Gov. Mike DeWine has put a hold on executions. He’s bothered that the drug protocol used by the state to execute inmates causes severe pain and mimics waterboarding. DeWine is right to be bothered, but more than anything, he should be concerned for how flawed the system is.
The Death Penalty Information Center tells us that 163 Death Row inmates nationwide, including nine Ohioans, have been exonerated since 1973. Seven of those Ohioans were exonerated in the last 16 years. It’s impossible to tell how many innocent inmates have been executed.
Which leads to the next point: the judicial system places priority on procedure over outcome. So long as you have had a trial that meets the requirements of Due Process, the result doesn’t matter.
Justices Antonin Scalia and Clarence Thomas have told us the U.S. Constitution guarantees certain rights but not correct verdicts: “This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” The court has expressed “considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable.”
From a technical point of view, Scalia and Thomas might be correct, and that’s the problem. Where an inmate sought review of his case based on claims of innocence, the key issue to Justices Sandra J. O’Connor and Anthony M. Kennedy was “whether a fairly convicted and therefore legally guilty person is constitutionally entitled to yet another judicial proceeding in which to adjudicate his guilt anew, 10 years after conviction, notwithstanding his failure to demonstrate that constitutional error infected his trial.”
Though the facts presented by the inmate may not have been that strong, what’s troubling is that O’Connor and Kennedy referred to the nation’s “high degree of confidence in its criminal trials,” which is attributed, “in no small part because the Constitution offers unparalleled protections against convicting the innocent.”
But the system does convict the innocent.
And the poorer you are and less able to afford competent counsel, the greater the likelihood of error and wrongful conviction.
We have tried to insulate ourselves from the brutality of executions while satisfying our appetite for killing offenders, and so we have endeavored to make executions more civilized. The method of killing has evolved from hanging to firing squads to the electric chair to the gas chamber and now lethal injection. As Alex Kozinski, a former federal court appellate judge, puts it, “If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.”
Kozinski, a death penalty proponent, views lethal injection as sugar coating the
process. He advocates a return to firing squads. “Sure, firing squads can be
messy, but if we are willing to carry out executions, we should not shield
ourselves from the reality that we are shedding human blood. If we, as a
society, cannot stomach the splatter from an execution … then we shouldn’t be
carrying out executions at all.”
Which brings us to just how clinical the death system has become. Everyone who has a role in executing the offender—judges, prosecutors, governors—does so at a great distance. It is the difference between dropping bombs from 35,000 and shooting an enemy soldier in close-in combat. The bomber pilot knows on some intellectual level he has killed; the soldier has felt death up close.
No wonder Kozinski admitted, “I’d never want to witness an execution” and then questioned, “whether those of us who make life-and-death decisions on a regular basis should not be required to watch as the machinery of death grinds up a human being. I ponder what it says about me that I can, with cool precision, cast votes and write opinions that seal another human being’s fate but lack the courage to witness the consequences of my actions.”
[This post was published as an op-ed in The Columbus Dispatch on December 17, 2019.]
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Jack D’Aurora writes for Considerthisbyjd.com
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DEC
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