Justice = Just Ice

Tomorrow night, September 23, Teresa Lewis is to be legally murdered by the state of Virginia, becoming the first women to be executed in the US in five years. Last week, Virginia Governor Bob McDonnell denied a clemency request and today, the Supreme Court denied a stay.

This is happening despite Lewis having an IQ of 72, despite having plead guilty (which usually is an opening for some compassion on the part of officialdom), despite evidence she was emotionally manipulated by "a dominant male co-defendant," and despite the fact that her two male co-defendants, who actually pulled the triggers, were sentenced to life in prison rather than death.

This comes just a month after Troy Davis failed to convince a skeptical judge that he had met the impossibly high standard of presenting "clear and convincing evidence" of his "actual innocence" of a 1991 murder and thus failed to get his conviction and subsequent death sentence overturned - a conviction based solely on the testimony of prosecution witnesses, most of who have since said they testified as they did as the result of police coercion. There was no physical evidence introduced and no murder weapon was ever found.

What I just called an "impossibly high" standard was set by the Supreme Court when it sent the case to District Court in Georgia for review in August 2009. While that particular decision was good news for Davis, I noted at the time that it also

points up a dreadful, shocking, moral hole at the core of how we now deal with capital crimes....

[F]or Davis's petition to succeed, he must be presenting evidence "that could not have been obtained at the time of trial (that) clearly establishes petitioner's innocence." That is the standard [Davis had to meet].

Consider what that means. First, if after the trial you produce new, previously-unavailable evidence that punches holes in the prosecutor's case and clearly establishes reasonable doubt - but which falls short of affirmatively proving innocence - our court system doesn't care. Even in the presence of reasonable doubt, we're going to kill you.

And what if it does "clearly establish petitioner's innocence?" If that evidence could have been obtained at time of trial, if maybe it was there but you just didn't know about it or if maybe you were the victim of incompetent representation, our court system doesn't care. Even if we know you're innocent, we're going to kill you.

Why? Because, our court system says, we don't want to be bothered dealing with this. Death penalty cases are an annoyance, an inconvenience. We're tired of people filing multiple petitions on a single case as people try to avoid being electrocuted or hanged or poisoned or shot. So we're going to set an extremely high, almost impossible, bar: You really get just one shot, the trial. After that, you want reconsideration? You not only have to produce previously unavailable evidence (not previously unintroduced, previously unavailable), but the burden of proof has shifted to you; it's no longer "innocent until proven guilty," it's now "guilty until proven innocent."

Because after all, you're not a person, you're not a life, you're a docket number. And what has justice got to do with legal philosophy?

A year before that, I wrote that

[t]here are lots of good reasons, both practical and ethical, to oppose the death penalty. Lots of unrefuted reasons. And yet still this badge of brutality, this symbol of savagery, stays with us, stays with us because ultimately, that's all the death penalty is about: not justice, not deterrence, but vengeance, bloody vengeance - except that we try to convince ourselves we are too civilized for that and so do our best to eliminate the actual blood. It's all neat, tidy, clean, antiseptic, proper, all according to procedure. We don't even have the honesty to call it vengeance. We call it "retribution."

And as a legal principle we pretend - wait, make that contend - that it's just and fair and proper to electrocute/hang/poison/shoot you even if we know you're innocent so long as all the procedural Is are dotted and Ts are crossed.

As I said on one of those earlier occasions, in Joni Mitchell's song "Sex Kills," she says she saw a license plate and "It said 'Just Ice'/Is justice just ice?/Governed by greed and lust?/Just the strong doing what they can/And the weak suffering what they must?"

The answer is yes.

Footnote: Something else I mentioned one of those earlier times was that Antonin Scalia, writing in dissent of the Court's decision to provide review for Troy Davis, said “This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” And he's right - SCOTUS has never held that it's unconstitutional to knowingly execute an innocent person provided certain procedural formalities have been observed. Ponder that for a while.

Another Footnote: Some good sources of info on the death penalty are the Death Penalty Information Center, the National Coalition to Abolish the Death Penalty, The Innocence Project, and the death penalty project of Amnesty International.