Jonah Goldberg, and my good faith on the death penalty

TreeHugger social media editor Chris Tackett—a friend from my Lawrence days—managed to bring my post about Jonah Goldberg and the death penalty to the attention of Goldberg himself. Goldberg tweeted a response:

And he's almost right! If you can reform death penalty jurisprudence so poor and black defendants get a good shake, or to solve any of the other huge problems that exist, it would be much more difficult to oppose the death penalty on fairness and justice grounds. The problem is: I don't think such reforms are likely—I wonder, really, if they're possible. It would take, among other things, a decision by legislatures to spend a lot more money on defense lawyers for poor defendants in capital cases—an act that would be politically tough in good times, never mind when states are tightening their belts. Abolition seems the best way to go to me.

Then again—addressing Goldberg's good faith question*—let me make myself plain: I'd still oppose the death penalty on moral grounds even if it were pristinely administered. But it's not pristinely administered, and short of abolition I would take reform. Right now, we're getting neither.

*An entirely reasonable question from one standpoint: I insulted Goldberg on Twitter recently. It was (I hope) uncharacteristically unkind and ungenerous of me. I have apologized, but to the extent I'm on his radar at all, I wouldn't blame him for holding a grudge.

Jonah Goldberg is certain about the death penalty

Jonah Goldberg doesn't think that the potential execution of innocent people is any reason to halt the death penalty, because, well, stuff happens:

If anything, I’m even more opposed to police accidentally shooting bystanders or shop clerks mistaken for robbers. Well we know that happens. And yet, I’m still in favor of cops carrying guns. I’m against — absolutely against — all sorts of accidental deaths that are the direct result of government messing something up. I’m against Air Traffic Controller errors that lead to deaths, but I’m still in favor of flying and air traffic controllers. It is a scandal, given how much we spend on the death penalty and all the endless appeals, for any mistake to go as far as it has. But why is it that the death penalty is the only government function that must be abolished after a single error?

The examples Goldberg cites are situations where split-second judgments are called for—and sometimes go awry. But the death penalty, of course, takes years and even decades to carry out. We've made a considered judgement to do it badly.

If you're poor and accused of capital murder, you're screwed. If you're black and accused of capital murder, you're screwed. If your lawyer falls asleep during the trial, you're screwed. And if evidence later emerges that you might well be innocent, well ... you may well be screwed.

This isn't a split-second judgment. This is a system riddled with structural problems guaranteed to produce unjust and unfair outcomes. It's a system that lawmakers have tried, over the years, to stack the deck in favor of those unjust and unfair outcomes.

Put it this way: If this was the EPA rulemaking process we were talking about here, Goldberg would be screaming bloody murder. Or, to borrow Goldberg's analogy: If police training seemed designed to produce the shootings of innocent bystanders on a regular basis, and if Congress had acted to make it easier to shoot innocent bystanders efficiently, we'd be alarmed. We'd be talking about changing that system, certainly.

It's not a single error that's the problem—though that error, if ever conclusively proven, will likely become a focal point of the death penalty debate. It's that the whole system is rickety. We shouldn't trust it with our lives.

"Bang 'em": How the death penalty reduces us to the level of criminals

Even if I favored the death penalty, I'd feel a little bit sick at the display that occurred in a Philadelphia court today:

"Walk back into this courtroom and say: 'Bang 'em, bang 'em.' "

Using the words uttered by convicted cop killer Eric DeShann Floyd against him and codefendant Levon T. Warner, a Philadelphia prosecutor today asked the jury to return two death sentences for the 2008 shooting of Police Sgt. Stephen Liczbinski.

In an impassioned 35-minute speech to the Common Pleas Court jury of seven men and five women, Assistant District Attorney Jude Conroy argued that Floyd and Warner forfeited their right to life on May 3, 2008 when they advanced their long criminal careers to include bank robbery and the killing of a pursuing police officer.

He then turned to the jury and told them to return the double death penalty "not out of vengeance" but because "it's what the law requires and it's what justice demands."

But Conroy is clearly asking the jury to act out of a sense of vengeance, and it's silly to pretend otherwise. For most people that'll be ok: Floyd and Warner are cop killers -- if anybody deserves the death penalty, it's these two guys.

Maybe I'm just a namby-pamby, though, but even in these circumstances I don't want the state being quite so gleeful in its pursuit of the death penalty. That's an awesome power given to prosecutors, juries and the courts, and if that power must be used, well, is it too much to ask that it be used soberly?

Instead, prosecutor Conroy used the exact same words of death that cop-killer Floyd used, in order persuade the jury to impose a death penalty. It's pretty damning proof that the death penalty reduces the justice system -- and the society it serves -- to the level of murderous criminals.