There's a lot of talk (h/t Ta-Nehisi) about David Grann's new piece in the New Yorker. It's the story of Death Row convict Cameron Todd Willingham, who was convicted of triple homicide and arson on the flimsiest of evidence and was put to death before the facts could be set straight. Its an intense and arresting piece of journalism, and anti-death penalty in both an immediate, emotional way and through a more systematic exposure of the flaws inherent in the process. I didn't know this, but apparently while it has often been suspected that innocent people have been killed, it has never been officially established that the state in fact executed a "legally and factually innocent person". Grann thinks this might be the first case in the history of the United States, which Sandra Day O'Connor has claimed would be a "constitutionally intolerable event." The implication being that Willingham's case, if definitively and legally proven to have been the execution of an innocent man, could essentially force the Supreme Court to accept the unconstitutionality of the death penalty.
Which would be a great thing. It seems clear that it makes little sense as policy (the article reveals that, due to increased appeals and other legal fees, executing a man costs the state three times as much as imprisoning him for life) and can only be justified by a sort of communal blood lust - an emotional need for harsh revenge that is, I think, not inappropriate to harbor but which should be tamped down, rather than indulged, by our justice system. Even Barack Obama, in the video Ta-Nehisi shows at the link above, does not try to justify the death penalty (which, to his discredit, he supports) through statistics about deterrence or the like. Instead, he appeals to a vague but powerful notion of upholding communal values - of drawing a sort of bloody line in the sand as a political community that certain acts of transgression will simply be met with death.
But that sort of language seems like its made for people who want to feel morally upright but don't want to look the implications of that righteous indignation in the face. I'm surprised that someone like Obama - who was so intimately exposed to the way that the justice system works against people who can't afford decent lawyers and thus can't master the maze of bureaucratic bullshit that the wealthy and the connected manipulate to their benefit - doesn't recognize the gross injustice that the death penalty represents even for the truly guilty. As Ta-Nehisi puts it so well:
I think there's this presumption that people who are anti-death penalty get there out of some sympathy for criminals, or some wide-eye naivete. Maybe some people get there that way. I came up in an era where young boys thought nothing of killing each other over cheap Starter jackets. I don't have any illusions about the criminal mind. I don't believe in the essential goodness of man--which is exactly why I oppose the death penalty.
Exactly. While I don't want to put words in his mouth, I take that last line to mean that the justice system, while set up to try to be fair, is populated by shockingly imperfect and often venal, lazy, and vicious people. Which is most of us. And we should be honest with ourselves and recognize that if we are to be okay with the death penalty, that means being okay with a system that regularly executes innocent people, and regularly executes people that wouldn't have been executed had they made more money, or had fewer tatoos, or not had death metal posters on their wall (seriously - this was used to sway Willingham's jury). But let's not kid ourselves that its justice.