New Mexico joins Western civilization

>> Monday, March 23, 2009

Last week, New Mexico joined Western civilization, outlawing capital punishment.1 Now if we can just get the remaining states to follow suit.

With the rash of DNA exonerations over the past decade-or-so, and plenty of scientific evidence accumulating that central tools our criminal justice system depends on are simply unreliable, and considering the fact that it's always been true that the process isn't about what really happened so much as it's about what a jury thinks happened, it's not all that clear why anyone would think it was a good idea to have the institution of the death penalty. I mean, let's leave aside the question of whether anyone deserves the death penalty, and just say for the sake of an argument that there are rat bastards who don't especially deserve to live: do you really trust government to figure out who those people might be?

This may seem like a weird argument from a liberal, but conversely it's no weirder than conservatives who don't trust the government to write checks entrusting the government with human lives. And the consistency, such as it is, in my question is this: I do trust government to write checks to highway contractors and people dependent on welfare and school districts and such because if they screw up--and they do screw it up sometimes--at least nobody is dead as a result. Usually. And if it's just money, sometimes it's fixable, sort of, maybe. Convict the wrong man based on questionable testimony and send him to Death Row, there's no takebacks and do-overs. You're done. I guess you can send an apology letter to the families.

While we're on the subject, my favorite line in the news article is this:

District attorneys also opposed the legislation, arguing that the death penalty was a useful prosecutorial tool.

This is, of course, completely true. The death penalty is a useful tool for prosecutors, and getting rid of it does burden the State. But before capital punishment proponents, if there are any in this crowd, get too eager to say, "Aha!" let's talk about Alford pleas.

Allow me to tell you a story: once upon a time (1963), there was a man named Alford who was accused of taking up his shotgun, telling everybody within earshot he was going to shoot a man, and then going over to the man's house and shooting him.2 And so the State Of North Carolina took ol' Alford to court and they told his lawyer that Alford had a choice between taking a plea to Second-Degree Murder and taking a prison stretch or taking his chances in front of a jury. And Alford, being a bit smarter when he was sober, said, "I ain't shot no man, but... [I'll plead] guilty because they said if I didn't they would gas me for it...."3 And this led to a bit of a brouhaha over whether a man could plead guilty without saying he really did it, and it went all the way up to the Supreme Court of the United States, and ol' Justice Byron White and five of them black-robed titans of American law said, in so many words, that they could see the sense in saying you were guilty of something you say you didn't do if you were going to get gassed if a jury thought you did.4 Which you might think would be grounds for saying maybe we shouldn't ought to gas people if juries can't always be depended on to sort out who we should and shouldn't be gassing, but that isn't what the U.S. Supreme Court decided. Sure Justice William J., Brennan leaned towards "maybe killing people by mistake" is a bad idea, along with Justices Douglas and Marshall, but those gents always leaned a little starboard anyway. No, what the Supreme Court held was that there was no difference between saying "guilty" and saying "no contest" if you knew what you were doing, and a man who didn't like the thought of trying to hold his breath in the little windowed room in Central Prison probably knows what he's doing.5

So it's legal to say you're guilty of things you didn't do if you have a good reason for it,6 and a good reason for it might be that you're afraid that a bunch of eyewitnesses who may not know what they're talking about might talk a jury into thinking you're a guilty man. And if you're charged with First-Degree Murder in a capital punishment state, your life expectancy declines precipitously (you'll live longer in California, where they like to give people appeals and due process, than you will in Texas, where they don't).

Hence those prosecutors in New Mexico being upset that an arrow is being pulled from their quiver with the pending abolition of the death penalty. See, what this means for them is that instead of being able to go and indict a guy for First-Degree murder, planning the whole time on offering him First-with-life or Second-Degree if he'll just do them the courtesy of saving them the trouble of a trial, holding death over his head as a threat if he doesn't--instead of that, they'll now have to be more discriminate in their indictments and plea offers. Oh, no doubt they'll still indict some folks on First-Degree while planning on offering Second, but for some of those defendants there won't be enough of a difference between thirty-year sentences and the rest of their lives (around age forty, frankly, it starts becoming about the same thing actuarially-speaking).

In short, yes: abolishing the death penalty means that prosecutors will, in some cases, actually have to prove to a jury that a man is guilty before they convict him. Which is sort of how the whole thing is supposed to work to start with.

So, New Mexico has joined Western civ, making it a little less of a good idea and a little more of a reality. We may get there yet.

1No European nation's laws currently authorize the murder of convicted criminals.

2Cigarettes and whiskey and wild, wild women will bring you no good.

3400 U.S. 25 (1970) FN2.


5These days, of course, we North Carolinians stick a little pin in your arm and it's just like going to sleep... and having a heart attack.

