Death Penalty No Longer a Major Issue

Wednesday, 31 Aug 2011 03:08 PM

By Susan Estrich

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When he was district attorney of Los Angeles more than a decade ago, Gil Garcetti was for the death penalty. While he himself never tried a death penalty case, his office prosecuted more than any other county in California.

That was a point of pride — at least back then. Had he not been pro-death penalty, there is very good reason to believe he never would have been elected.

This week, Garcetti joined a new coalition that is trying to end the death penalty in California, arguing that it serves no purpose and unnecessarily taxes the system, imposing costs that would better be spent solving crimes and supporting efforts to keep kids from going into crime in the first place.

Have the times changed, or has Garcetti? My guess is some of both.

Garcetti's starting point is that the death penalty doesn't work, that it does not deter crime. There are certainly studies that confirm this. There are also studies that don't. My own research confirms that both sides can point to studies.

Anti-death penalty advocates argue that it didn't deter the 600-plus murderers who are being held in isolation in expensive death row cells. Pro-death penalty advocates argue that you just can't know how many bad guys did not pull the trigger.

The morality of the death penalty is, of course, a personal decision. If you believe it is wrong for the state (or the federal government) to take a life under any circumstances, then the deterrence debate doesn't matter.

That is not what I believe. I can think of plenty of really bad guys — think 9/11 plotters, or the guy who shot a pregnant woman at an ATM, aiming at her stomach to ensure it would be a double murder — who have no right to live.

My view has always been that the death penalty puts much-needed pressures on the system to not make mistakes and to ensure proper procedures are followed — in short, to get it right. Ideally, that pressure would improve the administration of justice for those accused of less heinous crimes, as well.

At least three things have changed in the past 10 years.

First, the advent of DNA evidence has eliminated one of the most common sources of mistakes in the system. We don't get the wrong guy anymore, or at least we shouldn't.

Mistakes that were made decades ago — we read those headlines all the time, even though they are very much an exception and not the rule — shouldn't be made again. There's an argument in favor of the death penalty.

Second, the notion that death penalty cases would bring out the best in the system — the best lawyers arguing in carefully selected cases with judges carefully and deliberately ensuring that justice is served —also has proved to be overly optimistic. My old boss Justice John Paul Stevens was pro-death penalty when he first joined the U.S. Supreme Court.

I will always remember the night my co-clerk and I drove to Stevens' apartment with a stay application from the first person executed against his will in more than a decade. Stevens considered the application carefully. He consulted with like-minded Justice Potter Stewart.

They concluded there were no errors below. By the time he retired, Stevens had become one of the Court's most consistent death penalty opponents, not because his moral beliefs had changed, but because he became convinced that these cases were not being handled with the care warranted when death was the penalty.

Third, the political climate has changed. In the '80s and '90s, support for the death penalty was the litmus test for being "tough on crime," and being "tough on crime" was a prerequisite to winning, even in California.

When Kathleen Brown (Gov. Jerry Brown's sister) ran for governor of California in 1994, her opposition to the death penalty was one of her opponent's strongest attack points. By the time her brother won (most recently), it was hardly an issue. Nor was it a major issue in the 2008 presidential election, which resulted in the first anti-death penalty president in at least 30 years.

So it is no longer political suicide to support Garcetti's initiative.

The most troubling aspect of Garcetti's argument — or, depending on your view, the most persuasive — is his claim that the money being spent to house these prisoners (who, by definition, have very little to lose by prison savagery) and provide them with more lawyers and more hearings than anyone else could better be spent solving murders and rapes.

According to Garcetti's figures, nearly half of all murders and more than half of all rapes are never solved. For obvious reasons, these are most likely to be those committed by strangers, because those are (even with murder and certainly with rape) the hardest to solve.

Obviously, if there's an almost even chance that you won't ever be caught, the power of any deterrent, even if there is some in the abstract, all but evaporates.

And this brings me to my bottom line.

I don't know about the death penalty, but I do know this: Swift and certain punishment, even if it is only life imprisonment, is a far more effective deterrent than an even shot at getting away with it. If I had my way, that's what we'd be discussing right now, separate and apart from the overheated rhetoric that tends to accompany debates about the death penalty.



© Creators Syndicate Inc.

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