The words in the title of this post, absent the (un) are inscribed above the main entrance to the Supreme Court building in our nation’s capital. It is a noble sentiment to say the least, and some would say it is the corner stone of our system of jurisprudence, not to mention, our democracy. But it’s not exactly a new idea. The earliest evidence I’ve found appears in Thucydides’ History of the Peloponnesian Wars wherein in he cites Pericles’ Funeral Oration in 431 BCE; which really wasn’t a funeral oration but a paen to the glory of Athens.
Sidebar: I can never see the word Peloponnesian without thinking of the football player who asked the professor in the World History class why an old greek guy would be writing about polo ponies.
Pericles, of course, was making the point that Athens’ greatness was due to the fact that all of it’s citizens, highborn and low, poor and rich, educated and illiterate were afforded the “equal justice” of the state by virtue of their laws. The law should not know the color of it’s citizens skin nor the contents of their purse. It’s what makes a free man free.
Believe it or not, there was controversy over these words when they were originally proposed by the architects of the Supreme Court building. There were those who surmised that the world “equal” was superfluous and detracted from rather than added to the clarity of the phrase. Seen in hindsight I guess that’s not surprising.
It’s against this backdrop that I read a recent article in the New York Times which not only shocked my moral sensibilities, but gave the big lie to the notion of equality in the administration of our laws; at least with respect to the awarding of the death penalty. The upshot of the article was that two percent (2%) of the counties in America are responsible for one hundred percent (100%) of all death sentences. What??? Did I read that right? Let’s see, there are 3144 counties in the country and if I’ve punched the right buttons, that means that 62.88 counties (ok, I’ll round to 63) are the only ones that sentence people to be killed. Surely this can’t be right… but sadly, it is. Moreover, of the eighty state executions in 2013, Texas and Florida proudly account for more than fifty percent (50%) of them. The remainder are scattered out in only seven other states. No state, other than these infamous nine, have had an execution for more than forty-five years. Indeed, no country among those generally considered to be civilized, western democracies, other than America still kills its own citizens. Indeed, according to the Christian Science Monitor the top five countries in judicial executions since 2007 are Pakistan, United States, Iraq, Iran, and China. Hmm! My mother always told me that we are known by the company we keep.
The history of the death penalty in America is an ugly underbelly of our “system of justice” and a not-so-nice commentary on some pretty serious flaws in our national character. Let me give you some evidence. The first “official” execution in the US was in 1608…for spying. In fact, many of our early executions were for treasonous offenses. Spying, piracy, desertion, being on the wrong side of a battle, etc. We’ve even had mass executions as evidenced by the dispatch of thirty-eight Dakota indians by hanging in 1862 and thirteen negroes in 1917 who had the bad judgement to participate in a riot in Houston. We’ve executed children barely into puberty, George Stinney, aged fourteen was executed in South Carolina in 1944. And we’ve executed very senior citizens as we did to Joe Lee in Virginia in 1916. Joe was eighty three. We’ve executed folks by hanging, hanging in chains, firing squads, cyanide gas, electric chair, and now by injections of a single drug and currentl by three drug “cocktails”. BTW, I’ve not included extra-judicial executions, or lynchings, of which there have been hundreds if not thousands perpetrated by our upstanding citizens. If you guessed that George and Joe (the youngest and oldest to suffer the death penalty) were persons of color, you would be correct.
The abuses of the death penalty are legion and well documented, yet we still have over 3100 of our fellow citizens, most of whom we must admit, are probably not people we would bring home for dinner, languishing on death row. And we see from the NYT article that we still have sixty or so counties handing down death penalties as if it were the 17th century. I’ve already said that Texas and Florida get the gold medal for number of executions, but would you guess that Oklahoma gives out more death penalties per capita than any other state. Doesn’t surprise me at all. California has the most on death row, 731, but they can’t seem to pull the trigger, so to speak, on the final act. The majority of states have death penalty statutes, but they just don’t’ use them, and some, like Michigan, have never had death as an option for it’s citizens. Since 1976, Texas has executed 508 of it’s citizenry. A distant second and third are Virginia and Oklahoma with 110 and 108 respectively. Execution count by region is interesting. South…1111. Midwest…160. West…84. North East…4. Hmm? Notice anything here? BTW there was a brief hiatus in our judicial mayhem from 1972 to 1976 while the Supreme Court wrestled with the thorny question of by what means a state could kill one of its citizens without giving undue offense to his personal dignity. (See the paragraph following on 8th Amendment). Since 1976, the states, or more properly said, a few of these United States, have executed 1300 of our citizens. I can’t tell if its reduced the crime rate any though.
