What's Up with the Death Penalty?

The Role of the Death Penalty in Judging Angels

I am a former death penalty lawyer. I am in what has to be a very small club of lawyers who have both prosecuted and defended death penalty cases. Naturally, there are sorta elements of the death penalty included in Judging Angels.

Judging Angels does not take a position. Those who might be expected to be against the death penalty are. It is not a theme, nor is any effort made to resolve it as a moral or political question.

The protagonist is not even practicing law. There are no trials, and the line between good guys and bad guys... gets scuffed.

If it makes any real point about murder cases, it is that prosecutors and defense lawyers both (and the profession in general) might put the macho image aside and address the effect a decades-long diet of mayhem and murder is having on their psyches.

Some Thoughts on the Death Penalty

But since the question is reasonably on the table, let me give my thoughts. No one was ever persuaded on this matter by debate, so that is not its purpose. I've done my part in my way, and it is behind me for the most part.

How can you call yourself a conservative and be against the death penalty? 

In my mind, conservatism has a liberterian streak that holds the government suspect to some degree. To give the government the practical and symbolic power over the individual's life just dosen't strike me as conservative. I suppose since liberals are all against the death penalty, it has become a litmus test. I don't find any logical reason why this should be so.

Someone once said something like, "I don't care if  anyone from the lower class is hanged, but I am am against the death penalty lest they should hang one of us by mistake."

There is very little chance of an innocent person being executed.

I don't want to overstate the chance of that. I agree that most people who are sentenced to death are guilty as charged. But "most" is not "all." Exonerations by DNA and exposure of official corruption in Illinois alone should scare the death penalty out of most people. 

Illinois instituted reforms that did make a big difference. I practiced both pre-reforms and post-reforms, and was involved in implementing them. Things as simple as requiring the videotaping of interrogations in homicide cases are huge. Less than one percent of all Illinois lawyers were certified to handle death penalty cases, and I was on the committee that helped vet them.

Executing an innocent person is a real, if non-quantifiable, threat. I represented one young man in a death penalty case who was actually innocent. That threat makes me queasy. So does the fact that prosecutors disregarded any evidence that did not support a theory of guilt.

We know how wrongful convictions happen. There have been many studies. Eyewitness testimony is less impressive than you might imagine, and is the chief culprit. Some suspects, if engaged with poorly-designed interrogation techniques, will falsely confess. And if that happens, it's almost impossible to get the jury to accept such a counter-intuitive proposition. But I have seen it with my own eyes. To make matters worse, the most needlessly dangerous interrogation methods are the ones most taught to police.

You are not going to have false confessions in DUIs. They come in cases where the police pull out all the stops, and they have the threat of the death penalty to use.

(If a subject is interrogated properly, to include obtaining sufficient details after the "I did it" statement, the risk of false confession drops to nearly zero, except for the occasional loon who just likes to confess to stuff.)

They'll get out and kill again.

Not in Illinois, or any other jurisdiction that has Life Without Parole as the alternative to death. It really does mean that, despite the popular impression.

They'll kill in prison.

Let's agree that some will. More who are not in prison for ex-death penalty cases will kill in prison. This is an excellent argument for executing all murderers, or all inmates, for that matter. Prison is a dangerous, unpleasant place. Anyone who imagines spending your life in a maximum security prison should visit one, if that were possible. The first thing you would notice is the maddening, incessant noise. You will think you have entered Dis, the capital of Hell.

Tricky defense lawyers get murderers off on technicalities.

If only, for the sake of my ego! The reality is, while I managed to avoid the death penalty, I only won one murder trial (after the death penalty had been dropped) before jury. Defense lawyers like to call "technicalities" constitutional rights. For example, a motion to suppress a confession. You have less than a one percent chance winning one of those. (So, what if you have determined it is a false confession? You have to make your best case before the jury.)

The old joke is a conservative is a liberal who has been mugged. A liberal is a conservative whose son has been arrested.

It deters killers.

Very few murderers plan for so much as disposing the body. It is nearly always one or more substance-impaired mopes that decide to kill on the spur of the moment. They're not thinking ahead. They're not thinking about getting caught. They're not thinking very far into the future at all. (That seems to be a common problem among criminals: they don't seem to be able to think beyond their next hit of their choice of drug, or their next case of beer.)

If they did think about it, the possibility of spending the rest of their life in a tiny cell with a toilet and some other creep would probably deter them.

The "master minds" who really hatch elaborate schemes are very rare, and usually far easier to catch than the mopes who stumble into murder.

It is well known among death penalty defense lawyers that defendants much prefer death to a lifetime in prison. In fact, "The Patrick Henry Syndrome" ("Give me liberty or give me death!") is common enough to be a joke. Trust me. In negotiations, getting the prosecutor to drop the death penalty is almost always easier than getting a defendant to agree to life in prison without parole.

Retribution.

Yes. If that argument appeals to you, there's not much I can say about it. Probably the best, effective argument for the death penalty

What if your wife was the victim?

I would take out my revolver and pick up a baseball bat and go after whoever I thought was the perpetrator. That's the reaction a lot of people would have. (Right? Um, seriously, guys, it is, right?) It's natural. But we don't let people who are so deeply invested in the outcome of a case decide it.

Conclusion

Like I said earlier, this is not meant to persuade anyone. Since Judging Angels deals with a currently ex-death penalty defender, I thought I would get the matter out of the way early. There are enough elements of the criminal justice system included to justify calling Judging Angels a police procedural. I wanted to open that door to give the reader a peek into the way things are really done; one they will not find in "Mrs. Farthingale's Yarn Shop Mysteries #14: Knit, Purl, Die."

There is pretty much enough of anything to justify sticking Judging Angels into a genre. We'll call it a psychological thriller, if we have to call it anything. Think of our market problem as your unpredictable novel.

Comments

  1. Congratulations! First comment for this blog. (In this iteration.)

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    1. I decided to shut my piehole on the subject, so technically the honors go to Lurker.

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  2. Very thoughtful, Great Bear.

    Owl finds that he is one of the few that a vigorous debate persuades. Then again, Owl is odd.

    Owl starts from the point that death is not the natural order of things...it doesn't belong and wasn't meant to be. But death is, we all exist under it, none are immune, and it waits and will knock on the door of each of us. From the moment of our conception we find ourselves born onto death row serving out a death sentence and awaiting our allotted time.

    The intrinsic value of the human being is a great thing, for it is in the image of God, but that is also why also that punishment for marring that image is so severe. The unspeakable impossible, death and death for all your progeny, and the threat of eternal separation and unending ending to which all are born falling into that abyss must and does loom large over all lives.

    But the Judge is also the one who saves, He restores those penitent who are unworthy and without merit to life for His glory. As He casts into the abyss others for His glory.

    And so Owl finds that this pattern of the heavens must also be manifest in the Courts below.

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  3. There is a site - I'm too lazy to find it right now - that is a collection of the last words of executed people. The run the gamut from anger, to protestations of innocence, to apologies to victim families. I found it quite interesting. These are persons. Like I said, no one was ever persuaded by debate on this topic, and that was not my intention. I think it's natural for potential readers to wonder about what someone touted as an award-winning, perfect-record death penalty attorney has to say on the topic, and to what, if any extent the death penalty per se is a theme of the novel.

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