Thursday, August 13, 2009


Yes...The System is Broken

I recently read a story that appeared as a news report from Channel 6 WATE in Knoxville. The title of the story, "Many Say Tennessee Death Penalty System Broken."

Of course, I was hopeful that the story would cover a number of the many problems highlighted by the Tennessee Study Committee including the lack of adequate defense attorneys and services for those on trial for capital murder, the lack of recorded interrogations, the lack of open file discovery procedures, the disproportionate numbers of those with severe mental illness on death row, the lack of more reliable eyewitness identification procedures, the lack of preservation and proper storage of biological evidence, etc.

Instead the story focused on only one problem the Committee addressed: the length of time that people await execution in Tennessee, an average of 20 years. I am the first to admit that delay is problematic for everyone, particularly for victims' families forced to endure this process as well as for citizens whose tax dollars are spent in years of litigation.

In the report, U.T. Law Professor Dwight Aarons points out that if we were dealing with the issue on the front end when determining whether or not to seek death and sought it less frequently, the time and money saved would be substantial. The reality is that the bulk of the cost with the death penalty comes, not from all the appeals but from the costs of the inital trial, with many defendants getting life sentences anyway after all the money is spent on seeking the death penalty

However, I was bothered by former Sevier County District Attorney General Al Schmutzer's comment "If putting someone in jail deters some people from committing crimes, obviously putting someone to death would deter that many more." Whoa there.

Here is where opinion and fact get confused. Such an assumption is neither obvious nor accurate. The fact is that a recent survey of the top criminologists in this nation released in June of this year show that a full 88% reject the idea that the death penalty is a deterrent to homicide ("Do Executions Lower Homicide Rates? The Views of Leading Criminologis," Northwestern University School of Law's Journal of Cimrinal Law and Criminology by Professor Michael Radelet and Tracie Lacock.)

And, in a brand new study just released by Columbia Law School called, "Execution and Homicide: A Tale of Two Cities," Professors Franklin Zimring, Jeffrey Fagan, and David T. Johnson compare homicide rates in two similar cities, Singapore and Hong Kong, cities whose use of the death penalty is radically different. The bottom line of that study is that over the past 35 years with Singapore executing a high number of people and Hong Kong with no executions in a generation, the homicide rates in both cities were almost the same.

The fact is that the majority of reliable studies on deterrence have shown no deterrent effect.

Here is another fact not mentioned in the article: in the modern era, though Tennessee has only executed 5 people, our state has also released 2 men from death row who were wrongly convicted, Paul House and Michael McCormick, both of whom spent over 20 years each fighting their convictions. What would have happened to them if we sped up the process? Is killing some innocent people just the price we pay for the death penalty? And if so, how does that make us any different as a society than those who we are condemning?

To date, 135 people have been released from death rows nationwide when evidence of their innocence emerged. It seems to me when you are talking about deciding who lives and dies, with these kind of mistakes, speeding things up is a recipe for disaster. With alternatives like life without parole, why do we take such horrible risks with the death penalty.

So, actually General Schmutzer and I do agree: the death penatly system in Tennessee is broken.
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