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edited by Stephen P. Garvey. Published by: Duke University Press.
Capital punishment is one of the most serious issues in America's criminal justice system, and no other criminal issue raises nearly as much passion and debate. Killing another human being, whatever the reasons or circumstances, is a grave matter that cannot be taken lightly - but is it just and appropriate to use death as a means of punishment? America has wavered on the answer to that; for a while there has been little public debate on the merits of the death penalty, but that may be changing again.
Of course, participating in that debate is greatly aided by knowing more about the issues and facts involved, and unfortunately many Americans don't know *nearly enough to allow them to reach any good conclusions in what is clearly a life-and-death matter. They need to read and research more, and one useful book to that end is the recently published "Beyond Repair? America's Death Penalty," edited by Stephen P. Garvey.
Over the course of seven well-written essays, several scholars examine a number of the most vexing and critical questions which face the use of the death penalty. Can it be administered fairly, without regard to things like race or income? Can we avoid executing the innocent? Can those who have been convicted be given every fair chance to appeal those convictions? Are jurors qualified to impose the death penalty on someone?
It is the question of innocence that may be the primary driving force behind capital punishment debates today, as well as the shifts being seen in public opinion on the matter. In the first essay, Samuel Gross and Phoebe Ellsworth describe what they call a change from an "old script" to a "new script." These scripts are the ways in which people structure information and ideas about capital punishment. Not every bit of data fits a script, but the script defines how people view new data.
Under the old script, the courts took forever to process a death sentence and the convicted (who were always unquestionably guilty) had every legal loophole to slip through while the victims' families waited in anguish for a closure they feared might never arrive. This script has helped drive the efforts to limit appeals, limit habeas corups, and generally make it more difficult for anyone sentenced to death to escape the executioner.
The new script, however, paints a very different picture. Today, the "unquestionably guilty" are now very questionable. People whose guilt was taken for granted have been released from death row after new evidence (usually DNA evidence) proves their innocence. Too often, this release is secured not because of the proper functioning of the justice system but rather *in spite* of it. This is making even conservative Republicans a bit uneasy with how death penalty cases are handled - and making them question whether a just system of capital punishment is possible.
That's not to say that they are becoming abolitionists - far from it. Regardless of the topic, we would be mistaken to expect such a dramatic shift overnight in how someone views the world, no matter how obviously incorrect the old position might be. Our "scripts" organize how we view the world by categorizing information based upon prior expectations - and scripts don't change readily or quickly.
Fortunately, however, there is now a third option in between abolition and execution: the moratorium. Calling for a moratorium on executions does not assume that capital punishment is necessarily immoral or necessarily unjust, but it does argue that the current system is faulty in a fashion serious enough to call into doubt the justice of allowing it to continue as-is. A moratorium allows us to try to find ways to fix the problems and, if we cannot, it allows us to abandon the system without having done any more harm in the interim.
Moratoriums on executions preceded abolition in other nations, like Canada and Great Britain. A number of conservatives are calling for moratoriums in the United States and Governor George Ryan of Illinois, himself a conservative Republican, imposed such a moratorium in his own state. Giving people the third option of a moratorium allows them to give expression to their doubts about the justice of capital punishment without expecting them to make a radical shift to favoring abolition. It also allows them to further incorporate new information (like the progress of DNA evidence) into their internal deliberations.
Of course, this is no reason to assume that capital punishment will be abolished in the United States any time soon - if ever. This might happen if more people on death row are proven innocent and more states impose moratoria on executions. The execution of an innocent person, as tragic as that might be, would perhaps create the most powerful driving force for abolition - although proving that a person is innocent after they have been executed would be exceptionally difficult.
States are not inclined to share evidence in such cases and one, Virginia, even burned DNA evidence rather than let it fall into the hands of investigators looking at the possibility that an executed man was innocent. That is evidently what passes for "justice" in some jurisdictions.
Sometimes the material in this book is very technical and can even be a bit tedious. Most of it, however, is very readable, even for the average lay person, and will be particularly engaging to anyone with an interest in capital punishment and criminal justice. It will also be a bit depressing as you read over the various abuses and injustices which has accompanied the death penalty over the years.
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