Capital punishment, the slogan goes, means those without the capital get the punishment. Over 45 years of labor in criminal law has yet to show me a case to disprove the slogan. The only capital case I defended in private practice was one of very few I’ve ever seen where the lawyers were retained rather than appointed. And we won, victory being defined as the government not killing our client.
Death row, like most poor neighborhoods, has a disproportionate number of minority residents. Those of us who come from poor neighborhoods know that there are mean people there, and plenty of conditions to make good people mean. We also know that the vast majority of poor people survive those conditions without becoming mean.
This justifies in the minds of some what they call “putting down the mad dogs,” in spite of the fact that it is much more expensive to kill sociopaths than it is to lock them up without the possibility of parole. These are the choices for dealing with the people who have become too dangerous to live among us. Such people do exist. In my 17 years as a full time judge, I had contact with three of them, out of thousands of criminal defendants, and homicide defendants in numbers close to triple digits.
I don’t trust the criminal justice system to pick those three sociopaths out of a crowd as it exists or as it can be made to exist for any sum the taxpayers will pay. Sociopaths, you see, are not always poor people. Some of them are even white, as were two of the three I encountered.
In the days within my lifetime when we had the death penalty for rape, those executed were most often dark skinned men accused of raping white women. In this time of DNA exonerations into the triple digits we understand that cross-racial identification is very unreliable, and certainty is no guarantee of accuracy. At this writing, The Innocence Project claims 365 persons exonerated by DNA, 20 of whom spent time on death row.
If you come upon somebody in the act of raping your daughter and you kill him, no grand jury would indict you and no petit jury would convict you — -provided you have a good lawyer to be sure your story gets told and the funds to get scientific evidence processed, including a do-over for any tests that make no sense from the defense theory of the case. How much justice can…