In a recent op-ed, Jack Fuller, for­mer edi­tor and pub­lish­er of the Chicago Tribune, called for an end to cap­i­tal pun­ish­ment. Citing a series of mis­takes by eye­wit­ness­es, police and foren­sic experts, he stat­ed that the crim­i­nal jus­tice sys­tem is too deeply flawed to entrust with car­ry­ing out exe­cu­tions. Pointing to the like­ly inno­cence of Carlos DeLuna, a Texas man who was exe­cut­ed in 1989, Fuller con­clud­ed that the death penal­ty should be abol­ished because ​“no gov­er­ment is good enough to entrust with the absolute pow­er that cap­i­tal pun­ish­ment entails.” His arti­cle was enti­tled NOT IN THE NAME OF JUSTICE:

Death-penal­ty oppo­nents advance var­i­ous argu­ments for abo­li­tion, but the most pow­er­ful of them all finds embod­i­ment in the per­son of Carlos De Luna.

Texas exe­cut­ed De Luna in 1989 for the mur­der of Wanda Lopez in a gas sta­tion knife attack. Something went ter­ri­bly wrong at the exe­cu­tion by lethal injec­tion. De Luna did not slip quick­ly into uncon­scious­ness as he was sup­posed to. Instead, he reared up on the gur­ney against the restraints and seemed to try to say some­thing.

Perhaps it was to cry out in pain as the killing med­ica­tions began to course into his veins before the anes­thet­ic took hold. The pos­si­bil­i­ty that lethal injec­tion sub­jects its recip­i­ents to excru­ci­at­ing phys­i­cal agony has become the focus of a great deal of atten­tion late­ly among death-penalty opponents.

Or worse, De Luna may have been try­ing to protest his inno­cence on the very precipice of death. A Tribune inves­ti­ga­tion has exhumed com­pelling rea­sons to think this would have been the truth.

That is the rea­son we have to stop putting peo­ple to death. The crim­i­nal jus­tice sys­tem is too deeply flawed to entrust with the deci­sion to kill a par­tic­u­lar per­son in order to make a point (for that is what deter­rence and ret­ri­bu­tion come down to).

Odd then that peo­ple who believe in the free mar­ket because gov­ern­ment can­not make the right deci­sion about how to allo­cate resources don’t all ral­ly to the abo­li­tion­ist cause.

Strange that oppo­nents of social­ized med­i­cine can’t see that the gov­ern­ment they don’t trust to save their lives ought­n’t be trust­ed to take De Luna’s.

Peculiar that the Republicans who want­ed to pri­va­tize Social Security to save it from bureau­crats and politi­cians are eager to let gov­ern­ment agents in the form of police, pros­e­cu­tors, judges and juries decide in the face of pro­found fac­tu­al and moral ambi­gu­i­ty that this one should die while that one should live.

It isn’t that the peo­ple who work in the crim­i­nal jus­tice sys­tem are bad folks. They are often the very best among us. Police offi­cers will­ing to put their lives on the line to save ours. Prosecutors who face down some of the scari­est indi­vid­u­als on the plan­et. Judges who do their jobs with almost super­nat­ur­al self-dis­ci­pline. Jurors who are called out of peace­ful lives and pre­sent­ed with ago­niz­ing choic­es, the mem­o­ry of which will haunt them for­ev­er.

It is sim­ply that they are all human and the pow­er of sin­gling out some­one to kill is more than they are built to han­dle.

Humans have remark­able brains, capa­ble of see­ing pat­terns in the midst of com­plex­i­ty, even chaos. This has served us and our prim­i­tive ances­tors well. Dithering about whether that long coiled thing obscured by leaves is a snake or a vine is cer­tain­ly not a good sur­vival strat­e­gy.

But this abil­i­ty to see fig­ures in the clouds can also lead us into error. Eyewitness accounts have proven noto­ri­ous­ly imper­fect. Circumstantial evi­dence can weave a noose around a defen­dan­t’s neck, when the dis­cov­ery of one more fact would turn it into a halo.

Over the past sev­er­al years, the Tribune has time and again demon­strat­ed the way in which ver­dicts have been proven wrong, even when the defen­dant con­fess­es.

 — Forensic experts’ the­o­ries turn out to be 180 degrees wrong.

 — Police iden­ti­fi­ca­tion pro­ce­dures give cues to uncer­tain eye­wit­ness­es about who the police believe com­mit­ted the crime.

 — People are some­times tor­tured or tricked into telling police they did some­thing that they did not do.

The refine­ment of DNA test­ing has giv­en chill­ing proof that any num­ber of peo­ple on Death Row should­n’t have been there.

If fig­ur­ing out what a defen­dant did bedev­ils the crim­i­nal jus­tice sys­tem, decid­ing how to assess its moral qual­i­ty against oth­er sim­i­lar behav­ior in order to know whether to exact the ulti­mate pun­ish­ment is many times hard­er.

John Doe is a 20-year-old man with the mind of a 12-year-old. When he kills in an impul­sive rage, is he more or less deserv­ing of exe­cu­tion than Rhonda Roe who has a 120 IQ but was beat­en and sex­u­al­ly abused by her father from the age of 8 until 15, when she ran away from home and became a pros­ti­tute?

We can find ways to dis­cuss such ques­tions mean­ing­ful­ly. The law over the cen­turies has pro­vid­ed as good a frame­work for it as we are like­ly to find. But still the issues are the­o­log­i­cal in their pro­found dif­fi­cul­ty, espe­cial­ly when the stakes are life or death.

The rea­son to abol­ish cap­i­tal pun­ish­ment is not that it is immoral for a soci­ety to choose death over life. Every time we decide to do a major con­struc­tion project or launch a space-shut­tle pro­gram or send in troops (or allow peo­ple to dri­ve 70 m.p.h.) we know fair­ly pre­cise­ly how many peo­ple are like­ly to die as a result.

Nor is the rea­son that killing some­one inflicts pain. That is almost beside the point, not least because we have the abil­i­ty to anes­thetize effec­tive­ly if we have the wit to use it.

The real rea­son is that no gov­ern­ment is good enough to entrust with the absolute pow­er that cap­i­tal pun­ish­ment entails.

(Chicago Tribune, July 3, 2006). See New Voices and Innocence.

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