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February 7, 2011

Is it finally time to just go back to firing squads for executions?

The question in the title of this post is inspired by this article that appeared this weekend in the New York Times.  The piece is headlined, "A Drug Used in Executions Becomes Very Hard to Get," and here are the passages inspiring my serious query:

The Texas Department of Criminal Justice is exploring its options, including what other states facing a similar shortage are doing, said Michelle Lyons, a department spokeswoman. But the drug alternatives are limited and they would most likely still leave Texas reliant on nations that oppose executions.

Oklahoma and Ohio both turned to pentobarbital, a barbiturate similar to sodium thiopental. Oklahoma used it in its three-drug cocktail to execute John David Duty in December. Ohio plans to use one huge dose in its executions — a method similar to the one veterinarians use to euthanize animals.

But pentobarbital is fraught with some of the same issues as sodium thiopental. The drug is available only from one company operating in the United States, Lundbeck Inc., based in Denmark, a country that also opposes the death penalty. Last month, Lundbeck asked Oklahoma and Ohio not to use the drug in executions....

There is no science-approved approach to carrying out lethal injection, said Deborah W. Denno, a law professor at Fordham University and an expert on the death penalty. Rather, most states came to their own consensus that the three-drug cocktail was the best method. The perception, she said, was that it was a more clinical method than others that the public found too gruesome and that had been phased out, like hanging or the gas chamber, which used chemicals similar to those the Nazis employed in death camps.

The electric chair fell out of favor after reported instances in which the eyes of inmates popped out and at least one inmate’s head burst into flames. Although the courts, up to now, have rejected arguments that lethal injection is inhumane, Ms. Denno said that some scientists questioned that verdict, and that changing the drugs used based on availability without knowing how they will work is tantamount to experimentation. “You can’t continue to do that with human beings and hope for the best,” she said.

There is, Ms. Denno said, one method that is quick, effective, affordable and does not depend on Europe: the firing squad. Since 1976, a firing squad has been used only three times, all in Utah. Although the state changed its death penalty law in 2004 to require lethal injection, it allowed Ronnie Lee Gardner — who was convicted of murder in 1985, when the firing squad was still used — to choose it. He was shot to death last June. “It’s the most humane procedure,” Ms. Denno said. “It’s only because of this Wild West notion that people are against it.”

But Texas lawmakers are consumed with a budget crisis, and State Representative Jerry Madden, Republican of Plano, said no one is talking about changing the state’s method of execution. Asked whether Texas should consider changing the law to reduce its reliance on European nations opposed to capital punishment, Gov. Rick Perry said he would trust state corrections officials to find a solution to the shortage.

February 7, 2011 at 09:59 AM | Permalink

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Even better: All executions should be carried out with a large-caliber gunshot to the back of the head of a kneeling prisoner. Only the Governor, personally, as the people's representative, should be authorized to pull the trigger. In Rick Perry's case, perhaps he could just pretend it's a coyote.

Posted by: Gritsforbreakfast | Feb 7, 2011 10:24:05 AM

I really do wonder why they don’t just use a firing squad. As far as I can tell, it is the most sure-fire (no pun intended) execution method yet devised, and far simpler than any of the various lethal injection protocols.

Posted by: Marc Shepherd | Feb 7, 2011 1:07:12 PM

@Gritsforbreakfast
Better yet, lets force governors, congressmen and the president to serve as prison guards. Makes as much sense.

Posted by: MikeinCT | Feb 7, 2011 1:19:03 PM

About 10 years ago, when Ohio still used the electric chair, an inmate requested that a hood not be placed over his head during the execution. His request was denied, on the grounds that it would make some of the peanut gallery uncomfortable.

I bring this up because it explains the real reason why we don't use firing squads--or, for that matter, hanging or electrocution, even though hanging and firing squads are likely the most humane and effective ways to carry out a death sentence. But all of these methods are uncomfortable to watch. It is far more palatable to watch an inmate "go to sleep" on a guerney than to watch five people shoot him in the chest (with the involuntary writhing that occurs afterwards, even though the inmate is already dead).

