Saturday, February 20, 2010

The Unsaid The Unheard By Anthony McCarthy

from olvlzl, May 20, 2006

Note: I just heard someone say it a few minutes ago, on the rebroadcast of Terry Gross’ interview with David Dow. In introducing the interview, it was felt necessary to point out that Dow opposes the death penalty. That’s something I wrote about a long time ago.

Some ideas are so common that they are only mentioned in passing as an obvious truth or they go without saying altogether. One of these conventionalized truths is that someone who opposes the death penalty is disqualified from the discussion of it. "Of course x is opposed to the death penalty," is often treated as the last that needs to be heard of x on the subject. It often goes unsaid but its assumption has fundamentally distorted the discussion of the imposition of capital punishment.

I believe that this attitude was consciously adopted by politicians and prosecuting attorneys because it effectively eliminates opponents of the death penalty from being heard. It is inconvenient for them to have this vehicle for career advancement always coming into question by people with a moral or ethical opposition to it. And, let's say it, in most places for politicians and prosecutors, an association with the death penalty is a career builder. Having opponents excluded from the discussion removes a potential factor that could lessen the value of their past work.

I believe that it is also adopted by the media for reasons of profit. Our media love the death penalty. It adds drama to their coverage of trials, it becomes a most easily reported story within itself. Even anticipation of the failure to impose it can provide an occasion for a show of dramatic outrage in the reliable clack of cable conservatives. And it is as much of a boon for the entertainment division of our media conglomerates as it is for their loss leader, the "news". I don't for a second believe that any of these people actually cares if someone is put to death or not. The issue is entirely one of utility for them. They hardly want to risk dissipating dramatic tension with rational discussion of the issue.

In the courts, themselves, the exclusion of death penalty opponents from juries is an obvious injustice. The population contains large numbers of people who oppose the death penalty. To exclude them from the jury pool on that basis is to stack the jury. It excludes a large segment of the population, perhaps even entire religions. The reason given, that death penalty opponents will not be impartial is exactly the reason used to exclude black people and others from juries. And in allowing the exclusion the allegedly impartial judicial system promotes the increased likelihood of a given outcome. It unquestionably guarantees a less than representative jury pool even in the guilt phase of the trial. A prosecutor doesn't have a right to a jury biased in favor of a given outcome.

Most death penalty opponents come to that position after careful consideration of it. To exclude opponents of the death penalty from juries could result unless careful, less thoughtful juries. There should have to be a compelling, overriding public interest stated with factual support to allow this kind of exclusion. But I don't believe that has ever been done. It is possible that the prosecution could benefit from more thoughtful juries as well as the defense.

Maybe it is that judges love the death penalty too. In the Rumpole stories it is said that judges used to order muffins in their club after imposing death. Who can doubt that some of our Supreme Court members would be quite capable of that. Scalia, apparently one of those who got the giggles in the discussion of whether condemned prisoners in Florida have equal rights to about-to-be-put-down pets, said that there is no right to a painless death at the hands of the state. Muffins at his club would be less depraved than that, certainly among the foulest things said by someone sitting on that bench in its history. I regret that no one could have asked him if that would include death by dismemberment. No doubt his answer would have allowed the hilarity to continue.

Update: One of the great unsaid things about the exercise we refer to as justice is the unexamined truth that it isn't only the accused who has a right to a fair trial, one which might end up in their acquittal. The People have a right to only have the guilty punished, they have the right that the wrong person NOT be found guilty on their behalf. Among other important aspects of that right of The People to not have a prosecution favored process, an innocent person in jail or executed means that the real guilty person goes free to commit more crimes or not. The People have absolutely no right for the innocent to be punished, they should not be encouraged to minimize the wrongness of that with the disgusting idea "Let God sort them out".

The media almost always, in this age of trumped up toughness on crime, ignores that the acquittal of the innocent is probably a superior right of The People, who just might find themselves wrongly accused of a crime some day. NOT that they find that nearly as suitable to their purposes as the typical entertainment that's in vogue these days.