The Quality of Mercy…
Let me start by stating that I am opposed to the death penalty. I always have been. Understanding that justice is at times imperfect because it is administered by human beings is something of a given. All the more reason to eliminate the opportunity for the gravest error in the dispensation of justice. The action to execute someone for a crime is irreversible – it’s effect is as permanent as ones gender or racial assignation. The possibility of such an error is one I personally refuse to see as an acceptable by-product of a practice some might think of as acceptable, consequence be damned. The recent execution of Troy Davis in Georgia provides us as a society with an opportunity to revisit this de-basing and scandalous practice. If we retain it, I suggest ultimately that we put aside the charade of justice seeking and call the death penalty what it is – revenge. While we are at it why don’t we just make a blood sport of it and call it a day. Sounds ridiculous… well we might not be far off from it if you are to judge by the response from a crowd attending the Republican debates in California to a question asked of candidate Rick Perry about the death penalty in Texas. A similar crowd in South Carolina cried for blood in response to a question about emergency health services for a hypothetical uninsured young man laying in a coma, the kind of crowd that heckled a serving gay soldier who had a question for Rick Santorum about the now abolished “Don’t Ask Don’t Tell” policy at the latest debate in Florida. The rule of the mob witnessing a spectacle reminiscent of The Holy Roman Empire. Yeah, why don’t we just go ahead and make executions a blood sport. The state could charge an admission fee to spectators and make the event public theater. They can even do so in the name of closing their budget deficits. If you think I am being ridiculous, just remember it wasn’t all that long ago that public lynchings of black men and women in America were a spectator sport, a family outing that authorities turned a blind eye to. A sick picnic.
My position on the death penalty stem primarily from the view that, contrary to the much advertised effect of deterrence, the death penalty does not deters offenses which are classified as capital crimes. I freely acknowledge that a state has right to legally sanction certain behavior and exact a penalty for non compliance, but the idea that a penalty in and of itself deters crime is not borne out by the fact that our jails in America are filled to capacity. Unless you believe that every potential criminal walks around with a copy of the penal code in their back pocket when they are in the process of committing a crime, then the notion of deterrent effect is always up for debate. To the best of my knowledge the difference between a high felony and a misdemeanor or between a capital offense and a non capital offense is the farthest thing from a criminals mind. A career criminal who is no stranger to the justice system might be able to make those distinctions, but it is far from the universal pathology of a would be criminal. “If I rob the grocery store I’d be better off being caught with a knife rather than a gun…”, I hardly think a criminal is pondering the downsides of the enterprise at the moment in question. In my view criminal penalties are more likely to act effectively on the mind of a person who has little or no criminal disposition to begin with. Even in crimes of passion, the thought of consequence seldom ever enters the equation – actions are typically out of desperation in such cases.
In addition to my reservations about efficacy of the death penalty as a deterrent, the very real fact that in our society we operate a two tier system of justice, one in which matters of race and prejudice come into play, cannot be discounted. We should all be well aware by now of the disparity in prosecution and sentencing for drug related crimes, for instance, that owe themselves to racial and demographic distinctions between the user or dealer and vice versa. Harsher sentences for drug offenses committed by poor folks and persons of colour contrast noticeably from that for more well to do offenders and caucasians generally. The same applies to the criminal code that proscribes such behavior in the first place. The result is an imbalance between the who that commit drug related offenses and the who that eventual serve time for them and how much time they tend to serve. Legal representation in criminal trials affects very heavily the chances of conviction or acquittal. In essence the deeper your pockets are the greater the likelihood you avoid the heaviest of sanctions based on the level of representation you can afford. This state of affairs applies also, and maybe more so, in capital offenses. Add to that the political pressure to vigorously prosecute and secure a conviction that usually accompanies such cases along with a genuine desire on the part of law enforcement to seek justice for their fallen comrade. These factors can sometimes lead to short cuts in building the prosecution’s case against an offender, not to mention a greater likelihood that the defendant’s representation will face obstacles that may not occur in other kinds of criminal prosecutions. Unless the justice system is able to strike a just and fair balance in the disposition of prosecution, representation and sentencing, there will always be a significant risk that a given defendant will be found guilty for a crime they did not commit.