Posted by: Res ipsa | Feb 7, 2011 1:41:51 PM

Lethal injection came about because the country was attempting to do what pro-defense groups wanted it to do, i.e., make executions less painful and more humane.

If it turns out that that agenda was only a head fake, and was actually just the latest ploy to delay executions indefinitely (i.e., to impose a de facto moratorium without having to be honest enough to say so), society is not helpless.

As this article suggests, we can and will return to other methods of execution, including I suppose the firing squad (although that would not be my choice).

Here are the basics: 1. The majority, by a fat 2-1 margin, supports capital punishment. 2. Capital punishment is not a violation of the Eighth Amendment, see Gregg; Baze. 3. It will therefore continue for the indefinite future. 4. If method-of-execution challenges in the injection context turn out just to be abolitionism in disguise, they will be pushed aside, and the country will settle on a different method.

We were trying to be accomodating to liberal concerns. If that's not working, OK, we'll go back to what we had before. Not my choice, but I don't create the liberal agenda. Liberals do that.

Posted by: Bill Otis | Feb 7, 2011 1:55:33 PM

well bill i really don't have a thing against capital punishment some crimes just demand that punishment. BUT you have to be absolutely positive you have the RIGHT PERSON. If it turns out later you got the wrong one....then if there is any hint what soever that you lied, hid evidence or anything that might suggest otherwise...ANYONE involved in that decision from the police right up to the judge....AUTOMATICALLY get the SAME SENTENCE.....IMMEDIATELY.

Posted by: rodsmith | Feb 7, 2011 2:03:21 PM

rodsmith --

"i really don't have a thing against capital punishment some crimes just demand that punishment."

Nailed it.

There are hundreds of cases in which no sensate person could doubt the defendant's factual guilt, and not a single case in the last 50 years in which a court or any neutral body of any kind has concluded that the United States has executed a factually innocent person.

Posted by: Bill Otis | Feb 7, 2011 2:10:58 PM

The lethal-injection litigation has certainly gotten so ridiculous and whack-a-mole that states may as well change over to the firing squad.

By the way, does anyone here have any idea what's going on with the federal lethal-injection litigation? What the heck are they actually litigating in the wake of the Baze decision? I thought Baze had made it crystal clear that any procedure that was "substantially similar" to Kentucky's would pass constitutional muster. What's more, even the Baze dissenters opined that the absence of an eyelash test was all that had kept them from upholding Kentucky's lethal-injection procedure. Is there a mechanism by which the Justice Department/Bureau of Prisons can take an interlocutory appeal straight up to the US Supreme Court to put an end to this foolishness?

Posted by: alpino | Feb 7, 2011 3:21:36 PM

This is a vet certified tool, invented in Germany. You know they make good stuff.

The veterinarians felt free to file an amicus brief in Baeze opposing the current injections as not meeting their standards.

http://en.wikipedia.org/wiki/Captive_bolt_pistol

Posted by: Supremacy Claus | Feb 7, 2011 4:04:10 PM

alpino

I don't know where the federal lethal injection litigation is at but rest assured the US government will never have that many executions. They don't want to be compared to countries that carry it out often. They let the states carry it out because the blame goes to the states themselves.

Posted by: DaveP | Feb 7, 2011 4:50:20 PM

DaveP --

I believe the more important reason the feds will never have many executions compared to the states is that federal jurisdiction is much more limited.

Posted by: Bill Otis | Feb 7, 2011 5:39:44 PM

Bill

I wasn't comparing the 60 or whatever number it is on federal death row to the states. I just get the impression that the government is like some of the states who have it on the books and never carry it out. Also, as in my earlier post, the government would rather the states carry it out.

Posted by: DaveP | Feb 7, 2011 5:48:14 PM

@alpino
I don't know about Roane v Holder but the Feds are in the process of setting a date for a federal death row inmate Jeffrey Paul.

