(This article was written regarding the death penalty when awareness that the United States has a legal system, not a justice system, was brought into focus through debate over that penalty.  As it became obvious that even the legal system was being subverted by the people within the criminal justice community, who, all too predictably, suffered from the human condition, it became equally clear that the death penalty needs to be abolished--not because the penalty was too harsh, it is not, but because there was not enough certitude that those who were going to be executed were guilty.)

When people think about crime and punishment, they want it black and white. And then, most importantly, they simply want it to go away. In spite of the media's fascination with the front door of the federal prison in Terre Haute, Indiana, where Timothy McVeigh went peacefully to sleep for his misdeeds in Oklahoma City, the public couldn't much be bothered with McVeigh anymore. He did it, he admitted it, he seemed ready to die for it. Black and white.

I've been a death penalty fan for nigh on 50 years, ever since the Rosenbergs 'walked the chair' in 1953 for giving our atomic secrets to the Soviets. No more. That's called an epiphany. I've had a few in my life and this one is as sad as some of the others have been joyous. I'd like to think I have been naïve, but the reality is much worse than that.

Simple fact: some people on death row don't even belong in prison, much less waiting on line for their 'last meal'.

There are two catches to modern criminal law, one theoretically providing more certainty, the other equally mucking that sureness up. Query: how many prisoners have been taken off death row because of science, or because someone finally told the truth, or because prosecutorial misconduct, or plain criminal activity by the crime fighters is finally uncovered, or because of simple racial prejudice? Since 1973, when capital punishment was again a civil society's reaction to heinous crime, ninety-five death row inmates have been exonerated. Found innocent and set free. One in a decade would be appalling, a score a century frightening, but 95 in 38 years is just too much, because its unlikely we found all the innocent. The time for handwringing is long past and the time to stop burying reality in the guise of moral necessity has arrived in full bloom.

Law enforcement is capable of savage indifference to the individual if these righteous warriors feel justified in their actions by an overarching goal. Just the recitation of a few recent cases must give anyone pause. Joseph Salvati, a Boston resident spent 30 years in prison, put there by the FBI for a crime the FBI knew he didn't commit. The FBI withheld critical information regarding guilt in the 1963 bombing of a Birmingham, Alabama church in which 4 little girls were killed thus allowing the perpetrator of that crime, Thomas Blanton, Jr., to remain free for the last 38 years. And, a final straw, Joyce Gilchrist, a forensic scientist in Oklahoma is the poster child for mendacity in law enforcement (TIME, May 21, 2001). Gilchrist has been charged with making outright scientific errors, far overstepping, in courtroom testimony, accepted limits on forensic certitude, withholding evidence from defense counsel and, perhaps most egregiously, failing to perform tests that could have cleared defendants. Some of Gilchrist's victims have been executed, others have been removed from death row, still others have been freed. To say the least, Gilchrist is aggressive in helping prosecutors.

Courtroom science is enormously persuasive, especially when eyewitnesses are notoriously unreliable. FBI testimony is thought to be unimpeachable. But, people, even FBI agents and forensic scientists with hopefully impeccable credentials and ethics, can be coached, cajoled into testifying to what they think, or a prosecutor convinces them, is needed for a conviction.

What this all boils down to is that everyone in the criminal justice system, like the rest of us, suffers from the human condition, Joyce Gilchrist apparently more than others. What that means for the system is that justice can be personal to the players who control the game. Of course, we all hope that isn't the rule, and it isn't, but we must take notice that it isn't all that much of an exception. If the system isn't certain, we shouldn't be either.

Someone in prison can always work to overturn the corruption, the falsity, the mendacity. Someone who is dead cannot. And prosecutors, who know their victims and their relatives and lawyers will be around, may have cause to be more careful, if not honest.

Do we execute the innocent? There seems little question that we have. Is that enough to overturn America's long standing love affair with the death penalty for the monsters in our midst? Put simply, yes.

It isn't that the death penalty is barbaric, it may or may not be depending on your personal preferences, or that it may be unevenly applied, life itself is an uneven proposition; the fact that the criminal justice system may be uneven is a given. It is that the death penalty is certain when human beings are not. Human foibles will cause human error or human emotion to enter the picture. It isn't that prosecutors and judges and police are intent on doing bad things to bad people and it isn't their mistakes I'm afraid of, although that is an important consideration, it is their personal needs and feelings that concern me most. That an individual's psyche would come before truth and honesty in the application of the criminal laws is a fact of life. That being the case it should as well be a fact that we cannot execute people who are on death row potentially as a result of that symptom. Is this throwing the baby out with the bath water, you bet. Is this necessary, absolutely.

Some monsters will stifle in prison for decades, but no innocent person will ever die stupidly, vindictively or erroneously. There will still be black and white cases where we want the beast to burn, the Tim McVeigh's, but we need to forego that gratification in order to be certain at the other end of the scale. It is because human beings cannot be exquisitely dispassionate and fair, it is because they act as they can rather than as they should, that we have to take the death penalty off the table. It is a matter of both common sense and common decency. The death penalty is not barbaric if the victim did the crime, it is barbaric only when they didn't.

Doubt, that great menace that makes us tremble at the church door on our wedding day and almost paralyzes us when writing a check with more than two zeros on it the first time, is a debilitating and demanding mistress.

My doubt-detector is in the red zone, and has been there for weeks. Its constantly ringing alarm caused close inspection not just of my values but of our system, and I've found our system wanting.

This article first appeared in Columbus Alive.

© 8/2/01