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Conservatives should oppose death penalty

Terry Garlock's picture

Now that Troy Anthony Davis is executed and debates over his case are moot, perhaps my fellow conservatives will listen to reasons we should oppose the death penalty.

As conservatives we strongly believe each individual should bear the consequences of their actions, including severe punishment for crimes. For decades I supported the death penalty and came to my reversal slowly, and reluctantly, so I hope you will hear me out.

While I have doubts about deterrence, I do believe the death penalty serves a useful purpose of just retribution for egregious crimes. Victims deserve that retribution, and the death penalty would rid us of criminals who have earned the ultimate punishment were it not for eternal delays.

I’ll go even further. As a conservative meany, I even like the radical idea that people who commit heinous murder deserve to be put to death the very same way they killed their victims. I might even volunteer to pull the trigger, swing the blade, throw the switch or plunge the needle to carry out the sentence if only we knew guilt with absolute certainty.

But we don’t.

Like many of you, in my youth I naively believed our judicial system searched for and found the truth. I used to believe if you were innocent, you had nothing to worry about, but even though I’m not an attorney, my work has brought me in close contact with the criminal and civil judicial system and I now know better.

Our judicial system is set up as an adversarial contest with each side pulling every trick they can get away with to win. If you are charged with a capital crime, you would be very fortunate to afford the best defense counsel in her thousand dollar shoes, million dollar smile and legions of associates researching every possible move on your behalf. If you have a public defender you may be screwed, never mind whether you are innocent or guilty.

We don’t get justice from our system, we get procedure and a fighting chance to win. If the truth is found along the way that’s nice but hardly necessary.

If you are like me, you are usually cheerleading prosecutors to nail dirtbag criminals to get them off the streets, especially since for every conviction a hundred others get away with their crimes.

And conviction is precisely what drives prosecution, not a noble quest to uncover the truth. A prosecutor doesn’t want to hear new snippets of evidence that suggest a defendant might not be guilty, he wants to know whether he can sell conviction to the jury, can he put a “win” on the scoreboard? A high win ratio may be a prosecutor’s ticket to higher office. Besides, protests of innocence are every defendant’s daily refrain, noise that prosecutors soon learn to ignore.

Wealthy defendants can hire pricey consultants to advise on jury selection to swing viewpoints to their side, design a defense style to appeal to certain jurors and transform the image of a thug defendant with a haircut, a well-cut suit and training on courtroom decorum. Image is everything to persuade the jury.

The prosecutor might prefer to push the jury’s emotional buttons with grisly photos of the victim rather than argue the finer points of forensic evidence; tedious facts can get so boring and emotions are a big part of juror decisions.

I remember a civil case long ago in which our decision not to sue was predicated on the highly technical nature of our facts, the low education level of the jury pool in that remote jurisdiction, and we would have been the smart-alecks in suits from the big city going after a local defendant, a losing proposition.

The truth is sometimes tedious, not always enough to overcome appealing appearances. In a criminal case, incriminating technical details are nice but a prosecutor wants hot-button issues that capture juror feelings.

In the battle for favor with the jury, attorneys on both sides might make straight-faced arguments they cannot possibly believe, and if they somehow had to switch roles I’m sure they could pick up the other side’s arguments without missing a lick because their role is to advocate for their client, whoever that client may be.

If all this sounds too much like selling soap instead of a dispassionate search for truth, you’re getting the point.

In fact, while law professors might explain a dozen reasons I am wrong, in some ways our system works against finding the truth.

Arresting officers are required to advise suspects to keep silent. Confessions are kept from the jury if someone did not follow the rules to have attorneys help the defendant devise a cover story before spilling the beans. In some circumstances if a defendant blurts out the truth a judge might stop proceedings to direct counsel to advise his client not to do something so drastic.

If you are thinking those are some of the reasons we should even more swiftly carry out a death penalty, please consider the same type of truth-twisting games are played on the prosecution side.

They can induce testimony favorable to “the people” by offering leniency to suspects or convicts. They can pressure a defendant to flip on a superior with implied threats to prosecute others the defendant cares about or fears. Sometimes prosecutors fudge on disclosing to the defense exculpatory facts or witnesses, as required by the Brady rule, named after a 1963 Supreme Court case.

And while we all know the phrase “presumed innocent,” the reality is most citizens – like jurors – presume just the opposite, quietly thinking, “Why would the police arrest and the prosecutor bring a case against an innocent man?”

The battle in a courtroom is not really over the truth, it is a struggle of each side trying their best to win, and there is no assurance that truth will prevail. Maybe a more sober and honest prelude to a trial would be, “Let the games begin!”

Don’t get me wrong, I think our system gets it mostly right, but the word “mostly” and “death penalty” should never be in close proximity.

What America introduced to the world a couple hundred years ago was the sanctity of the individual and mistrust of the state. As conservatives we are vigilant for government mistreatment of individuals, and we should not endorse the state killing a convict unless a conviction is airtight, absolutely certain. How can we know that from a competitive contest in which the skill of your attorney depends on the depth of your pocket?

Even though far too many cretins get away with their crimes, a few defendants are wrongly convicted. Scores of convicts have been exonerated in recent years when proven not guilty by DNA or other new evidence, some of them from death row. Surely there are more.

If you observed that on death row most can fairly be called human debris deserving the ultimate punishment that awaits them, I would agree with you, but there’s that troubling word “most” again and I suspect there may be a few who actually were wrongly convicted.

Since we cannot know with certainty, we should let all convicts rot in prison and take no chance of giving the state our approval to kill just one innocent person.

That doesn’t mean I think Troy Anthony Davis was innocent. I assume he was guilty, but I don’t know with certainty and neither does the state that killed him.

[Terry Garlock lives in Peachtree City and occasionally contributes a column to The Citizen. His email is terry@garlock1.com.]

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