It is time to abolish the death penalty. It serves no purpose in a
modern society. It is imposed disproportionately on the poor, and on
individuals of color. Even if we could eliminate those disparities by
providing the best legal defense to all accused, and by imposing
stringent legal safeguards - - if we had the most perfect legal system
humanly possible - - there would still be errors made in the impositon
of the death penalty, because human beings make errors.
I speak from experience. Although I have never represented a person
charged in a death penalty case, I have, when I served as a
court-appointed criminal defense lawyer in California, dealt first-hand
with certain issues which are common in death penalty cases.
One area ripe for error is eyewitness identifications. It is
commonly assumed that nothing can be more reliable. But psychological
tests carried out in a scientific manner prove otherwise. Individuals
asked to report what they saw, after witnessing a staged event, under
controlled conditions frequently give erroneous information. That event
might be a mock purse snatching in the midst of an audience in a
classroom. Witnesses asked to report what they saw will often be
mistaken as to such details as race of the perpetrator, size of the
perpetrator, and type and color of clothing worn. In a real situation,
add the elements of trauma (particularly in the case of a witness to a
murder), and the fact that the witness will probably be questioned by a
law enforcement officer who has his own hunch concerning who committed
the crime. The witness wants to please law enforcement, and the officer
may intentionally or unintentionally, give subtle cues, such as by
putting his thumb near one particular face in a photo line up. Once the
witness sees a face in a photo line-up, he or she will be more inclined
to identify that person if the person subsequently appears in a live
line-up. This is not the kind of testimony that can be shaken by a lie
detector test, or even by cross-examination. In many of these cases,
the problem is not that the eyewitness in intentionally lying. The
problem is that the witness is convinced of the accuracy of his
identification, but is mistaken. And it is important to note that a
witness who is convinced of the accuracy of his testimony is likely to
convince others.
Another difficult area is that of confessions. Evidence of a
confession may come from a written statement, or from a witness to the
confession. The witness may have a motive to lie, or may be mistaken as
to what he has actually heard. A suspect may give a false confession
for a variety of reasons: coercion by the questioner, motivation to
protect another, or mental illness. I vividly remember an episode in
the television series L.A. Law, in which a likeable character
with a mental deficiency was caught soon after a rape had occurred.
When confronted by the police, he immediately blurted out that he had
done a bad thing. The police took this as a confession. The television
drama ended with the revelation that the young man had visited a porno
store, and viewed something that he knew his mother would have
disapproved of. That was the "bad thing" he had "confessed" to. Of
course, this being a television drama for family viewing, all ended
well. But true life situations do not always end with such feel-good
scripted endings.
A great deal of attention has recently been drawn to DNA evidence.
Some individuals who claim to support the death penality are now saying
that we should go slowly, if there is a potential for finding and using
DNA evidence to insure accuracy of the verdict. What DNA has showed us
is that errors are sometimes made. But every criminal case is
different, and DNA evidence is not always available. The blood, the
saliva, the semen, or the hair may simply not be there. But we know
because of the DNA cases that errors are sometimes made. Are we willing
to live with the errors that remain undiscovered, because the physical
evidence which would make testing possible is unavailable? Perhaps we
can live with a certain error rate, if we are locking someone away. But
there is no way to compensate a human being mistakenly convicted, if
you have taken his life.
Finally, I would like to address the issue of closure for
the victims' next of kin. I have never lost a loved one to an act of
violence, but I have suffered losses -- a sister to colon cancer, a
common-law husband to a hospital infection following a collapsed lung,
and years ago, my mother to a heart attack. I still live with these
losses. The memories are fresh, and the longing is still there. I know
what grief is. I suppose that there is a special horror when the death
of a loved one is caused by violence, but I believe that the heart of
grief is not how the loved one died, but rather the loss itself. With
each of my losses, there was some questioning on my part: had the
doctors done enough to prevent the death? If I had had before me any
evidence of malpractice, I am sure I would have focused my anger, and
wanted vengeance. But sometimes no one is to blame. And sometimes,
someone is to blame; but you just can't be sure who that person is. I
don't believe that any true healing can occur, with a lingering thought
that the person accused might have been wrongly convicted and sent to
his death. Adding that particular guilt to the grief cannot bring
closure.
In addition to appearing on this web site, the above article
was published in The Montgomery Gazette on Friday, July 21,
2000 (p. A10) under the title Death penalty serves no purpose in
a modern society. You may find the article at the web site for the
newspaper:
Montgomery Gazette