Posted by: MikeinCT | Feb 7, 2011 11:48:07 PM

MikeinCT - prison guards require special training and 24-7 staffing. Executions are rare events, and anybody can pull a trigger. Governors in Texas from Ann Richards on have all engaged in demagoguery about the death penalty, and IMO their personal involvement in the process would make it more likely they'd treat executions with the gravity they deserve instead of as a political football.

Posted by: Gritsforbreakfast | Feb 8, 2011 8:41:33 AM

Alternatively, we can reconsider the gas chamber.

Posted by: Kent Scheidegger | Feb 8, 2011 12:59:41 PM

Executions are overwhelmingly the end product of the judicial branch, and only to a minor extent the executive branch. A defendant is convicted and sentenced to death by a jury (or sometimes a judge acting on the jury's recommendation). After that, for several years (or sometimes many years), federal and state courts hear challenges of every sort to the conviction, sentence, and method of carrying out the sentence.

It is true that the Governor can grant clemency, but that almost comes, if at all, at the very end of the process. It is also true that Texas governors have supported the DP, but support is different from "demagogeury," and it no more than reflects the fact that the Texas electorate, of both parties, overwhelmingly supports the DP without any encouragement from whomever happens to be the governor.

It was Franklin Roosevelt who asked Congress to declare war against Japan -- a "grave event" massively more deadly than every execution ever done in Texas (or any other state). It was also certain that Roosevelt's War would kill thousands of innocents, including Japanese children -- which it did. And yet, to the best of my knowledge, no serious person suggested at the time, or since, that Roosevelt (or, by then, Truman) was morally required to be the guy to open the bomb bay doors when Fat Man made its way to Hiroshima.

Posted by: Bill Otis | Feb 8, 2011 3:28:58 PM

shame on you bill!

"There are hundreds of cases in which no sensate person could doubt the defendant's factual guilt, and not a single case in the last 50 years in which a court or any neutral body of any kind has concluded that the United States has executed a factually innocent person."

This is only becasue the state has bent over backward and sideways and upside down to avoid any rulings like this....that mess in texas is a perfect example.

sorry when the fed's own numbers say almost 10% of ALL criminal convictions a year are factually INNOCENT no way in hell we havent' killed innocent people

Posted by: rodsmith | Feb 8, 2011 5:49:20 PM

rodsmith --

"This is only becasue the state has bent over backward and sideways and upside down to avoid any rulings like this....that mess in texas is a perfect example."

Actually, it's the opposite of what you claim. In my home state of Virginia, for example, there was a loud and long-running abolitionist claim that Roger Keith Coleman, whom the state had executed, was innocent. Abolitionists also claimed that the state would never allow conclusive DNA testing.

That claim was an outright lie. Virginia, although never ordered to do so by a court, did post-execution DNA testing of exactly the kind the abolitionists demanded.

The tests proved that Coleman was guilty -- and thus also that the contrary abolitionist claim was, likewise, an outright lie. The whole thing was a decade-long abolitionist hoax.

As for Texas, it is quite true, thank goodness, that a rogue minicipal judge who had prejudged the issue was stopped from his circus by a higher court applying settled law. This at least saved abolitionism from the embarrassment of what was sure to be a reversal of Judge Fine that even the NYT and others of its ilk would have found impossible to cover up.

Posted by: Bill Otis | Feb 8, 2011 7:44:21 PM

Bill-
You are partly wrong. The hearing to clear Cameron Todd Willingham's name had nothing to do with Judge Fine's pre-trial order that the death penalty violated the Texas Constitution and therefore was off the table. What IS common between the two situations is that prosecutors went to great lengths to shut both proceedings down. One wonders, especially in the Willingham case when the hearing took place after Willingham was executed, what prosecutors were afraid of. Are they more interested in justice, or in protecting their conviction rates and political skins by aborting any chance of doing just what you claim as proof we've never executed an innocent person: having a neutral body determine that an innocent person was indeed executed.