Capital offenses tend to be reserved for crimes the society considers particularly heinous or despicable. Examples of this would be the murder of a child and of police officers, add to that treason. Fair enough. It seems as a society though we are quite susceptible to or receptive to the tough talk of a politician who demands the ultimate sanction, while any other position is viewed as pathetically soft on crime. What I find interesting is that a person who would murder a police officer faces a capital prosecution in most death penalty states, however if the positions were reverse, the outcome would be completely different. Especially in a case where a cop maliciously kills a citizen, the best one can hope for is a manslaughter convict. The irony of this, one could argue, is that while such a crime represents the ultimate abuse of power, the greatest exhibition of criminality as it were, a wanton killing at the hand of one sworn to protect us, the likelihood of a conviction let alone the death penalty is as remote as a sunny moon. The list of citizens who had died at the hand of the police in the callously indifferent execution of their “duties” or outright murder is long, and even when convictions are obtained which is rare, the sentencing is mild to say the least. One not commensurate to the willful taking of a life. So much for the argument of deterrence. If one could get into the head of the Officer Mehserle who killed an unarmed, prone and pinned Oscar Grant on an BART subway platform in 2009, one would probably find that the penalty he should otherwise have faced was the farthest thing from his mind, a mind basking in the smug cloak of reassurance that is a by product of the uniform he wore on that day. Mehserle served just two years for this crime.
In Troy Davis’ case my sense is one of prosecutorial overzealousness due to the fact that the victim in question was a police officer. This is the kind of malpractice that happens routinely even when the crime isn’t murder. Witnesses are badgered and cajoled into false testimony either because they have a checkered past, simply don’t know their rights or have no access to a lawyer who can appraise them of those rights. Eye witness testimony is notoriously unreliable in the first instance, much less so when the killing of a police man is involved and the prosecution seeks a speedy resolution to the crime. If the penalty for murder was life imprisonment there would be no question about the ability to reverse a possible injustice as would be the case with Troy Davis in the event that he was able to prove his innocence. That option is not available to him personally any longer. It’s bad enough to take years away from a person who is innocent of a crime, but to legally murder him without him “having his day” in court diminishes all of us. It is ironic that Charles Manson is alive and gets to go before a parole board periodically seeking release on parole. He seems not only proud of his crime, but unrepentant to this day. The fact that the death penalty does not apply consistently across the country means this anomaly will continue to be a part of our justice system as long as we have a death penalty.
One last matter and that has to do with the purpose and execution of the death penalty. As I stated earlier, since I don’t believe it has the deterrent effect claimed by politicians, law enforcement and the justice system, I think we ought to own up to the fact that the death penalty is simply a matter of revenge. The loss of a loved one to a brutal murder is a very personal thing and hardly an abstraction, so I am willing to acknowledge in anyone who has so suffered, the existence of the sense of a need for vengeance. It seems however that the execution of a felon never brings real closure to the persons who suffer such a loss. One of the racially motivated murderers of James Byrd in Texas in 1998, was executed on the same day as Troy Davis. As revolting as that crime was, James Byrd’s son, Ross, asked that the life of his father’s murderer be spared as he was not seeking closure in the taking of another life. There have been similar such positions taken by bereaved family members with respect to the death penalty. Of course not every family views it the same way and that’s fair. Arguably though, if the affected families have the capacity to resist the impulse for “revenge”, surely we the indirectly affected can accede to their wishes or find it in ourselves to spare a life. Better yet it would not be an issue if the death penalty was done away with altogether.
On the matter of how executions are carried out, it has long been established that while the state has the right to take a life, it must strive to do so in a manner that does not rise to the level of cruel and unusual. So society transitioned away from hanging to the gas chamber and find ourselves today administering lethal injections. What a ridiculous spectacle it appears to me that we shield ourselves from our societal hypocrisy by virtue of merciful killing. Kill with as little pain as possible in furtherance of the concept of an eye for an eye. If that’s the case let’s cut the charade and return to firing squads. If you live by the gun then the method of execution should be at the hand of a gun, or a knife or poison, or what ever implement of death the convicted employed on their victim. How does the saying go – revenge is a dish best served cold? If that’s the case then we should be proud to embrace the old testament underpinning of our thirst for revenge and dispense with the charade. Otherwise we ought to seriously consider disposing of the death penalty all together. It will not bring Troy Davis or any other innocent or unjustly executed human being back, but it would signal a new beginning for us. One that truly distinguishes us from the shouting mobs asking for blood that we see more of in much of our social discourse today. Such an act of conscience would put us squarely in the company of most of our western brethren on this particular issue. But then that would make us as ordinary as everyone else and Americans can’t stand to be ordinary, can we?


















(Ajibike at a roadside market on trip between Akure and Lagos)














