My Aussie anti-death penalty friend Dorina Lisson sent me ‘The Death Penalty Is a Miscarriage of Justice: It Should Be Abolished,’ a long article written and posted August 15 on his Rutherford.org website by John W. Whitehead who describes himself as a ‘constitutional attorney.’
Whitehead drones on an on with the usual claptrap put forth by the opponents of capital punishment. One thing that these people are good at is distorting the truth in their arguments against the death penalty. Whitehead is no exception. After all he’s a lawyer, and as the saying goes: The only difference between a lawyer and a liar is the spelling.
I am going to rebut some of the major points Whitehead makes.
AN IMPLICATION OF INNOCENCE IN SEVEN OUT OF TEN CAPITAL CONVICTIONS
WHITEHEAD: Thus far, the greatest argument in favor of a moratorium on the death penalty rests in the overwhelming evidence that the system is consistently error-bound and flawed. In a Columbia University study on 5,760 capital cases, the report found an overall rate of error of 68 percent. In other words, courts found serious reversible errors in nearly 7 out of 10 capital cases. The most common errors included egregiously incompetent defense lawyers, prosecutorial suppression of evidence and other misconduct, misinstruction of juries, and biased judges and juries. As U.S. Supreme Court Justice Ruth Bader Ginsburg once observed, "I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well represented at trial... People who are well represented at trial do not get the death penalty."
REBUTTAL: I am not about to question the Columbia University study. However, Whitehead cleverly inserts the study into his arguments against the death penalty because he damn well knows that when the study claims ‘the courts found serious reversible errors in nearly 7 out of 10 capital cases’ it implies that seven out of ten convicted murder defendants were actually innocent. Nothing could be further from the truth. Errors committed by the prosecution do NOT equate to innocence! I am sure that had Columbia University studied the retrial of those cases it would have found that the vast majority of those defendants were reconvicted. And while I agree that poor defendants often end up with lousy lawyers – I have long advocated that capital murder defendants be provided with competent attorneys - Justice Ruth Bader Ginsburg lacks objectivity because she has been an outspoken opponent of the death penalty.
THE DEATH PENALTY IS RACIST
WHITEHEAD: The racial disparities in sentencing are well known. For example, there are 1,371 blacks on death row (42% of the total death row population) despite the fact that blacks only make up 12% of the U.S. population. Indeed, blacks are 40% more likely to be sentenced to death than a white defendant who has committed the same crime.
REBUTTAL: It often pays to play the race card. The fact that 42 percent of those on death rows are black, while blacks only constitute 12 percent of the population, does not mean they have been sentenced to death because of racism. It is a sad fact that blacks commit a disproportionate amount of crime and so it stands to reason that they also commit a disproportionate number of murders. Call me racist if you will, but when I watch the nightly TV news, the majority of the culprits shown on surveillance videos are black. And the majority of the burglars, robbers and murderers shown when arrested or arraigned in court are black too. And in our cities, there are daily killings by blacks who are members of street gangs like the Bloods and the Crips. And if ‘blacks are 40% more likely to be sentenced to death than a white defendant who has committed the same crime’ it is because the criminal history of the black defendants was far more extensive that of the white murderers.
THE DEATH PENALTY IS NOT A DETERRENT TO MURDER
WHITEHEAD: As for the argument that the death penalty is a deterrent to future violent crimes, there is no convincing evidence to support that claim. Indeed, 67% of U.S. police chiefs do not believe that the death penalty significantly reduces the numbers of murders. One study determined that there was no appreciable difference in murder rates before and after states had either reinstated or abolished the death penalty. Due to the slow process and infrequent occurrence of death sentences being carried out throughout the United States, most regression analysis studies are unable to prove the efficacy of the death sentence. As Gregory Ruff, a police lieutenant in Kansas, noted, "I have never heard a murderer say they thought about the death penalty as consequence of their actions prior to committing their crimes."
REBUTTAL: Studies claiming that the death penalty does not act as a deterrent have been deliberately skewed by the opponents of capital punishment. No study has ever shown that the death penalty does not deter homicides. At best, the studies touted by the opponents of capital punishment have been inconclusive. The statement that ‘67% of U.S. police chiefs do not believe that the death penalty significantly reduces the numbers of murders’ is quite misleading. What kind of murders are they talking about? A significant number of murders are crimes of passion. The death penalty will not deter killings committed in the heat of passion, but then nothing will deter those kinds of murders. However, the death penalty does act as a deterrent to premeditated murders and felony murders (killings committed during burglaries, robberies, sexual assaults). When I was a California cop, many armed robberies were committed with empty guns. It was common practice for us to ask a crook why he committed a robbery using an empty gun. The response almost always went something like this: I won’t carry a loaded gun because, if I have one, I might kill someone in a moment of panic, and I don’t want to get topped (executed). And a review of executions and homicides in Texas by criminologist Raymond Teske at Sam Houston State University and Duke University sociologists Kenneth Land and Hui Zheng showed there was a monthly decline of between 0.5 to 2.5 homicides in Texas following each execution. (‘Study Says Texas Death Penalty A Homicide Deterrent’ by Michael Graczyk, Associated Press, January 7, 2010)
ONE IN EVERY TEN OF THOSE CONDEMNED TO DIE ARE INNOCENT
WHITEHEAD: ………. police officers, prosecutors, juries, and judges have sent many innocent men to death row. Since 1973, 138 people have been released from death row after evidence of their innocence was brought to light, each person spending an average of 9.8 years in prison. That amounts to one in every ten prisoners condemned to die since 1976 being innocent. Yet human nature and the law of averages decree that if more than 100 individuals have prevailed in proving their innocence, there must be many more who have not been able to do so. Whether through lack of resources, opportunity or time, these individuals go to their deaths innocent of the crimes for which they were charged. One such person is Cameron Todd Willingham, accused, tried, and convicted of setting a fire that killed his three children in 1992. He was put on death row and executed in 2004. However, since his death there has been a rigorous investigation into the circumstances surrounding the fire that suggests Willingham was, in fact, innocent.
REBUTTAL: Hold your horses. Some of those 138 people were not innocent. They simply could not be retried because, with the passing years since their trial, witnesses could no longer be located or, in some cases, evidence had been disposed of. And with thousands of inmates on death rows, that ‘one in every ten’ number is highly suspect. Furthermore, the claim that a ‘rigorous investigation ……… suggests Willingham was, in fact, innocent’ is a flat out lie. While the arson investigation may have been flawed – Barry Scheck of the Innocence Project called it junk science - the media has ignored the fact Stacy Willingham told family members that her ex-husband confessed to killing their three children. The media also ignored the fact that Tony Ayala, his neighbor, told police that contrary to Willingham’s claim of trying to rescue his children, he ran out of the burning house, backed his car out of a carport, ran back inside only to retrieve some boxes and did not tell anyone that the children were inside until the fire trucks and an ambulance arrived. Innocent, my ass!
As for all the arguments over the death penalty, I want to conclude with some words of wisdom from Dorina Lisson: “I have a long-time saying. ‘To those that oppose the death penalty, no explanation is necessary. To those that support the death penalty, no explanation is possible.’"
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