Posted by: ALB | Feb 8, 2011 10:22:37 PM

Also Bill-
DNA can never absolutely "prove" that a person is guilty. It can only produce a statistical probability that the accused is the person responsible for the DNA based on how closely similar thirteen alleles on an evidentiary sample are to the same thirteen alleles on a known sample of the accused's DNA. But to say that it "proves" the accused's guilt, or that the accused "matches" the evidence based on DNA testing junk science. Conversely it CAN definitively EXCLUDE persons as possibly being the guilty party. Please don't propagate junk science here.

Posted by: ALB | Feb 8, 2011 10:31:54 PM

ALB --

1. Are you seriously suggesting that Coleman was innocent? If so, you are the last man left standing to do so. After the DNA evidence your side falsely claimed would never be produced was in fact produced, even the most vociferous of Coleman's shills had the good grace, not to mention the good sense, to shut up and hope the world would forget about their years-long hoax.

If you want to revive it, feel free. Abolitionists have been saying for years that case facts don't matter (indeed they INSIST, allegedly "on principle," that facts don't matter). If you are proposing to double down on this eye-popping claim -- a claim that in almost any other context would be regarded as nuts -- the floor is yours.

2. Kevin Fine's Willingham circus was aborted not by prosecutors but by a higher court, on the grounds, which you do not contest (indeed you omit to mention at all), that it was illegal. No one was "afraid" of a "neutral body;" there having been no such thing in Fine's courtroom. The notion that Fine had not prejudged the issue is as preposterous as the notion that Fine lacks an excellent batch of tattoos.

Fine's circus got far enough, however, so that even Willingham's own "experts" had to admit that they could not conclusively rule out arson. And as I'm sure you know, Willingham's trial lawyer has said his client was guilty, as has his wife. Do you have better personal knowledge of the case than they do?

This is not to mention Willingham's jury, at whom abolitonists routinely stick up their noses (a bunch of wahoos, dontcha know) on those rare occasions when they deign to mention it at all.

3. I thus repeat the fact you have not contradicted on even claimed to contradict: No court or any other neutral body has found that a factually innocent person has been executed in the United States for at least 50 years. That's F-I-F-T-Y.

Now one might think that 50 years wandering in desert would inspire, not a sense of outrage about how you're being conned by Those Really Bad Scheming Prosecutors, but a sense of modesty about the bona fides of your stance. Modesty, however, is a virtue unknown to abolitionism.

4. None of this is to mention the cases, most prominently McVeigh's, in which the crime was cruel and calculated beyond normal human understanding, and no sensate person questions the killer's guilt. It was so bad that Gallup found that even a majority of those normally opposed to capital punishment "on principle" supported it in that instance.

Of course the willingness to depart from one's orthodoxy depends on at least a degree of flexibility and nuanced thinking. So may I ask: Did you join the majority DP skeptics who supported capital punishment in McVeigh's case, or were you among the minority who remained ideolgically locked in, the facts be damned?

Posted by: Bill Otis | Feb 9, 2011 4:26:16 AM

Bill-
1) I am suggesting nothing re: Coleman. I am simply stating the scientific facts vis a vis what DNA does and does not "prove." Defendants CAN claim that DNA can clear their name, since DNA evidence can EXCLUDE someone as a contributor. Conversely, DNA testing cannot prove that someone absolutely was the source of the DNA evidence in question; it can only give statistical odds, even if those odds are great. Expert witnesses who testify to "matches" and that the defendant is "proven" guilty overstate their hand. And even if DNA evidence in a vacuum is the most reliable of forensic evidence, in reality "there may be problems in a particular case with how the DNA was collected, examined in the laboratory, or interpreted, such as when there are mixed samples, limited amounts of DNA, or biases due to the statistical interpretation of data from
partial profiles." But don't take my word for it: www.ncjrs.gov/pdffiles1/nij/grants/228091.pdf
See, e.g., pp. 47-49, 99-101, 113-19, 121-25.

