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The death penalty is really problematic

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Not long ago, headlines reverberated with the story of Stanley “Tookie” Williams’ death sentence and California Gov. Arnold Schwarzenegger’s denial of clemency and his statement about why clemency was denied. Williams was a founder of the Crips, a street gang with a notorious history of violence, and had been convicted of several murders.

Schwarzenegger’s rejection of Williams’ appeal for clemency, leading to Williams’ execution, is not surprising. No governor of California has granted clemency since 1967. The public attitude seems to be that if someone commits a crime, if it’s enough of a crime to deserve death, they die. The debate over capital punishment in America has been stuck in neutral for a long time. There are those who would not support capital punishment under any circumstances; and some, even in the courts, who would kill prisoners who might be innocent. That’s a pretty good range of opinion.

Williams was an unusual case. He was a former gang leader accused of multiple killings who wrote children’s books while on death row. Not many do that, but does it provide a reason to extend clemency? The issue was not about putting him on the street here, but simply commuting the death sentence and keeping Williams behind bars, not killing him.

Texts that talk about crime and punishment describe the various punishments and reflections on whether society places any value on the life of the accused. Accordingly, some are minor criminals who don’t even deserve incarceration; some are more serious criminals; some deserve life sentences, some death. The death sentence is society’s ultimate judgment on the absence of value to society in the life of a miscreant. Such people (and there have been a number of them) have no redeeming qualities, have not achieved any redemption.

Some people in the criminal justice system will be returned to society and can be rehabilitated. At least, that was the proposal some decades ago: that rehabilitated people would be returned to society ready to resume their place. But the worst were too dangerous to return to society, and society wants to extract what can only be described as revenge.

The issue around capital punishment revolves around ideas about redemption, rehabilitation and revenge. Other considerations, including compassion or a sense of the level of civilization one inhabits, have been off the table and I won’t address them here. The other major issue, the fact that a significant number of people who have been convicted of very serious crimes later turned out to be innocent, hasn’t been widely embraced in the argument thus far, although that could change.

I have a problem with the death penalty as a way of resolving the revenge issue. This culture is immersed in stories of revenge, one of the major themes of fiction in the culture since the time of Shakespeare, at least. Under the revenge theory, Williams was killed because he killed others. An eye for an eye, as per an ancient story about that. I’m not on board on this, but for other reasons. It has to do with the nature of death.

Go to any palliative care facility, and you will meet people who are innocent, who have spent their lives in service to their families and communities; in short, good people. And these people often suffer from life-ending conditions, including cancers or degenerative disease like diabetes, and many others. And they are often in pain and dying slow, miserable deaths.

The federal government at this time is waging a campaign against pain management for these innocent people, threatening and even prosecuting doctors who prescribe pain medications for terminal patients who, without that medication, will suffer to the end. The thinking seems to be that prescribing pain medication could be abused and, even in cases where intended abuse is largely unproven, federal authorities are persecuting doctors who do pain management. I’m talking about pain management for the innocent.

Meanwhile, the march to the execution chamber is on full press. The presumed guilty – society’s monsters – are subjected to painless, drug-induced death. The culture’s elders and unfortunate victims of disease are meanwhile condemned to painful, torturous death at the hands of some malady or another. They are the truly innocent and they do the most suffering. People put to death by the state miss this experience, but I would hope we can change things so innocent people miss it, too. At the present time, at least the absence of compassion is spread around equally, if you think that a virtue.

When you factor in the possibility that some of those who are condemned are likely innocent, and that society seems curiously unwilling, mostly, to prosecute people who aggressively seek convictions knowing that the rights of the accused have been abused, we have a pattern that leaves me unwilling to support the death penalty. Prosecutors who are dishonest, who do not present evidence they know might support the defense, are not only unethical, they are criminal and they do a great disservice to the justice system. The damage is so great that, like technicians who fudge scientific evidence, prosecutors who do this – a likely minority – should face civil and criminal liabilities.

Society should reconsider its thinking about this issue. Williams probably did enough things to raise his value to society from zero to some value deserving of clemency from death. Treated thusly, he might have spent the rest of his life behind bars (assuming he was guilty) and died a natural death behind prison walls. He, or someone else, might have been proven innocent, which is truly moot if one is dead when the proof arrives.

And Williams or any other who might gain the life skills might have done more things beneficial to society before dying. For the worst, living a sterile existence for decades without hope is indeed a very powerful punishment, even bordering on torture. It is more powerful than wheeling them to a chemical death, the kind that sounds too compassionate to our drug enforcement people of the moment for the benefit of people in the palliative care institutions. I don’t get the thinking here.

John C. Mohawk, Ph.D., columnist for Indian Country Today, is an associate professor of American studies and director of Indigenous studies at the State University of New York at Buffalo.