Legal morality of the death penalty

Dear Readers, Interesting legal dramas are playing out in the United States concerning inmates under death watches.  Their denouement tests our moral legal compass.

The death penalty is controversial.  Biblically, God proclaims, “Vengeance is mine, and I will repay.”  The Bible is morally ambiguous on the right of a people to kill.  However, the same religious precepts that life is precious, applies equally to draconian opposition to abortion.  Meaning, how can one consistently be opposed to abortion in all circumstances, and not also oppose the death penalty?

From a corrective perspective, the death penalty has little deterrence effect.  Crazy people kill – they are not making a rational choice to stop short of murder because the State might execute them years down the road.  In fact, in a twisted way, they might celebrate the macabre celebration of a self-martyrdom celebrity.  Or, someone might be a rotten criminal and the line between broken kneecaps and a bullet to the head is ephemeral.

It is also very, very expensive and financially inefficient.  The investigation to tie up all loose ends – expensive.  The trial itself, typically a week or more – expensive.  Years and years of appeal, with little progress towards a conclusion, both in terms of lawyering and the extra cost of prison housing for a person on death row for decades.

State-sanctioned murder may be necessary to rid us of horrible monsters like Ted Bundy and John Wayne Gacy.  Forgiveness may be God’s grace, but some acts are beyond human forgiveness.  

Our legal system has flaws.  The criminal justice is comprised of human beings, using human constructs, with all the frailties and foibles this means.  Whether it is the racial and ethnic biases culminating in false convictions, the poisons of personal ambitions, or just plain incompetence, no guilty verdict is 100% “perfect,” we only ask for certainty “beyond a reasonable doubt.”

Death sentences can result from bastardized and seemingly innocent decisions.  Such is what happened to Richard Glossip.  He was convicted of killing Barry Van Treese (twice, first in 1998), whereas the actual killer was a co-defendant, Justin Sneed.  Glossip has been trying to have a hearing on claims of innocence since 2015, denied because Oklahoma only permits one trip up to its highest court.

Prosecutors in Oklahoma had offered Sneed a plea deal, sparing his life, if he agreed and testified against Glossip – this happens in courthouses across the United States every day.  He accepted the deal and fingered Glossip as the killer.  Sneed was crazy (he’s now dead).  At one point at trial, in response to questioning by the lead prosecutor, he told the jury he was prescribed lithium for a cold.  

Glossip’s attorneys lacked information about just how crazy is “crazy.”  In the prosecution team’s notes, Sneed had admitted to them in interviews that he was under the care of a prison psychiatrist for a psychiatric disorder.  This information was never passed on to the defense team – this is called a “Brady violation,” although there was no evidence this data point was intentionally withheld.

Oklahoma’s very conservative Attorney General, Gentner Drummond, has inserted himself into Glossip’s appeal … on the defense side.  He became convinced an injustice had occurred and an innocent man was staring at a state-initiated lethal injection.  He has called the possible execution a “travesty of justice.” Oral arguments with the United States Supreme Court suggest Glossip will be ordered to be retried, because of the lack of candor by the prosecutors.

Next door, in Texas another tragedy looms.  Robert Roberson has had a looming death sentence since 2002 for killing his 2-year-old daughter, in a case of “shaken baby syndrome.”  A conviction resting almost entirely on the intuitions of a scientific theory since discredited.  Roberson’s position is the baby died from severe pneumonia.

A bipartisan group of lawmakers has been unable to persuade the judicial system (or Governor Greg Abbott) to stay the execution.  The lead murder detective has even confessed a legal mistake has occurred, is convinced Roberson is innocent and has joined the battle to save Roberson’s life.  

Within hours of the lethal injection, this group adopted the novel tactic of subpoenaing Roberson to testify the following week before a sub-committee hearing to expose the injustice.  In effect, they manufactured a legislative “stay of execution,” a tragedy temporarily averted.

These are just two examples of the ugliness of state death sentences.  Again, some monsters need to be eradicated, there are also reasons to contemplate the morality of the death penalty.

Warner Robins attorney Jim Rockefeller is the former Chief Assistant District Attorney for Houston County, and a former Assistant State Attorney in Miami.  Owner of Rockefeller Law Center, Jim has been in private practice since 2000.  E-mail your comments or confidential legal questions to ajr@rockefellerlawcenter.com.