Thursday, December 18, 2008


Capital punishment in Georgia


The one near Florida, not the one in the Caucasus.

As every other of our 50 states, Georgia requires juries to be unanimous in deciding on a death sentence. And that’s a good thing, we’d say. We shouldn’t sentence someone to death lightly, and asking a jury to be unanimous is only due diligence.

Well, but a jury has just convicted a truly nasty man of a truly nasty crime, four murders — and it has not been unanimous on killing the murderer, Brian Nichols. And as a result, legislators are falling over themselves to see who gets to be the one to introduce legislation to abolish the unanimity requirement:

But on Friday, three jurors shocked the legal community here by failing to agree with nine others on a death sentence and therefore, under Georgia law, sparing Mr. Nichols from execution. Without a unanimous sentence from the jury, a judge instead gave him 11 life sentences, plus 485 years in prison without parole.

Now, just days after the decision, Georgia legislators have begun lining up to introduce bills eliminating the requirement that juries be unanimous for a death sentence. Hard-on-crime lawmakers have long favored easier rules on death sentencing, but the Nichols sentence has given new urgency to their cause.

But what’s the problem here? The jury has spoken, in the way they’re asked to speak. Don’t we have a perfect example, here, of justice as it’s meant to be? Well, no, say critics:

“Unfortunately, you have people who say they’re willing to consider the death penalty, but when they get on a jury, it becomes clear that they’re actually death penalty opponents,” said Representative Barry A. Fleming, a Harlem Republican who twice sponsored efforts to revoke the unanimity requirement. Most recently, the proposal died in the State Senate in March.
OK, I get that. Of course people shouldn’t lie about their beliefs in order to torpedo a jury. But I have two issues with it, nonetheless. For one, we’re not talking about one holdout wingnut (like the one who reportedly listened to music and worked crossword puzzles, rather than participate in the death-penalty decision). It was three. Three out of twelve. That’s a full 25% who opposed it. Surely, that’s enough to cast doubt on the wisdom of a capital-punishment decision.

The other issue is that the jury has to be selected specifically to exclude people who think that the state shouldn’t be killing prisoners. By doing so, they’re already skewing the jury toward such a decision. And if they’re having trouble seating jurors who are willing to do the deed, doesn’t that, itself, say something?

The article brings up something I haven’t heard before, which also bothers me:

For years, the case’s length and cost have fueled criticisms of Georgia’s public defender system. State Senator Preston W. Smith, a Rome Republican, accused defense lawyers of spending like “drunken sailors on shore leave” to provide an “O. J. Simpson-style defense, all on the taxpayer’s dime.”
If we believe that everyone deserves a competent defense — I do — we should be applauding the public defenders for doing everything they could for Mr Nichols, rather than criticizing them for spending too much on someone Senator Smith surely considers not worth spending even one of those taxpayers’ dimes for.

In fact, it was the prosecutor, not the public defender, who drove the case into deep time and money — years, and millions. The prosecutor had an offer from Mr Nichols of a guilty plea in exchange for a life sentence. But they wanted him dead, so they rejected the offer. The cost and lengthy trial is not down to the defense, which had a duty to do the best it could.

But there’s something even more disturbing:

“This case shows how arbitrary and irrational the death penalty can be,” said Richard C. Dieter, the executive director of the Death Penalty Information Center. “People shake their heads when they hear that someone got the death penalty for robbing a 7-Eleven, and Brian Nichols got life in prison for his heinous crimes.”
That’s fine, if you think of it one way — it’s irrational, so we shouldn’t do it. But if the answer to the arbitrariness and irrationality is to make it easier to condemn someone to death, and results in killing more people in the name of “justice”... that’s really something to worry about.


scouter573 said...

The reaction to this case highlights the troublesome nature of the death penalty. Before anyone misinterprets, my opening sentence is an intentional understatement.

At one end of the scale of crime, I think I can find myself comfortable with death sentences for some reviled figures - Pol Pot and Adolf Hitler are easy examples. Treason that causes large scale death deserves a severe penalty. At the other end of the spectrum, the death penalty for more limited crimes brings no benefit to anyone, so we all agree that prison terms are proper.

My quandry is that I have no idea where to place the line that separates the two. Someone who has murdered several people might deserve the death penalty, but how many is a sufficient threshold? Two? Three? More? What if it was unintentional? What about injury to many people? What about large-scale damage to property? At one point, theft was a capital crime, but we all agree that was excessive.

More importantly, there is the issue of a wrong decision. Against all the best efforts, evidence, juries, and witnesses can be lost, wrong, and confused. And a convict in prison can be released and, somewhat, compensated when an error is detected. But a convict made dead is dead with no remedy or compensation for error.

Finally, were I to sit on the jury, I wonder about my ability to make such an irrevocable judgement on another person in the face of errors. Beyond that, I could never serve as an executioner.

I conclude that even the most terrible of crimes cannot justify the death penalty by a modern society. An effort to make it easier to proclaim such a sentence horrifies me. Why would anyone fail to be satisfied with a penalty of life in prison? Society benefits nothing from one more death while life in prison sounds a sufficient penalty.

Barry Leiba said...

Tout à fait.

Killing a criminal is not a question of "justice", but of revenge — and it's clearly a desire for revenge that was at work in Georgia in this case. And it bit them in the ass.

There's one other aspect, though: some people are under the misconception that we shouldn't be spending the money to incarcerate someone for 30 years, or perhaps 50 or more. But the fact is that with the expense of capital trials and appeals and so on, it's generally more expensive to execute someone.

I do believe that a convict should be allowed the option of death, though. To me, a guarantee to spend the rest of my life in prison would be worse than death. I, like Gary Gilmore, would choose death in that situation. I have no moral objection to that, if it's the convict's free choice.