make sense (I don’t think Fanus should ever have been a death penalty case, but most of them make sense). We have a careful appeals process and give them good lawyers, and really are pretty responsible with it.

Here are the problems. First of all, most states are not like Oregon. Some are awful. Oddly, that seems to be especially true in the South. I do somewhat share the concerns about making society an executioner. Again, it seems that if it can be morally right for people to die, then it follows that it must be possible to for that to happen in a way that does not degrade society, but I don’t know.

For the issues with wrongful conviction, if we focused on abolishing that rather than the death penalty, that would be more useful, because a lot of these horrible stories you hear of people being exonerated after years in jail are not death penalty cases.

Where I came away firmly against it is in the practicality. Oregon spends $3 million on the average capital case, because in a case that serious they want to make sure that they have good lawyers, and that costs more, and then you have the three appeals. Okay, what if we used that money to get better legal representation for the non-capital cases. You know that court-appointed lawyers are not the cream of the crop. And those are things that Marquis feels good about, and I am glad that we are careful about our capital cases, but I'm not sure it's enough to justify it.

I think a large part of the motivation, at least here in Oregon, to be careful with the death penalty, is the knowledge that it would be awful to be wrong. So when I see people unable to accept that maybe someone has been wrong, that just seems like a recipe for disaster. Actually, that trait goes badly with a lot of situations, but where lives are at stake, maybe it’s more. And here is the thing that truly chilled me:

And individuals who believe in capital punishment are generally more inclined to convict, to believe the police and the prosecutor.” (Anatomy of Injustice, p. 51)

One thing that I should make clear is that I truly believe that Marquis is an intelligent man and a good man and he knows the law well. Some of the other things I have been reading about are good people doing horrible things and not seeing any contradiction.

I’ll have to see if I can write coherently about that. In the meanwhile, I guess I just think that maybe there are better crusades out there than one for the right to execute.

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