It’s no secret to the people I know that I’m adamantly anti-death penalty. Every few months the US tries to execute another prisoner and Texas apparently is doing it again tonight [Note: This was written a few days ago and the situation seems to have changed.]. As is often the case, the prisoner has mental health issues. According to Rachel Maddow, Scott Panetti represented himself at the trial and believes an alter-ego is the guilty party.

Strangely, the US supreme court has already ruled in this case that the guy is not mentally fit to execute. The current Supreme Court wisdom is that an execution falls under the heading of cruel and unusual punishment if the condemned is unable to comprehend the punishment.

Death-PenaltyIf we’re going to have capital punishment, that’s a pretty low threshold. Even still, Governor Perry is convinced the guy is faking it and has been for many years. Under that surety,  the state set a date and didn’t see fit to tell defence counsel, who read it in th he paper, with barely enough time and almost none of the resources to file for an extension and judicial review.

Sad, as always, but not surprised.

It seems that, despite Governor Goodhair’s best efforts, the 5th Circuit Court of Appeals has issued a stay. Fingers are crossed, but this doesn’t ameliorate the fact that the US maintains the death penalty as a punishment for certain crimes. The company this practice puts us in (China, Iran, North Korea) is often used as an argument against its continuation. Surely the US can take the moral high ground on an issue like this? I don’t think that’s a useful argument because it doesn’t sway those who hold the eye-for-an-eye point of view. Life for a life. Others say the victim’s family should have some say in how a punishment is meted. My preference is that justice be blind, especially where it is not tempered with mercy. Justice in places that still exercise the death penalty isn’t even colour blind, much less properly blind. There are reams of paper on how inept, incompetent, and massively underfunded defence counsel can be in Texas DP cases. Groups that take up DP defences do it essentially pro bono. The fees they get from the state barely cover the hours it takes to visit the law library much less actually put in the time it takes to fairly defend a client.

That such firms are paid at all, I suppose, is a step in the right direction. My grandfather was called to the bar in Washington, D.C. in the 1930s. He once told me that if you were a lawyer, you were required to take pauper’s defence cases for no fee. I gather it was something like jury duty – lawyers were all on a rota to take these on. Alas, I never asked what types of cases he ended up with, given that he generally practiced tax law. (My father was called to the bar in California in the mid 60s and did not have this onus.)

Of course, the problem is now compounded, no pun intended, by the means by which we can actually execute prisoners. No legitimate US pharmaceutical company will supply the US with execution drugs fearing protest and firms abroad won’t do it either. From what I gather, Iran usually uses the rope – and cranes – and China uses bullets, the better to harvest organs. That sounds really creepy. I don’t have a source to hand, but I’m pretty sure I read about that from a legit journalistic source. (Oh, they’ve decided to stop this practice come the new year, according to NPR.

From top to bottom it’s a problem before we even get into the morality. The actual sausage is bad enough.

I’m not saying anything new when I say that killing people in order to say that killing people is wrong sends the wrong message about killing in general. I’m a big fan of the financial argument – our legal system, even taking into account the paltry sums paid to represent defendants too poor to afford counsel of their own, is expensive. A recent Kansas study of 34 cases between 2004 and 2011 found costs for DP cases were much higher than those of non-DP cases:

The numbers below are in thousands:
DP                       non-DP
Defence costs (1)                     395.7                   99
Trial court costs (1)                72.5                     21.5
Defence costs (2)                    130.5                   64.7
Trial court costs (2)                16.3                      7.4
Prison housing/year               49.4                     24.7
(1) indicates cases that go to trial; (2) indicates cases in which a guilty plea is entered that didn’t go to trial.

In terms of time, DP cases that go to trial took approximately 40 days, whereas cases where the death penalty was not sought too about 17 days on average.

I’m not sure if Kansas is representative, but the page behind that link has studies for multiple states as well as federal numbers. One study suggests that commuting all of California’s current death row sentences to life without parole would save the state USD 170 million per year. At a guess, that would pay the salaries of about 2500 public school teachers.

170 million would feed and house and counsel a lot of PTSD-stricken veterans and mentally ill. These groups wind up in the criminal justice system at alarming rates themselves because we haven’t figured out how to address their needs on the scale our wars and systems generate them. (It’s been nearly fifty years since Governor Ronald Reagan shut the state-run mental health facilities, so it might be time to stop blaming him for California’s homeless issues and start fixing them.)

The racial disparity in DP cases, and the US prison population in general, is also hard to ignore and is also a legacy of Reagan, but one we can still blame on his political strategies. The drug sentencing laws (that Obama recently rescinded) are one aspect. Many argue that if we’re going to have a death penalty, at least it be fair. I think the voting populations of many states are just as fine with having 40% African American prison populations (when blacks make up 12% of the general population). Our demagogues happily promote such figures as reflecting the criminal nature of the population rather than the criminal nature of the US criminal justice system.