The problem with capital punishment

When it comes to implementing the death penalty justice requires certainty. When it comes to human affairs certainty is nearly impossible.

By ANDERSON HARKOV
November 11, 2009 21:58
4 minute read.
Gavel lying in front of a judge courtroom lawyer lawsuit

Gavel lying in front of a judge. (photo credit: INGIMAGE)

It has been said that one can evaluate the standard of civilization of any country by observing how it treats its convicted criminals. While I am not sure that statement is always accurate, the prevalence of the use of the death penalty in countries with horrendous human rights records, such as Iran, China, Saudi Arabia and Sudan, lends much credence to this statement.

Recently Stewart Weiss called for Israel to reinstate the death penalty in The Jerusalem Post (November 5). Israel does not need the death penalty.

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It will not obtain justice for the victims of murder and terrorism nor will it act as deterrent. Indeed, given the prevalence of suicide bombers who want to die for their misguided causes, it actually might encourage terrorism. The death penalty would only result in Israel being included among the uncivilized nations of the world.

THE HUE and cry for vengeance in the last few weeks has come as a result of the horrific murder of the Oshrenko family and the arrest of a suspect. Coincidentally, public television in the United States just released a documentary on the infamous Leo Frank case. Simultaneously almost every week a convicted criminal is executed in the US.

What is less known among the general public is that the US has come close to executing scores of innocent prisoners and probably has executed some who were indeed innocent. As a former criminal defense attorney in the US, who represented numerous defendants accused of capital crimes, I have a personal perspective on the death penalty in practice, although admittedly, and luckily, none of my clients ended up on death row.

I remember when I was as a young attorney the case of Bryon Halsey from Plainfield, New Jersey. Halsey would babysit for his girlfriend's two young children, a girl and a boy. One day Halsey left them alone to go to a nearby store. The two children were discovered brutally murdered. The deaths were horrendous, involving all sorts of horrors I cannot share in a family newspaper. Halsey was arrested. He confessed to the murders and was tried for capital murder. Witnesses placed him at the scene. He was convicted. The entire criminal bar was convinced he was guilty and that he would be the first man in New Jersey to be executed since the death penalty was reinstated in the early 1980s. Somehow, the jury spared him and gave him a life sentence. More than 20 years later the police were finally prevailed upon to perform DNA tests on semen found on the victims' clothes. To the astonishment of everyone but a few lawyers, the semen did not match Halsey. Instead it matched a convicted sex offender in prison for crimes committed a year after the so called Halsey murders, who happened to be a neighbor who testified against Halsey. Halsey was released.

Leo Frank was convicted of murdering a young girl who worked in his pencil factory in Atlanta, Georgia in 1913. Despite strong evidence implicating a janitor who actually admitted to the crime, and despite Frank's protestations of innocence, he was convicted and sentenced to die. The Georgia governor commuted his sentence to life in prison because he believed Frank was innocent. A frenzied mob, led by the notorious Ku Klux Klan, broke into the local jail, kidnapped Frank and lynched him. A few years later Frank was exonerated. Many years later a dying man came forward and cleared his conscience by stating the janitor had confessed to him that he killed the girl. The only thing Frank's execution accomplished was the loss of an innocent life and an increase in the popularity of the Klan in the South, which to that point had a history of racism but not anti-Semitism.

Frank is often called America's Dreyfus. This is a misplaced analogy if there ever was one. Dreyfus suffered severe injustice, however he was not executed by the legal system or a mob and, curiously, actually resumed his military career after his exoneration.

RECENTLY, A man named Cameron Todd Willingham was executed in Texas. Last minute appeals were turned aside despite reports by noted scientific experts that indicated the scientific evidence used to convict Willingham was fraudulent and the fatal fire he was convicted of starting was accidental. Thus, Texas probably executed an innocent man. No wonder Texas is known as the death state among those opposed to capital punishment. As these cases illustrate vengeance and justice are not equivalent.

When it comes to implementing the death penalty justice requires certainty. When it comes to human affairs certainty is nearly impossible. Indeed, the conservative American columnist George Will once referred to capital punishment as yet another poorly run government program. As I successfully argued too many jurors in urging them to spare my clients: If you impose life imprisonment, you will not fail to punish the accused, you will merely fail to kill him.

The writer is a certified criminal trial attorney in New Jersey. He represented many clients facing the death penalty before capital punishment was abolished by NJ in 2007.


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