This week, the Senate Judiciary Committee approved a bill to reinstitute the death penalty for certain federal crimes. As a lawyer with some experience in capital cases, I hope the bill "dies."
A primary reason to oppose the death penalty is the fear that innocent people will be executed. Proponents of capital punishment suggest that such "mistakes" are rare. But as the gubernatorial commutations in "high profile" cases such as those of Sacco-Vanzetti and the Haymarket defendants indicate, they do take place. Even more frequent is our experience with situations in which innocent people escaped execution only through fortuitous circumstances unrelated to the judicial system's ability to correct error.
One example comes from my experience with the Public Defender's Office in Detroit. There I was assigned the case of Charles Clark, convicted of murdering a store-owner in 1937 and serving a mandatory life sentence because Michigan had previously abolished the death penalty.
In the years following his conviction, Clark persisted in proclaiming his innocence. Despite the hardships of prison life, he rejected gubernatorial offers to commute his sentence, explaining that acceptance would be an implicit admission of guilt.
I was intrigued by the case. I read the trial transcript and concluded that there was a good possibility that Clark actually was innocent. An investigator was assigned to find the murdered store-owner's daughter who, as the only eyewitness, had played the critical role at the trial.
When we talked with her, it became clear she really had never been able to identify Clark as the killer or even place him at the scene. Her testimony, she explained, was the result of a detective's telling her at a lineup, "that's the man who shot your father," rather than her own recollection.
With the only evidence against him removed, a new trial was ordered, and soon thereafter Charles Clark left prison a free and officially innocent man. There is some comfort to be derived from the absence of the death penalty in Michigan, a fact that allowed Charles Clark to savor his ultimate vindication.
But this case demonstrates that our criminal justice system is fallible. It is designed, operated and maintained by imperfect human beings. Although we cannot allow the fear of error to paralyze us, we should avoid acts that make error irredeemable.
The issues associated with capital punishment go beyond the question of clear error. Our judicial code does more than establish innocence or guilt -- it also seeks to evaluate relative levels of culpability. Thus we distinguish between murder in the first and second degrees. And in the bill now before the Senate, we catalog conditions that mitigate against imposing the death sentence.
These gradations of guilt attempt to recognize and respond to the diversity of human motives and the difficulty of determining individual intent. The inherently imprecise nature of this determination ensures that errors will be made in assessing the degree of guilt and imposing the appropriate punishment.
The Judiciary Committee's acceptance of proposals that allow the members of the jury to disagree about what specific aggravating factors justify the death penalty, as long as they agree that some aggravating factors were present, simply highlights this problem.
One can argue about the death penalty's deterrent effect, its morality or the fairness of its application. But one cannot argue against its ability to take the life of an innocent person or that it can be applied inappropriately in cases in which some degree of guilt is firmly established.
It is simply unwise and unconscionable to deprive ourselves of the ability to correct errors. The fatal flaw of the death penalty is that is denies us that opportunity.