The Death Penalty

I freely admit that my views on the death penalty have changed over the years. Twenty-five years ago, I favored it. Doing one too many criminal jury trials convinced me that the system was just too bound up with human error to be completely comfortable with the death penalty for everyone.

And let us not forget those DNA exonerations, as the Washington Post points out:

The steady drumbeat of DNA exonerations _ pointing out flaws in the justice system _ has weighed against capital punishment. The moral opposition is loud, too, echoed in Europe and the rest of the industrialized world, where all but a few countries banned executions years ago.

Here is Indiana's death penalty statute:

35-50-2-9 b) The aggravating circumstances are as follows:
(1) The defendant committed the murder by intentionally killing the victim while committing or attempting to commit any of the following:
(A) Arson (IC 35-43-1-1).
(B) Burglary (IC 35-43-2-1).
(C) Child molesting (IC 35-42-4-3).
(D) Criminal deviate conduct (IC 35-42-4-2).
(E) Kidnapping (IC 35-42-3-2).
(F) Rape (IC 35-42-4-1).
(G) Robbery (IC 35-42-5-1).
(H) Carjacking (IC 35-42-5-2).
(I) Criminal gang activity (IC 35-45-9-3).
(J) Dealing in cocaine or a narcotic drug (IC 35-48-4-1).
(2) The defendant committed the murder by the unlawful detonation of an explosive with intent to injure person or damage property.
(3) The defendant committed the murder by lying in wait.
(4) The defendant who committed the murder was hired to kill.
(5) The defendant committed the murder by hiring another person to kill.
(6) The victim of the murder was a corrections employee, probation officer, parole officer, community corrections worker, home detention officer, fireman, judge, or law enforcement officer, and either:
(A) the victim was acting in the course of duty; or
(B) the murder was motivated by an act the victim performed while acting in the course of duty.
(7) The defendant has been convicted of another murder.
(8) The defendant has committed another murder, at any time, regardless of whether the defendant has been convicted of that other murder.
(9) The defendant was:
(A) under the custody of the department of correction;
(B) under the custody of a county sheriff;
(C) on probation after receiving a sentence for the commission of a felony; or
(D) on parole;
at the time the murder was committed.
(10) The defendant dismembered the victim.
(11) The defendant burned, mutilated, or tortured the victim while the victim was alive.
(12) The victim of the murder was less than twelve (12) years of age.
(13) The victim was a victim of any of the following offenses for which the defendant was convicted:
(A) Battery as a Class D felony or as a Class C felony under IC 35-42-2-1.
(B) Kidnapping (IC 35-42-3-2).
(C) Criminal confinement (IC 35-42-3-3).
(D) A sex crime under IC 35-42-4.
(14) The victim of the murder was listed by the state or known by the defendant to be a witness against the defendant and the defendant committed the murder with the intent to prevent the person from testifying.
(15) The defendant committed the murder by intentionally discharging a firearm (as defined in IC 35-47-1-5):
(A) into an inhabited dwelling; or
(B) from a vehicle.
(16) The victim of the murder was pregnant and the murder resulted in the intentional killing of a fetus that has attained viability (as defined in IC 16-18-2-365).
(c) The mitigating circumstances that may be considered under this section are as follows:
(1) The defendant has no significant history of prior criminal conduct.
(2) The defendant was under the influence of extreme mental or emotional disturbance when the murder was committed.
(3) The victim was a participant in or consented to the defendant's conduct.
(4) The defendant was an accomplice in a murder committed by another person, and the defendant's participation was relatively minor.
(5) The defendant acted under the substantial domination of another person.
(6) The defendant's capacity to appreciate the criminality of the defendant's conduct or to conform that conduct to the requirements of law was substantially impaired as a result of mental disease or defect or of intoxication.
(7) The defendant was less than eighteen (18) years of age at the time the murder was committed.
(8) Any other circumstances appropriate for consideration.

Muncie's Steven Lambert soon goes to the death chamber. At one time, I partnered with Lambert's death penalty attorney. Yesterday's Indiana Lawyer had an article about how the Seventh Circuit Court of Appeals denied Lambert's last appeal.

The 7th Circuit Court of Appeals today rejected one of the last appeals attempts by a man set to die Friday for the execution-style shooting death of a Muncie police officer in 1990.

A five-page unanimous decision by the three-judge panel in the federal appeals court in Chicago rejected Michael Allen Lambert's claims for relief in Lambert v. Edwin G. Buss, Nos. 03-1015 and 05-2610. The ruling upholds the judgment by U.S. District Judge Larry McKinney in Indianapolis.

The facts, as I knew them then, were that Lambert had been threatened and was carrying a small caliber handgun (a .22 or a .25), he got stinking drunk, was picked up by law enforcement, and he awoke not sure where he was and started shooting. Out of six shots fired, the last was the killing shot. Naturally, the Muncie Star-Press took an interest in the approaching execution by interviewing both ministers and police officers - sort of a moral versus a pragmatic viewpoint. The police officers took a pro-capital punishment view, of course. They see it as a deterrent.

Then there was the Washington Post article I referred to above, the actual article reports on the deterrent effect of the death penalty:

A 2003 study he co-authored, and a 2006 study that re-examined the data, found that each execution results in five fewer homicides, and commuting a death sentence means five more homicides. "The results are robust, they don't really go away," he said. "I oppose the death penalty. But my results show that the death penalty (deters) _ what am I going to do, hide them?"

Statistical studies like his are among a dozen papers since 2001 that capital punishment has deterrent effects. They all explore the same basic theory _ if the cost of something (be it the purchase of an apple or the act of killing someone) becomes too high, people will change their behavior (forego apples or shy from murder).

How does one deter someone drunk like Lambert? How does this report make life without parole less useful as a deterrent?

In all of this, I also ran across a movie review for "Pierrepoint” in the New York Times.

"Pierrepoint” is much more than straightforward fictionalized biography. Once Pierrepoint travels to Germany as the designated executioner of guilty Nazis, the movie confronts you with the obvious parallels between this anonymous functionary carrying out lethal sentences handed down by others, and the Nazi defense that in sending millions to their deaths, they were merely following orders.

***

But his detachment begins to crumble once his occupation is no longer a secret and he returns from Germany to find himself a celebrity hailed by one newspaper headline as an “avenging angel.” The blood lust of the British public unnerves him. His notoriety also cuts two ways. He is called a murderer by protesters at a rally against capital punishment. And in the most excruciating test of his character, his work and personal life converge traumatically.

The wrenching movie ends with a 1974 quotation from Pierrepoint, made nearly two decades after he retired from the profession: “The fruit of my experience has this bitter aftertaste. Capital punishment, in my view, achieved nothing except revenge.”

Yes, it would be so nice for us to think that we can dispose of the monsters through capital punishment but how many of those that do go their state-sponsored deaths are the monsters we fear most? My recollection remains that the majority of Indiana death penalty cases are killers of police or were convicted of felony murder (that is they killed someone while committing another felony such as robbery). That these were bad people, I will not dispute because that is not at issue. At issue is whether they were so evil that society's only means of protection is the death penalty rather than life without parole.

One more thing for your consideration, reconcile the death penalty with the following from Indiana's Bill of Rights: "Section 18. The penal code shall be founded on the principles of reformation, and not of vindictive justice."

Well, PM?