Of
capital punishment, Massachusetts Gov. Mitt Romney says: "It makes reason
stare." Indeed it does.
By
George F. Will
Romney,
speaking by telephone from Boston, says he wants to influence the thinking of
potential killers. He means capital punishment can deter -- can "save a
life or two." That is one reason he wants to remove Massachusetts from the
list of 12 states without capital punishment.
A
second reason is that he believes there are crimes so heinous that only capital
punishment can express -- and by expressing, reinforce -- society's
proportionate revulsion. A third reason is Stephen "The Rifleman"
Flemmi. This month in Boston he pleaded guilty to federal racketeering charges
in connection with his role in 10 murders. He pleaded to avoid the threat of
death penalty charges in Florida and Oklahoma. "I would hate," Romney
says, "to lose the ability to get Mr. Flemmi to turn state's evidence."
Romney
has appointed an 11-member Council on Capital Punishment. The legal and forensic
experts' task is to devise a statute that will meet the "highest
evidentiary standards." He and his panel may conclude that all standards
are porous enough to allow unacceptable uncertainties to pass through, and that
evidentiary standards are hardly the only problem with capital punishment.
So
concluded Scott Turow, the lawyer and novelist, after his service on the
Illinois commission examining that state's administration of the death penalty.
That experience transformed him from "a death penalty agnostic" into
an opponent, a process he recounts in a slender new book "Ultimate
Punishment: A Lawyer's Reflections on Dealing with the Death Penalty."
He
cites several horrifying case histories, including one of an innocent man
convicted and sentenced to death twice. In the span the commission
studied, one-third of the times Illinois stipulated the death sentence, the
persons sentenced were subsequently either proved innocent or found, on second
consideration, guilty of the offense but not deserving execution. This was the
context in which then-Gov. George Ryan this year commuted the sentences of all
167 Illinois prisoners sentenced to death.
Turow
cites chilling instances to remind readers that eyewitness testimony can be much
less than the "evidentiary gold standard" it is supposed to be.
Furthermore, because of the psychological tangles in the minds of some accused
persons, and because of the leverage prosecutors have over the accused, there
are exceptions to the supposed iron law that people will not confess to a crime
they have not committed.
And
some of the very crimes for which Romney wants capital punishment reserved --
the especially heinous -- are the ones that, Turow says, "are uniquely
prone to error." Community passions around such cases put law enforcement,
and especially elected state's attorneys, under extreme pressure to quickly find
and convict a culprit. These passions trigger what Turow calls "the
propensity of juries to turn the burden of proof against defendants accused of
monstrous crimes."
A
properly, meaning narrowly, drawn capital punishment statute is necessarily
problematic. Restricting that penalty to a few offenses guarantees that it will
rarely be inflicted. Furthermore, the thick fabric of procedural protections
that courts have woven around capital punishment guarantees the elapse of, on
average, more than a decade between a conviction and an execution, and has
generated considerable uncertainty about who among those convicted of the few
capital offenses will be executed.
Yet
a punishment's deterrent power depends not only on the punishment's severity but
also on the swiftness and probability of its application. Turow says that even
in Wyoming, which has the nation's highest death-sentencing rate, fewer than 6
percent of homicides result in a death sentence.
Romney
is right that DNA evidence, which opponents of capital punishment have used to
free some innocent persons improperly convicted, can buttress capital punishment
by establishing guilt unassailably. However, DNA evidence is not decisive --
does not provide incontrovertible proof -- in most capital cases.
A
person's views of capital punishment often turn, Turow believes, on the person's
views of "the perfectibility of human beings and the durability of evil."
But imperfections and temptations to evil are not confined to criminals; they
taint all human systems. And as for making a potential killer's "reason
stare," Turow says dryly: "Murder is not a crime committed by those
closely attuned to the real-world effects of their behavior."
Turow
expects that the Supreme Court will eventually "conclude that capital
punishment and the promise of due process of law are incompatible." Be that
as it may, if Romney, a reasonable man, reads Turow's essay, he will have an
even more rounded appreciation of how the ultimate punishment makes reason not
merely stare but ultimately turn away.
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