The Moral and Legal Failures of the Death Penalty

There were five executions this past week in the U. S.  One each in South Carolina, Missouri, Texas, Oklahoma, and Alabama.

Alan Eugene Miller, in Alabama, marked the 1600^th person executed in the U. S. since capital punishment resumed in 1976.

All of these men could be called poster children for the death penalty. One was found guilty of the heinous sexual assault and murder of his three-month-old son.

I will never be able to understand how someone could do that to a child, let alone their own child. And honestly, I don’t think I want to be able to understand it.

But The State needs to stop killing people.

Who Deserves to Live?

Am I arguing that any of these men didn’t deserve to die? No, I’m saying that we as a society shouldn’t get to decide that anyone “deserves to die.” Because once you are allowed to say that about one person, it’s deceptively easy to say that about any person. And once society gets to the point of being able to decide who’s worthy of life, I wonder what kind of path we’ve set ourselves on.

I freely admit I’m taking something of a black-and-white view of things here. But in my mind, that’s what it boils down to. Call it the slippery slope fallacy if you like.

If we get to decide that this person has done something so terrible and so evil that we should kill them, how easy is it to decide that this other person won’t ever do something useful, so we shouldn’t waste time, money, and resources on them?

Putting that argument aside, what about the costs associated with capital cases? According to the Death Penalty Information Center, the average capital case costs three to eight times a non-capital case. Why? Because of the mandatory reviews and appeals designed to make sure the state is killing the right person.

Those reviews aren’t perfect though. Since 1989, 142 people have been exonerated from Death Row in 26 states. Illinois almost killed twenty innocent people. Texas and Pennsylvania released twelve. Florida and Louisiana, eleven.

Some would say that’s proof that the system works.

They’re wrong.

If the system worked, those 142 people wouldn’t have been convicted of a crime they didn’t commit. Those 142 cases would have the right person behind bars.

We don’t often (ever?) talk about that aspect to exonerations, do we?

If a state exonerates someone and admits they had the wrong person in prison for a crime, then it follows that the actual guilty party has been running around free for six or 14 or twenty-one or 43 years. Death Row exonerations alone account for 2,432 years behind bars for innocent people. How many birthdays and wedding anniversaries and holidays and funerals did those men and women miss?

And how do we decide what crimes are worth killing someone over? What makes a murder more or less heinous than another?

Many states impose the death penalty where the victim is a law enforcement officer, the idea being that someone who would kill a cop wouldn’t have any qualms about killing anyone else, and so should be permanently removed from society. Oklahoma allows the death penalty for murder-for-hire cases or where the murder was “especially heinous, atrocious, or cruel.”

Who gets to decide “heinous?” It’s not defined in Oklahoma statutes. Curiously, one of the mandatory reviews under Oklahoma law requires that death sentences be reviewed to see if the sentence was imposed “under the influence of passion, prejudice, or any other arbitrary factor.”

Like degrees of cruelty? Hmm.

Fair and Just

But when we limit the death penalty as certain states do, aren’t we at that point assigning more value to certain lives than others?

And if that’s true, are we applying the maximum irrevocable penalty fairly and justly?

If we’re not, should we be applying it at all?

Emmanuel Littlejohn was executed on September 24^th for the 1992 murder of Kenneth Meers. Meers died during a robbery of his convenience store in Oklahoma City. Littlejohn and Glenn Bethany were both found guilty of the murder, but Littlejohn was the only one executed for it. There were conflicting statements from witnesses about which man actually killed Meers.

So why was Littlejohn executed? If two men are both found guilty of murder, shouldn’t their penalty be the same? That is, if they both committed the same crime and we said one of them should be killed, shouldn’t they both be killed? If not, then neither one should have been killed.

I’m not suggesting here that Littlejohn was innocent. I’m saying the death penalty wasn’t enforced fairly or justly. And it’s worth noting that the Oklahoma Parole and Pardon Board recommended that the governor commute Littlejohn’s sentence to life without parole, which is the same sentence Bethany received. Governor Stitt declined the commutation. He should note that accepting the OPPB’s recommendation is hardly acting unilaterally.

Junk Science

What happens when the science behind a conviction changes?

Robert Roberson was found guilty of the murder of his daughter Nikki based on the now-debunked theory of shaken baby syndrome. Fifty years ago, Dr. Norman Guthkelch was the first doctor to make the connection between shaking babies and brain injuries. Child welfare specialists, investigators, and prosecutors ran with the connection and started charging people with child abuse and homicide using the “triad” of injuries supposedly caused by Shaken Baby Syndrome.

When Nikki Roberson was brought to the Palestine, Texas ER in 2002, medical personnel immediately assumed, based on Nikki’s apparent injuries, that she was a victim of shaken baby syndrome, and told the responding detectives what they thought. Her father was arrested that night, hours after she died.

In the ensuing years since he created the SBS “diagnosis,” Dr. Guthkelch came to regret the term, saying in a 2015 interview that he’d been against calling it a syndrome in the first place. “To go on and say every time you see it, it’s a crime…it became an easy way to go into jail.”

To make things worse for Roberson, hospital personnel and police investigators noted his lack of emotional response to Nikki’s death. It turns out, Roberson was autistic, though he wasn’t diagnosed until after he was imprisoned. That alone helps explain his response to the situation.

So here we’ve got junk science being used to convict a man of a crime that ultimately almost certainly didn’t happen.

Brian Wharton, the Palestine cop who helped send Robert Roberson to Death Row, now believes Roberson is innocent, saying that he now thinks SBS is a fallacy.

Despite creating a legal avenue for convicted people in Texas to challenge convictions based on changes in forensic science, the state is fighting to keep Roberson’s conviction in place. He’s scheduled to be executed on October 17^th.

He would be the first person executed for a shaken baby syndrome death—a crime that he didn’t commit. 32 people in eighteen states have been exonerated for supposed shaken baby syndrome deaths. Roberson should be next, if Texas does the right thing.

If Roberson is exonerated, the state of Texas will pay Roberson about $1.5 million for his time spent behind bars.

If Texas kills an innocent man, he won’t get anything.

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