6In case anyone wonders: yes, I do a lot of Alford pleas. Doesn't mean I always like it. But you frankly have to sometimes tell a client that their story is unbelievable if it's true, and while it's ultimately their decision (and it always is the client's decision), you have to ask is it worth the risk of a lengthy jail sentence when the district attorney is guaranteeing probation or agreeing to tie the judge's hands to doling out one sentence instead of several consecutive sentences. Or a situation in which there are other benefits to pleading out: e.g. one offense may have requisite sex-offender registration requirements while another, similar charge has no such requirement.

There are times, too, when an Alford plea serves as a compromise that allows a defendant who did something wrong to save face by accepting consequences without accepting guilt.

Still, it's not really a plea that makes anybody happy, even when they routinely use it.


Tom Monday, March 23, 2009 at 2:06:00 PM EDT  

Eric, damnit, you are the straw that broke the camel's back! While that may not have been an intended consequence (or quite possibly it was in a general sense, though not directed at me in particular), you have changed my mind on the death penalty.

I've been seeing a lot of stories of exonerations based on DNA, and even though I'm from Texas I've really always been a "it's better that a guilty man go free than an innocent man be wrongly convicted" kind of guy, and your post pushed me right over the damned line!

Thanks, buddy. Seriously.

Eric Monday, March 23, 2009 at 3:44:00 PM EDT  

You're welcome, Tom--and thank you.

vince Monday, March 23, 2009 at 7:46:00 PM EDT  

I have philosophical and religious reasons for opposing the death penalty, but even if I didn't, I would oppose it until such a time as it became impossible to convict and innocent person of a capital crime.

Since I can't see that ever happening, I can't see any circumstances under which I could be convinced that the death penalty should be an acceptable legal punishment.

John the Scientist Tuesday, March 24, 2009 at 12:10:00 AM EDT  

I'm not opposed to the death penalty, and if the state didn't execute someone who killed a family member, I would not rest easy until the sonofabitch breathed his last. I am a vengeful bastard.

And if the state let them out before they expired in prison...

But I agree with you. The system as it stands seems to arrive at verdicts much easier than it arrives at truth. Unlike Vince, I don't set impossible standards for living in the real world - both my sense of justice and sense of human nature approve of the death penalty. But I would not allow prosecutors to bargain with it, if a case deserves it, then the prosecutors should pursue it, or decide that the crime does not warrant death.

I think I'd be OK with one in somewhere between one in 10,000 and one in 100,000 false positive rate. It seems to me that the system as it stands gives a false positive rate of greater than one in 50, possibly much greater, and that's not something I'm comfortable with.

Nathan Tuesday, March 24, 2009 at 7:57:00 AM EDT  

If I take Vince's view and John's view, I lean toward John's view. Since I'm a little bit less inclined to accept even such a small rate of false positives, I prefer a system that applies a sentence of life without possibility of parole for appropriate crimes. And I prefer that the sentence be carried out in solitary confinement with no human contact and no entertainment materials whatsoever...nothing to watch, nothing to read...nothing! (Attorney visits and case materials would be permitted during appeals, but nothing else.) I wouldn't be upset if they were fed the same meal three times per day in perpetuity either.

And I'd be pissed off the day the Supreme Court decides this constitutes cruel and unusual punishment.

Leanright,  Wednesday, March 25, 2009 at 5:58:00 PM EDT  

I have supported the Death Penalty most of my life, but I have always wondered what I would do if the decision were up to me. Doesn't seem like my job to decide of someone should die. BUT, a legitimately conviced murderer ALSO shouldn't decide on the fate of an innocent victim.

If someone, like Timothy McVeigh confesses, and wants to be put to death, why should WE stand in the way? That's similar to a terminally ill patient wanting to die. That's their choice.

Eric Wednesday, March 25, 2009 at 10:11:00 PM EDT  

McVeigh is actually a special-case example of another problem with the death penalty. In McVeigh's situation (which may also arrise with terrorists, members of organized crime, and other conspiracy-members), there's a reasonably high probability that he had associates who were not found, arrested and indicted for their role in the Oklahoma City bombing.

Would McVeigh have ever talked? Maybe not, but now he can't. Any secrets he may have been hoarding, he's literally taken to the grave. If there was any chance he might have grown a conscience fifteen or twenty or forty years into a life sentence (and remember, no statute of limitations on murder--his co-conspirators could have been indicted at any time), it's utterly gone now.

I actually considered mentioning it in the main post, but like I said, it's a special case. A recurring special case--you might have a similar situation arrise with a Mob hitman or a convicted terrorist--but nonetheless atypical. Thank you for bringing it up.

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