Legalese disease

Robyn Blumner, St. Petersburg Times editorial columnist ordinaire, shot a few darts at the death penalty in her latest column.

Blumner:

The death penalty costs a lot to implement, a side issue to be sure but in these tough fiscal times, a consideration. Florida, for instance, spends about $51 million a year on its death penalty system or about $24 million for each execution. While another broke state, California, spends an estimated $137 million. The high cost is largely driven by the layers of additional court proceedings intended to make sure that due process has been afforded the accused and a guilty person is being executed.

Cost is actually the best argument against the U.S. version of the death penalty.  I suppose Blumner felt that she would appear lacking in humanitarian principle if she pressed her point in those terms, however.  She is correct in identifying the source of the high cost.

Blumner:

I can hear the cries of "who cares what it costs?" or "let's make it cheaper by cutting out all those extra legal steps." But what should concern capital punishment proponents is that the system, even with these expensive safeguards, gets it wrong. Executing the innocent is a distinct possibility.

It isn't news that our legal system is imperfect.  But if it isn't right to put an innocent to death, then neither is it right to put an innocent in prison for life.  Imperfection is an argument against all legal penalties.

Blumner:

Nine men in 2009 who had been convicted and sentenced to death were exonerated of their crimes and freed. The total now stands at 139 since 1973. According to the Death Penalty Information Center, those nine men served a combined 121 years between the time they were sentenced to death and their exonerations, which means that all that extra due process and all the system's delays that pandering politicians always caterwaul about were necessary to avert a tragedy.

Note that Blumner has constructed an argument over the course of these three paragraphs.  First, states spend a great deal on the death penalty in order to safeguard the results.  Second, despite those safeguards, imperfections in the system persist.  She then offers statistics supposedly in support of her argument.

"There are three kinds of lies: lies, damned lies, and statistics."
--original authorship uncertain

Recent death sentence exonerations owe much to likewise recent advances in treatment of DNA evidence.  Rather than use those numbers as an argument against the death penalty generally, the advances point toward more reliable outcomes in future cases where the new techniques may be used.  In short, when we scrape a bit below the surface, Blumner's argument undercuts itself.

Back to Blumner:

And then there are the cases where a convict's innocence emerged too late. In a 2006 case concerning the death penalty law in Kansas, Supreme Court Justice Antonin Scalia wrote with his typical crowing arrogance that there has not been "a single case — not one — in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent's name would be shouted from the rooftops."

Scalia's misguided confidence is troubling considering the infamous Florida case of Frank Lee Smith whose death warrant was signed in 1989 for a rape and murder. It wasn't until after Smith died of cancer while awaiting execution that a DNA test in 2000 proved his innocence and implicated a convicted rapist and murderer.

Eh.

Are we supposed to believe that if a man sentenced to death dies of cancer while in prison it contradicts Scalia's claim that if a person had been wrongly executed then it would have been widely publicized?

Again, Blumner's argument undercuts itself:  She refers to the Smith case as "infamous"--which we can fairly take to mean widely publicized--and yet it is not the type of case to which Scalia refers.  Blumner's first example only strengthens Scalia's point.

Her second example, the case of a man convicted of murder and executed in Texas, suits her needs far better.  Ironically, however, it was science that convicted the man in that case and science that would have freed him.  Can we credit science without blaming science?

Blumner concludes by making much of a change in the American Law Institute's stance on the death penalty.  Other commentators fail to see much significance in that.

The price argument against the death penalty is fairly strong, but we should always note that most of these arguments against the death penalty (including all of Blumner's) are not arguments against punishing a person by putting them to death per se, but arguments against the system we use to reach that end.

That ought to leave a open window for death penalty reform rather than abolition.