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Barbarism Made Legal

Michael J. Ring

When a state chooses to carry out the death penalty, one of two horrible outcomes is assured. Either the life of an innocent person is taken by the state, or the life of a guilty person is taken by the state.

Last week the state of Ohio, for the first time in 36 years, performed the latter act. And this month, we have learned how perilously close the state of Illinois came to doing the former.

Anthony Porter was freed from an Illinois penitentiary on February 5 after another person confessed to the 1982 murders for which Porter was convicted. Last September, Porter came within two days of execution. His sentence was delayed because of worries over Porter's mental fitness: with an IQ of 51, Porter would have been the person of lowest intelligence executed since the death penalty was reinstated in 1976. In this time of reprieve, evidence was produced clearing the man.

Porter's case is by no means an exception. Researchers have found 23 cases in this nation since 1900 in which the person executed was innocent of the crimes of which he was convicted. In the past 23 years, 76 people have been freed from death row after exonerating evidence was produced. In fact, the Illinois Supreme Court last Friday overturned yet another capital murder conviction, this time because of unreliable prosecution testimony.

Who knows how many of the 519 people executed since 1976 may have been innocent as well? Recent court decisions speeding executions and limiting habeas corpus only increase the risk that an innocent person will be killed by society's vengeance. Virginia outrageously limits the period after a capital conviction during which a defendant can introduce new evidence to 21 days. After three weeks, no new exonerating evidence may be introduced, and after that point, as a former Virginia Attorney General argued, "Evidence of innocence is irrelevant." Yet a bill to repeal this dangerous and heinous provision can never make it out of the Virginia legislature. It seems the execution of an innocent person is only a matter of time.

Innocence was not an issue in Ohio's execution of Wilford Berry: He had confessed to the murder of a Cleveland baker and even expressed his desire to be executed. But his execution was by no means justified by either of these factors. Indeed, the killing of Berry makes the state of Ohio guilty of the same crime for which it sought to punish Berry.

Some would say that by killing Berry, the state of Ohio set the ultimate example that murder will not be tolerated. But one need only scratch the surface of an overwhelming body of factual evidence to show the death penalty is far from an effective deterrent. Violent crime rates in Canada and Europe, where the death penalty has been abolished, are drastically lower than they are here. The United Kingdom has a murder rate one-sixth of this nation's. In the United States, the lowest per capita murder rates are found within the Northeast and Upper Midwest, where most of the 12 states which do not have a death penalty are found. The highest murder rates are in the South, where four out of five post-Furman executions have occurred. (Furman V. Georgia was the case in 1972 which suspended the use of the death penalty nationwide for four years.) The violence of the death penalty has not stopped the violence of murder, because the two acts in fact are one and the same.

And let us not forget either that the death penalty is indiscriminately applied across race and class. Minorities and the poor, groups without access to excellent legal representation, are the victims of this barbaric punishment. Rich whites who can afford the best attorneys can escape the death penalty.

A death penalty process which guarantees fairness across socio-economic strata and assures that no innocent people will be executed will never be created. But suppose for a moment that it were. Would society then be justified in demanding this punishment? I shout absolutely not, for capital punishment is morally rotten to the core.

The death penalty is a vestige of barbarism in our criminal code, truly indicative of "an eye for an eye" mentality. Civilized nations have long rejected this penal system. We do not cut off the hand of a person who steals; why do we kill those who kill?

The death penalty is a violation of the most basic tenet of human rights: Each and every person has an inalienable right to life. This is a right so valuable and precious it may never be abridged, even by the most horrific of cases. International organizations have long recognized the affront and challenge to human rights presented by the death penalty, and each year the list of countries ending this cruel practice grows longer.

Across Eastern Europe, nations such as Russia, Poland, Ukraine, Estonia, and Azerbaijan have recently abolished or are seriously debating abolishing the death penalty. In our use of the death penalty we frequently run afoul of the human rights treaties and conventions we seek to enforce upon other nations. The United States stands with such rogue states as China, Iraq, and Libya in a widespread and indiscriminate embrace of capital punishment.

Given all the evidence to prove the death penalty does not deter crime and violates the most basic notions of human rights and international covenants, politicians should make its immediate appeal a priority. But in our own backyard, Governor Paul Cellucci has renewed his troglodytic call for the reinstitution of capital punishment in Massachusetts with a new bill.

Massachusetts already has a mandatory sentence of life without parole for first-degree murder. This sentence already insures that the most violent defenders in our society will not walk the streets again. But it also insures that if we discover our criminal justice system has made a mistake, we are able to give back to the wrongly accused the precious gift of freedom.

Already in this past year, we have seen a case which should prove once and for all why Massachusetts does not need a death penalty. After the discovery of the body of 75-year old Irene Kennedy in a Walpole park, Walpole resident Edmund Burke was charged with her murder. However, after a closer look at the evidence and the conduction of a DNA test, Burke was freed. The system did not work in this case; it miserably failed. Burke was lucky evidence showing his innocence was so quickly found.

For Bobby Joe Leaster, convicted by Massachusetts for the 1970 murder of a store owner, exoneration did not come so quickly. But in 1986 the bullet killing the victim was matched to another gun, proving Leaster was not the killer. He spent nearly 16 years in prison for a crime he did not commit, but at least he was alive to taste freedom again. In many states 16 years would have been enough time to execute this innocent man.

The death penalty holds much initial appeal for a public sick and tired of violent crime. But when alternative punishments such as life without parole and restitution for victims' families are considered by the public, support for capital punishment consistently drops. Representatives should keep this in mind and make an informed choice on, not a knee-jerk reaction to, Cellucci's bill.

For invariably the more one studies the true effects of the death penalty, the louder one clamors for its abolishment. As Massachusetts already demands the justifiably severe punishment of life without parole for first degree murder, there is no need for the commonwealth to play the role of executioner, abrogate its traditional respect for human rights, and risk the execution of an innocent person.