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Sunday, February 12, 2006

Death Penalty Reconsidered

The recent delay of execution for Michael Morales raises lots of fun questions.

California was temporarily stopped from completing a trifecta: 3 whacks - a Black man (Stanley "Tookie" Williams), a White man (Clarence Ray Allen) and a Hispanic (Morales), thereby reaffirming California as the foremost equal opportunity state.

Morales' snuff party was halted by the inability of the state to comply with a federal judge's concern that the "lethal injection" procedure was "cruel & unusual." The judge was nervous about reports that previous deaths were too painful for the inmate. The state has the power and right to terminate a life, but not to torture or inflict extreme pain. Doctors he ordered to be present to insure that Morales was unconscious when he was administered the lethal cocktail balked, citing their own ethical qualms about their role.

The upshot was an "indefinite" stay of execution while the judge conducts a full hearing. The family and friends of the victim, a 17 year old girl who was beaten, raped and murdered by Morales in 1983, were quoted as being extremely upset with "the system" because they couldn't achieve closure.

My own point of view, as a lawyer who defends capital clients in trials, is a bit different. First, I am a bit amused by the debate over the form of death. Trial lawyers (with our own gallows humor) used to bemoan our futile efforts in bad cases by muttering that the best we could get for a client was a seat on the shady side of the bus to prison.

Personally, I think the worry over a painless death penalty is a sick joke. Why not make it painful and, while we're at it, let's make it public. If it is designed to deter others, to extract vengeance, and to "satisfy" the victim's family, let's see what televised drawing and quartering would accomplish. It would be a surefire reality show hit and some of the proceeds could be given as restitution for the victims.

Secondly, I'm not opposed to Capital Punishment - in theory. Some people have committed such horrible crimes that they simply deserve to die.
Executing some people might deter others from killing; at least it will deter that person from killing again. I am not sure that respect for the value of life doesn't justify the forfeiture of one who takes a life. I have sympathy for the victim and loved ones who demand swift justice and closure.

Of all the reasons set forth for death, the hardest for me to deal with as a human and as a lawyer (not yet mutually exclusive, I hope), is the last one above, that the suffering of the victim's family should be vindicated. That one bothered me for a long time.

The evidence of "victim impact" which is now permitted in capital trials is the toughest for defense lawyers to deal with. The victim who was mother, father, son, brother, or friend to someone is gone and it hurts to see the photos and hear the stories of the holes left in the hearts of loved ones.


But then I thought about someone I loved who was killed some years ago. She was tortured for 16 months, in almost constant pain and fear. She was completely innocent, and didn't deserve to die. She was only 46 and she had parents who had survived the Holocaust, a sister, me, her 12 year old son. We all needed her, and I was furious with her killer. It was so unfair; so -- unjust.

But I had no one to focus my vengeful desire on; her killer was cancer. I couldn't even sue the doctors who had tried everything to save her life. Does that mean that I can never have "closure?"

No, while the idea of "closure" by legal system is a powerful emotional argument by death penalty proponents, it is not only a lie, it is a cruel hoax abetted by so-called "therapists." To permit one's grief to be dependent upon any institution is useless and mean. The legal system is not designed for that purpose, nor should it be.

Of course, there can be no justice, no "closure" if the wrong person is executed. Experience has shown that a lengthy, expensive, and thorough appellate process is needed. Closure is thus necessarily delayed for 10 or more years.


Closure is essential no matter the cause of the death of your loved one. Are you less bereaved if you lose someone to disease, accident, negligence, or the many acts of violence that our laws do not categorize as death penalty eligible killings?

Do we want a system that executes people based on the passions of victims? What if the victim or loved ones were opposed to capital punishment? Should that “wish” be honored?

In fact, there are many victims who do not want this result. (See Murder Victims Families For Reconciliation: http://www.mvfr.org/)

By the way, contrary to common sense, the evidence is now clear that the death penalty does not deter others from killing. In Texas, executions are commonplace (355 since 1982), yet the murder rate is higher than New York’s which has 0 executions (6.1 murders per 100,000 population vs. 4.6 in N.Y.). See Death Penalty Information Center and compare the facts. (http://www.deathpenaltyinfo.org/state/).