A Capital Idea

When I argue with good friends, it sticks with me. Kinda like the way an argument with a spouse does. Presumably. It's because you like/love them that it won't get out of your head. I recently had a disagreement with my good friend Heather about capital punishment. She said to one of her kids that capital punishment isn't something to be supported without looking into and gave the ferinstance of "capital punishment is more expensive than the alternative." I didn't want to argue, but I felt the educational opportunity was right to clarify the statement. So we started with the highly educational, "No it isn't. Yes it is. No it isn't. Yes it is. No it isn't."

Since we are both adults, we eased into clarification about country. She wasn't referring to Chinese or Indian capital punishment, which is expediently handled and undoubtedly the cost of keeping a person in maximum security for 25 years or more outweighs the cost of a quick trial and a bullet. Or a jolt of electricity, or an intravenous poison cocktail or a hanging. She was referring to the American system. Here I hit a familiar nagging doubt. It comes up a lot in my writing and arguing. Was my research, reading, and all other information on capital punishment (and it's something I may have a little TOO much interest in) predominantly American, British, Canadian... I wasn't sure. But since all media are dominated by the U.S., I reckoned we were still on the same page.

Then we got to the heart of the matter. The fucked up American legal and penal system. And like their systems of government, education, and pretty much everything else, it's fucked up because of rich people and greed. We almost got there talking about the endless appeal process being the source of the taxpayer expense, but our disagreement was cut short by others who didn't like seeing us argue. I think we almost landed on the source of our dispute, which we would have realized, was not actually a dispute. I put it to you here that the U.S. legal and penal system is SO fucked up that capital punishment IS AND ISN'T more expensive than the alternative. So we were both right. Here's how:

I'm only going to refer to the last 50 years (since the 70's) because before then things weren't so out of hand in the arena of the American death penalty. So let's start with a few of the things we've learned about the death penalty over the last 50 years of its implementation in parts of the US. First of all, if you are able to afford an attorney, your chances of avoiding the death penalty exponentially increase. Here is a really good article about that. Add to this the absolute fact that rich people are not arrested as often, convicted as often and can namedrop or buy their way out of crimes, suffice to say that the American legal system is heavily discriminatory against those who have less money. So you can probably add to the list of rich people in the article who were not sentenced to death, many others who were never even arrested. The Alice Walton (Walmart billionaire) story is one of the best examples. She likes to drive drunk and has even killed a person by hitting her with her car. It's a crime that COULD get you the death penalty. Alice Walton didn't even go to trial for it.

Capital punishment or the death penalty, in the US, seems to be reserved for low income to destitute, black or minority, males. It's proven to be a sexist, racist, elitist form of sentencing in the US. A sad reflection on the lawmakers and members of the legal systems in the states where the death penalty is practiced. Now I could probably get another argument out of the same friend about the last one, something to the effect of women are less disposed to the commission of capital crimes by nature, or the like. I'm not going to get into that or the well known facts about minorities who are traditionally in positions of economic disadvantage in the U.S. I want to concentrate on the elitism of the death penalty in the US because herein lies the cost to the taxpayer and the expense about which my friend and I disagreed.

When a person is sentenced to death in America, they have the right to an attorney and if they cannot afford one, an attorney will be appointed by the court. We've all heard this on Columbo or Hill Street Blues or holy MOLY I'm old! So the cases that cost the taxpayer money are those in which the defendant is unable to afford an attorney. Now look, as mentioned before, the legal system of America is fucked up. If you only needed an attorney for a court case, a LOT of people would be able to afford one. But for a capital offense, you could be well into the middle classes who can't afford an attorney because you COULD have to afford an attorney for 40 years! That's right, the appeals process is so stupid that a guy could spent longer than a life sentence, closer to TWO life sentences, on death row. Think I'm kidding? Tap that link. Gary Alvord. A man who had too severe a mental condition to be ethically put to death, and was refused mental treatment on the grounds that it's ethically wrong to make a man mentally fit to be killed. Are you getting a sense of the fuck-uppedness yet?

Since 1976, the "comeback" of the death penalty in the States, more than 7,800 defendants have been sentenced to death; of these, more than 1,500 have been executed. A total of 165 who were sentenced to death in the modern era were exonerated before their execution. So roughly 2% of people charged with capital crimes and sentenced to death have been exonerated. 

That's HUGE! It seems like it isn't a waste of time when you look at that. But then you read something like this and find out the most common reasons why death penalty sentences are overturned, and even that it's not the innocence or guilt, it's just the penalty that's overturned, you think, like I believe I've mentioned before, that it's fucked up. This article is for California, where they have the most death row inmates, and it's fairly representative for the whole country. It's only since '87 too, but here was the major finding in their study. Most reversals were from "lawyers who put on perfunctory defenses; prosecutors who concealed evidence; and mistake-prone trial judges, including one who allowed a prosecutor to deliberately exclude Latinos from a jury deciding whether a Latino defendant should live or die." And since the 2000's years after the original trial that sentences have been reversed has jumped from 7 to 19. That's just 6 years shy of a full life sentence!

So even strong proponents of the death penalty are agreeing that the system is a complete mess. It takes a long time to find lawyers who WANT these cases. Lawyers like money and these are not high paying cases. So what you end up with in a lot of cases are bad lawyers (not in the above article the lowering of minimum standards and qualifications of lawyers who try these cases) or lawyers who have other motivations.

If I were a struggling lawyer and wanted more clients, or to be noticed and hired by a better paying law firm, how could I get exposure? Death penalty trials are more interesting to newspapers, internet, TV and the lawyers who represent the accused simply get more face time. To increase your face time, and to show that you are a "good" lawyer, you drag the case out as long as you can, not stopping short at even the most frivolous of tactics. It's easy to see why there are so many mistakes made and so many new appeals and why so much tax money is wasted. Incidentally, EVERY case has access to the same appeals processes as death penalty cases. It has been repeatedly said that the severity of the penalty is the reason these are exhaustively used in death penalty cases while a fraction of the appeals available to other people on trial are used by their attorneys. These are lawyers. Excuse the generalization but do they care? About their clients? Getting the death penalty? I mean look at the stat about the lawyers who don't perform even their minimum of due diligence. No, I have an inkling that this mess has a lot to do with lawyers who want higher profiles.

So as we can see, capital punishment IS more expensive than its alternative in the US. But as we can also see, it is only the members of the legal profession and the legal system and legislators that have made it so. There is nothing inherently more expensive about capital punishment, only the way it is implemented in the US. So capital punishment ISN'T more expensive than its alternative.

In the end, my friend and I, conservative right wing and liberal left wing members of the legal profession, and pretty much everybody who does a little research can agree, capital punishment clogs up the courts, wastes tax payer money and actually detracts from justice in the US. It's a failed experiment. There are those who would like to maintain it but limit the seemingly endless access to appeals. There are others who would like to eliminate it altogether. But it is not capital punishment, but the ineptitude of the people who have been charged with its implementation in America who have made it a huge, clusterfuck of a tax moneypit. Hey, it's the good old U$A, what do you expect?