The tortured history of capital punishment has been presumably guided by the 8th and 14th Amendments to the Constitution. These amendments have been pretty much ignored by some state legislatures as they have determined who and how we should execute our citizens, and for what crimes. Let me elucidate. The 8th Amendment says in relevant part, “…excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment be inflicted…”. As you might imagine this has been fertile and prosperous ground for some of the participants of our legal establishment. There has been litigation out the wazoo on what constitutes “cruel and unusual punishment”. In 1972 Justice Brennan in a majority opinion established four principles as the standard to be used. The first, and most interesting, is that, “…an essential predicate is that a punishment must not by its severity be degrading to human dignity.” So it’s on this basis that we may not sentence a perpetrator of a capital crime to eat a bucket of dog sh*t, but it’s ok to pump them full of a cocktail of lethal drugs. Which sentence, I ask you, is more “degrading to human dignity”, eating dog sh*t or dying. I don’t really want to know your answer. So much for the 8th amendment.
Now to the 14th and the so called due process clause therein. It says in part, “…nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the law.” Seems pretty straight forward, doesn’t it. Ever man jack of us gets treated exactly the same by law. Hoo Ha! Hypothetically, let’s take Smedly and his evil twin Jack. Smedly, who is high on meth decides to rob his neighborhood 7-11, and in the process, panics and shoots and kills the Korean manager and an off-duty policeman who is in the store buying a six pack. Smedly, is of course, caught tried and convicted in state court in Dallas, and after ten years of appeals and nights on death row, he is strapped to a gurney and sent to his possibly just reward on the wings of 250 cc’s of toxic chemicals. BTW…this same mixture would kill a wounded water buffalo galloping at sixty miles an hour on the veld. His brother Jack, in a strange twist of fate, pulled exactly the same crime, with exactly the same outcome in Detroit, Michigan. A dead Korean manager, and off-duty cop. Jack, however, due to the fact that, the Michigan legislature who has never been known for enlightenment, decided to eschew capital punishment, sent Jack to Michigan’s equivalent of Attica where he still resides, and worries only about the sexual predilections of his cell mate and whether he will get TV privileges on Thursday. Equal justice under law. Hooey. So much for the 14th amendment.
It shouldn’t be a surprise to you that we, with the best of intentions, sometime get it wrong. Sometimes we convict an innocent man (or woman), and if they reside in the wrong state, and are the wrong color, they may be sentenced to death and eventually killed. There is no recourse to death. It can’t be fixed. The famous English jurist, William Blackstone opined in his Commentaries on the Law of England in 1760 that, “it is better that ten guilty men escape (the law) than one innocent suffer.” This “formulation” had previously been articulated by legal philosophers and theorists such as Maimonides in the 12th century as well as Sir John Fortesque who I’m sure you remember from the Salem witch trials. I’m not going to cite bible versus to you, but if you care to look, it’s there as well. American common law made this a foundational tenet, and was supported by both Ben Franklin and John Adams. And yet, and yet…we are still executing people (particularly in Texas), some of whom we know statistically will ultimately be proved innocent. We have blood on our hands. The well known Innocence Project, founded and currently directed by Barry Sheck (yes, I know he’s the one who helped get OJ off) have exonerated seventeen occupants of various state death rows. Yep. Seventeen innocent people who eventually we would have wrongly killed for crimes they did not commit.
In the run up to the tragic massacre of thousands of adherents of Catharism (a derivative of Catholicism) the Papal Legate in charge of the crusaders was asked how he could justify his order to “kill everyone”including some number of “true” Catholics as well as women and children in the small walled city of Bezier, France. He is reported to have said, “kill them all, God will know his own.”
Perhaps god will know his own of those we wrongly execute. I, however, suspect that they would rather trust in Barry Scheck. I know I would. But it’s not just the wrongly convicted that call for our concern. It’s not just the words of our constitution. It’s not just Blackstone’s Formulation. Sooner or later we must come together as a country, as have all other enlightened industrialized democracies, to agree that for us to kill some of our citizens to show other of our citizens that they should not kill….well, it’s not only morally bankrupt, it just makes no sense.
