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Friday, September 23, 2011

On Protecting The Innocent, Or, Is There A Death Penalty Compromise?

I don’t feel very good about this country this morning, and as so many of us are I’m thinking of how Troy Davis was hustled off this mortal coil by the State of Georgia without a lot of thought of what it means to execute the innocent.

And given the choice, I’d rather see us abandon the death penalty altogether, for reasons that must, at this moment, seem self-evident; that said, it’s my suspicion that a lot of states are not going to be in any hurry to abandon their death penalties anytime soon now that they know the Supreme Court will allow the innocent to be murdered.

So what if there was a way to create a compromise that balanced the absolute need to protect the innocent with the feeling among many Americans that, for some crimes, we absolutely have to impose the death penalty?

Considering the circumstances, it’s not going to be an easy subject, but let’s give it a try, and see what we can do.

Let’s Fix An Error Dept.: Apologies are in order, because in our last story we identified The Riverside Church in Manhattan as the place where George Carlin learned to be Catholic – and that could not have been more incorrect. Bad research was the culprit here, and it’s something that we’ll obviously be working to improve. So, once again: sorry, and my bad.

Now if all the states want to limit the imposition of the death penalty to just the guilty (and after what we just saw in Georgia, that’s no longer 100% certain), one way you could do it would be to make it a lot harder to prove guilt – and that’s what we have in mind for today’s proposal.

As you may recall, we convict today with a “burden of proof” that is described as “guilt beyond a reasonable doubt”; as we now know, it is possible to prove guilt, beyond a reasonable doubt, even when there’s a whole lot of reasonable doubt to be found.

In Davis’ case, he was given a chance on appeal to prove his innocence, and despite this conclusion from the Judge hearing the case…

"Ultimately, while Mr. Davis's new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors…"

…Davis was still executed.

So the way I would get at this problem would be to change the burden of proof in these cases: if you want to execute someone who is facing an aggravated murder or other capital charge, instead of “guilt beyond a reasonable doubt”, I would require “guilt beyond all doubt”.

If you can’t get to guilt beyond all doubt, but you can prove guilt beyond a reasonable doubt, then you could impose no sentence harsher than life without parole.

If this proposal had been in effect in Davis’ case, there could have been no execution after he argued that he was denied the effective assistance of counsel, because that would have erased “all doubt”; after that he would have had the rest of his life to demonstrate that he was wrongly convicted.

There are going to be a few reasons people might not like this proposal, and I’ll try to address some of them briefly:

Right off the bat, many will complain that because of the new burden of proof it will be virtually impossible to have executions at all; I would tell those folks that if that were to occur…then the system is working. The entire purpose of this plan is to make executions an extraordinarily rare occurrence and to move just about everyone on Death Rows nationwide to a “life without parole” future.

Beyond that, many will say that capital punishment is morally unacceptable under any circumstances, and to those folks I would respond that y’all make a pretty good point…but at the moment there are a lot of Americans who do not hold that moral position – and they have strong feelings too – and unless we can move them to a different point of view, then the best chance we have to prevent the innocent from being executed is to find some sort of compromise like this one.

(Don’t believe me about that “strong feelings” thing? How many of the readers here would be OK with the death penalty for Osama Bin Laden, if he were proved “beyond all doubt” to have been the person behind 9/11?)

A similar line of thought is expressed in the idea that we are seeing more and more voters who do oppose capital punishment, and with a bit of patience, this problem will go away.

After what happened to Troy Davis, I think there’s more urgency now than there was in times past, and that’s because we now see that at least one State will quickly kill a prisoner in order to “clear the case”, suggesting to me that patience is not as good an option as it was before.

Finally, I suspect many will feel that the effort to pass a proposal like this one would distract from the effort to end the death penalty, which is, again, a pretty good argument.

To those folks I would respond that we may get some states to end the death penalty today, but there are a lot of other states that are not going to want to give up the death penalty for some time to come (remember the people who cheered Rick Perry’s execution record?), and if we aren’t going to be able to end the death penalty completely, then I think we have to offer some sort of compromise; a compromise based on the concepts of “killing the innocent isn’t The American Way” or “you could still execute Osama” could appeal to voters who simply won’t give up on the death penalty altogether.

So that’s what we have for you today: even though I personally would prefer that we end the death penalty and just go to life without parole for all these crimes, I don’t think we’re going to achieve that in a lot of states; with that in mind I’m proposing a compromise that would protect the innocent by ending virtually all executions, even as it allows an extraordinarily difficult to reach exception that could satisfy those who absolutely do not want to see the application of the death penalty come to an end.

It’s an imperfect compromise, I’ll admit – but in a big ol’ swath of America that runs from roughly Florida to Idaho, it may be the best compromise we can make right now, and right now, in those places, that might have to be good enough.

Entirely Off The Subject Dept.: We are still trying to get signatures for the petition to change the name of Manhattan's W 121st St (one block from Seminary Row) to George Carlin Street, and we need your help; you can sign right here. The goal is to reach 10,000 signatures by Monday, so...get to it.

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