Gary Haugen
Oregon's governor this week halted the execution of Gary Haugen and other death row inmates.
Oregon death penalty halt is only a small gain

There is an eerie sense of ceremony about the death penalty in the United States.

A jury is selected, often over the course of months and one of a juror’s key attributes is a willingness to apply the death penalty. The trial will be long. Hours will be spent reviewing resumes to anoint expert witnesses. The prosecutor will probably be fiery and passionate - among the best in the district attorney’s office.

After all, death penalty cases are a big investment. The defense lawyer, however, is probably court appointed, less experienced and overworked. The defendant’s life will be picked over and yelled about.  The defendant will watch silently.    

Should the accused plead guilty, he (overwhelmingly those who face the death penalty are men) can avoid some of this theatre. But there is still a sentencing phase, where those ready-to-execute jurors hear why the defendant is the worst of the worst and should die. There are mitigating expert witnesses for the defense, who might be ineffectively used. The sentencing phase alone can last weeks.

Before the deliberation, the judge will read opaque instructions the jurors might not understand. The jurors will say they understand. In closing arguments, the prosecutor might remind jurors they’re not actually killing anyone; a whole obstacle course of appeals awaits the defense. Of course, those appeals are designed to tightly limitthe amount of new evidence that can be introduced – even if that evidence suggests innocence. In a 2009 dissenting opinion, Supreme Court Justice Antonin Scalia wrote that courts can’t save someone from the death penalty on the basis of innocence alone.  

So it is good news that Oregon Gov. John Kitzhaber said this week he would stop all executions until the end of his term in 2015. 

“The death penalty as practiced in Oregon is neither fair nor just; and it is not swift or certain,” Kitzhaber wrote in a press release Tuesday.

“It is not applied equally to all. It is a perversion of justice that the single best indicator of who will and will not be executed has nothing to do with the circumstances of a crime or the findings of a jury. The only factor that determines whether someone sentenced to death in Oregon is actually executed is that they volunteer. The hard truth is that in the 27 years since Oregonians reinstated the death penalty, it has only been carried out on two volunteers who waived their rights to appeal.”

This moral stand by Kitzhaber - who allowed two executions in his previous term – is positive, but it is hardly enough. There must be a move beyond the magical thinking that lets supporters believe the death penalty is a just, viable solution within an intrinsically flawed legal system. 

Kitzhaber is right to say the death penalty is not equitably applied. Disproportionately, death-penalty defendants are black. Victims in these cases are almost always white. Most of the accused are poor, which is why they’re often represented by low-quality, court-appointed counsel.

Innocent people certainly have been executed. Cameron Todd Willigham was executed in Texas in 2004, his conviction relied almost entirely on junk science. Earlier this year, activists rallied around Troy Davis, whose guilt was culled from questionable evidence. The Supreme Court of the United States allowed his execution. 

Like many rites, the death penalty has its supporters. They say it can save money, keep prisons and communities safer and heal victims’ families. None of these things are proved to be true. These ideas are also based on the flawed assumption that the legal system is designed to be fair and just.

The truth is, the death penalty is nothing more than a magical ceremony that is steadily losing its ability to provide comfort or meaning to anyone.  

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About author

Leslie's picture

Leslie Wilber is a journalist who has covered police misconduct, courts, high school sports and other disasterous things. She lives in Denver and is an editor at The Precarious.

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