But beyond that, the simple fact is that prosecutors avidly resist DNA testing even in cases where it is now possible. Why? Especially if an inmate is willing to pay for said testing him- or herself (at a lab that is no affiliated with the prosecution, of course. See the NAS report linked above re: cognitive bias of forensics testing) I applaud Franklin County Prosecutor Ron O'Brian for (reluctantly) agreeing to test evidence in a whole slew of cases to determine if the defendants are excluded, i.e. innocent. More prosecutors should follow his lead.

2) You continue to conflate Judge Fine's hearing on the constitutionality of the death penalty under the Texas Constitution (in which the defendant was John Edward Green, Jr., see http://www.chron.com/disp/story.mpl/metropolitan/6897252.html), with the name-clearing hearing in the court of inquiry, over which Judge Baird presided, for Willingham that was aborted by the TCCA after a few days and in which the prosecutors walked out of the proceedings, see

What were prosecutors afraid of? And Willingham's trial attorney saying he believed Willingham to be guilty is dispositive of nothing, because that useful tool of the prosecution utterly failed to investigate the case, let alone challenge the bogus forensics and psych testimony that were used to convict and condemn Willingham. Led Zeppelin posters = an infatuation with the occult and death such that Willingham was a psychopath, as the state's psych witness testified? Please.

3) Please explain to me how you expect that a "court or other neutral body" to ever do what you propose? What is the procedure by which one would go about obtaining such a ruling? What is the cause of action? Based on what statutory or constitutional grounds? After all, a fair number of the SCOTUS says there is no constitutional right to not be executed if you are innocent. And what state has a law allowing a posthumous lawsuit by an executed inmate to prove he was wrongfully executed? Who has standing to bring such cause of action? After all, the person who really has standing is hardly in a position to do so following his execution. And just as importantly, with the machinery of death continuing to lumber along, what attorneys other than clinics and public interest efforts like the Innocence Project have the time and independent resources to devote to proving a case in which there is no possible chance of real relief? Do you honestly think that a judge or judges on a court are going to sua sponte undertake such an investigation? This isn't the English system in which the court conducts its own investigation.

So your argument boils down to "absence of evidence is evidence of absence," but that's a giant red herring. I suspect you know that though, since you don't strike me as an unintelligent person. The most reliable indicator of the fact that at least 1 innocent person has been executed is the number of exonerations nationwide, even just over the last 10 years or so. Or do you honestly believe that only non-capital prisoners are wrongfully convicted? It is only by chance that guys like Terry Harrington were not prosecuted in states with the death penalty. If Harrington had been prosecuted in Ohio, it almost certainly would have been prosecuted as a capital case, and he would have been executed long ago. He was and is innocent. See http://sportsillustrated.cnn.com/2011/writers/the_bonus/01/25/terry.harrington/index.html

Please explain to me why you think wrongful convictions are confined to solely non-capital cases.

Posted by: ALB | Feb 9, 2011 9:10:40 AM

The cite for the Willingham name-clearing hearing, conducted by Judge Baird in Travis County (and having absolutely nothing to do with Judge Fine's proceedings in Harris County) is here: http://www.statesman.com/news/local/baird-to-hold-hearing-on-willingham-execution-940965.html

I mistakenly forgot to include it in my post above.

Posted by: ALB | Feb 9, 2011 9:28:58 AM

ALB --

1. You are correct that I have in some places conflated the Green and Willingham cases. Thank you for the correction.

2. Just passing it off with the shrug that you are "suggesting nothing re: Coleman" is inadequate. Coleman was THE poster boy for the "we're-executing-the-innocent" campaign for years. But the whole thing was a hoax, complete with indignant but false abolitionist claims that the state would never do DNA testing.

It is understandable that abolitionists would want to stick down the memory hole their self-righteous, though dishonest, insistence that Coleman was innocent. The reason they want to do this is to enable them more easily to repeat the same stunt with Willingham.

