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Deciding Death

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Justice Department lawyers will soon decide whether to seek the death penalty in the case of alleged Marathon bomber Dzhokhar Tsarnaev. They will focus on the crime, and perhaps the youth of the criminal (the United States apparently hasn't executed a teenager in over 100 years) and not on the randomness or value of capital punishment, a penalty increasingly discarded by the states either through abolition (Maryland is the latest) or official indifference (California's death row population is over 700).

Whitey Bulger, the accused murderer of 19, will come to trial this week in Boston, but the federal government is not seeking the death penalty in his case. Then there is Gary Leon Ridgway, known as the Green River Killer, who admitted killing 49 women, most by strangulation, and is actually thought to have murdered many others. He is serving life terms in the Washington State Penitentiary.

In contrast, take Carlos De Luna, convicted of killing a Texas gas station attendant in 1983 under circumstances where, according to one analyst, all of the "essential players in the criminal justice system -- police, prosecutors, defense counsel and judges -- failed completely," preventing a trial that was "in any sense" fair and just. The man who De Luna insisted was the murderer eventually admitted he had in fact done the killing but De Luna had been executed in 1989.

There is no shortage of similar cases where for one reason or another -- from poverty to race, to the state or even county where the case was brought, to perjury, to the culture of a prosecutor's office, or the quality of legal defense or just plain dumb luck: one man dies, another spends his life in prison and a few winners in a ghastly lottery find themselves exonerated after serving years on death row. You'd like to think the system selects only the worst of the worst for capital prosecution, but that's clearly not the case.

The real question raised by the contemporary death penalty is not whether some convicted killers deserve it -- it's a common human response that they do -- but whether society does. We get almost nothing in the way of reward for lethally injecting away what they represent because while the criminal law can incarcerate the dangerous it is incapable of bringing us closer to avoiding the social and psychological malaise that produces most murders. There is so much killing the difference between execution and a life sentence cannot possibly make a dent in the numbers. Nor can what amounts to a statistically few capital trials foster a strong sense of public safety. The law looks backward here; a less violent world needs us to look forward.

The death penalty should be judged as an expensive and dysfunctional system, not by a few sensational cases that absorb obsessive media attention. Horrific crimes blind us to a radical inconsistency with fundamental notions of the rule of law and evenhanded justice -- as one would expect of a confluence of actions that are affected by serious social and ethnic disabilities, mental health, some government lawyers with political agendas, some private counsel with bills to pay, rightfully agitated and suffering victims, and earnest but amateur life or death jury decision makers dealing with disturbing violent events who nevertheless are supposed to produce something called truth.

The ultimate misery of the American death penalty isn't only that people die -- that happens every minute of every day -- but that we have bureaucratized the killing. We have turned it over to numerous shifting and distracted, under-resourced, inconsistently directed players who sometimes respond to uncertain incentives and professional practices that are questionable.

Just one bit of dysfunction among many: it takes a dozen or so years to execute many of the very few we do kill, a time when even vengeance has dulled. In short, we get the mess most Americans expect when they aren't distracted by justifiable anger. And so it's not surprising that we distance ourselves even from such minor satisfaction a supposed act of justice might bring -- in this video-focused world it is suggestive that executions are never held in public -- even while we continue to move toward a goal that is expensive, distracting, endless, arbitrary, capricious, racially divisive, and, most importantly, all but useless in serving any valuable public end.