Will you admit that Coleman was guilty and that the furious abolitionist campaign to convince us otherwise was false?

3. The reason prosecutors refused to participate in Judge Baird's Willingham hearing was that THE HEARING WAS ILLEGAL. If they had participated, the other side would have had an estoppel argument against the state's motion to disband it. But the hearing was in fact in defiance of the law, as the higher court found. Again, you do not so much as contest the higher court's ruling.

Incidentally, why was Baird so eager to grab an inquest hearing that, under the statute, he was required to give to another judge? Answer: Because he had pre-judged the issue and was hand-in-glove with Willingham's attorneys. To avoid exactly that kind of prejudgment is the reason the statute requires assignment to A DIFFERENT judge.

4. I asked whether you have greater personal knowledge of Willingham's case than his trial lawyer and his wife. You take quite a blast at the trial lawyer, ignore the wife, and otherwise do not answer the question.

5. "Please explain to me how you expect that a 'court or other neutral body' to ever do what you propose?"

I scarcely need to explain it, since, by virtue of the Willingham hearing your side almost got (and would have obtained if Baird had been disciplined enough to hand the case off to a neutral judge instead of making it a show trial for his own strident abolitionist views), it's quite clear that you ALREADY KNOW how to get such a hearing.

But if you want some more suggestions, here are a few: A wrongful death suit; the appointment of a special commission by the governor; or an inquiry by the judiciary committee of your state legislature.

6. I will repeat my last two paragraphs, which you ignored, the better to adhere to abolitionist talking points and ignore those pesky counter-arguments that have persuaded an overwhelming majority of your fellow citizens. I'm hoping for an answer this time:

None of this is to mention the cases, most prominently McVeigh's, in which the crime was cruel and calculated beyond normal human understanding, and no sensate person questions the killer's guilt. It was so bad that Gallup found that even a majority of those normally opposed to capital punishment "on principle" supported it in that instance.

Of course the willingness to depart from one's orthodoxy depends on at least a degree of flexibility and nuanced thinking. So may I ask: Did you join the majority DP skeptics who supported capital punishment in McVeigh's case, or were you among the minority who remained ideolgically locked in, the facts be damned?

Posted by: Bill Otis | Feb 9, 2011 7:42:42 PM

Bill-
"My side"? What is "my side"? Does "my side" include Justice Pfieffer and former Attorney General Jim Petro? Why, pray tell, does "my side" oppose the death penalty? In the same way that conservatives are not monolithic (see, e.g., the nashing of teeth surrounding the CPAC conference now), those who oppose the d.p. do so for a variety of reasons. It is silly, therefore, to refer to "my side," and I reject that rhetorical technique.

To respond to your list:
1) Again, I am suggesting nothing about the Coleman case. Please do not impute to me arguments about a case I had nothing to do with. You can try to make this a game about icons or representative figures, but I'm going to decline to play. If Coleman was guilty, he was guilty. If Willingham was guilty, he was guilty. If not, then an innocent man was executed. End of story. I ask you, in turn: does that bother you? Would your vocal support for the death penalty change if there should be a proven case of an execution of an innocent man? Because it WILL happen, it's just a matter of time. (proving it, that is, not that it's just a matter of time before an innocent man is executed. I have no doubt that it has already happened on numerous instances).

2) The prosecutors' stunt in the Willingham hearing was just that - a stunt. They would have been estopped by participating after they had preserved their objection no more than a defendant is estopped from raising a Batson claim on appeal and habeas by participating in a trial after his or her attorney has raised the Batson objection during jury selection. Yes, AEDPA and the other procedural traps are draconian, but they're not THAT extreme. Yet. If, in fact, the Texas statute does allow for a hearing, even if in front of a different judge, then I look forward to what happens in that hearing, but you do the math: elected state judges + a politically unpopular issue almost never equals a fair hearing. And are you really going to try to tell me that the TCCA is a "fair and impartial" tribunal in death penalty cases??? Please.

3) I have no greater knowledge of the Willingham case other than what has been reported. What basis do you have to reject the experts' rejection of the forensic evidence that was used to convict him? What reason do you offer to justify the psych expert's testimony that Willingham was a psychopath with a love of the occult and of death based solely on his affinity for Led Zeppelin? Do you really endorse that? It is beyond question that the trial atty failed to investigate the case miserably. And the ex-wife is incredible, as she changed her story.

4) your suggestions for a "fair" hearing for posthumous exoneration are amusing, to put it mildly. You suggest:
- A wrongful death suit. Right. Followed immediately by assertion of myriad qualified immunity defenses, and almost certainly tossed on that basis alone, not to mention the very first defense will be "well, he was executed persuant to a valid conviction." It will go no further than 12(b)(6) motions to dismiss, pre-discovery. A non-starter, and you know that. And, to be more cynical, what attorney is going to bring that case? What possible damages are going to be obtained?

- the appointment of a special commission by the governor. Oh come now. Seriously? Are you REALLY going to try, with a straight face, to claim this is a reasonable suggestion? You surely know about Rick Perry's efforts to abort the forensics inquiry in Texas. What governor, in a state in which the death penalty is an option, is really going to appoint such a commission? But I thank you for the guffaw this morning at this preposterous idea.

-an inquiry by the judiciary committee of your state legislature. Boy, these suggestions start with the implausable and get further far-fetched from there. Again, I ask you: in which state in which the death penalty is an option will a committee (with few exceptions, controlled by Republicans) initiate such an inquiry? Why would they want to pull the curtain back on information that will surely be embarassing? Was there an inquiry initiated on behalf of Kevin Keith in Ohio? There's a pretty good chance he's innocent. No, he's not on the row anymore, because Gov. Strickland commuted his sentence. But now he has NO recourse to prove he's innocent. I dare say that no Republican in the Ohio legislature is going to championing Kevin Keith any time in the near future.

5) I have no "talking points" and I've found that the "overwhelming majority of my fellow citizens" have no idea what's being done in their names, just that the press reports things by leading with the shocking details of the crimes rather than the mitigation details. You are conflating the argument about "abolish the death penalty because an innocent man might be/has been executed" with "abolish the death penalty because it cannot be implemented fairly" or "we are executing people whose brains are not functioning normally."

As for McVeigh, I don't know the details of his mitigation case. Thus I can't provide an informed opinion on his case specifically, at least based on factual information. I will say that, based on experience and science, I now firmly believe that there is always a reason to explain why (or, more accurately, how) one kills another human. A properly developed and functioning human brain is hardwired to resist killing another human. For one to kill another, that means there is something wrong with the functioning of the killer's brain. I think it is no coincidence that McVeigh was former military, and a combat vet to boot as I recall. I'm certainly not slurring military veterans, and obviously the overwhelming majority do not commit homicide. But it would be denying reality to acknowledge the point of basic training: to train new recruits to do that which the brain does not do naturally, such as to follow orders unquestioningly even at the cost of self-preservation, or to kill another human without a moment's hesitation. The same inhibition of those executive functions in the brain are seen in those who have brain damage from head trauma, from growing up in an environment of poverty or violence or abuse or trauma. So to answer your question, as a general principle, no I don't support the d.p. for McVeigh. Not because his crime was not horrific, or because "the facts be damned." In fact, it's the facts that are paramount; a mind that would allow one to commit such an act is a damaged one. We are doing nothing more than disposing of "society's trash" by employing the death penalty, and frequently we as a society played a hand in creating that "trash."
A question for you: have you ever immersed yourself in the details of a capital case? Not the details of the crime, mind you; the details of the defendant's background? Have you waded around in the muck and mire and shit that is almost always found there? I am not asking this rhetorically, since it's the crux of the matter, and to opine on the "justness" of the death penalty without understanding the true story of most capital defendants is a hollow exercise.

Posted by: ALB | Feb 10, 2011 12:01:22 PM

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