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Capital punishment doesn't deter crime and it is often wrongly applied.

A Moratorium Is A Start, But ...

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Faced with 12 executions and 13 death row exonerations, Illinois Gov. George Ryan decided that he couldn't pull the switch (or is that hit the plunger?) until the mess gets straightened out. He declared a moratorium on executions while Illinois studies its capital punishment system, vaulting the death penalty debate onto editorial pages throughout the country. His decision was particularly noteworthy given that Gov. Ryan is the state campaign manager for George W. Bush, who, as governor of Texas, has presided over more executions than have occurred in any other state since the reinstitution of capital punishment.

Remarkably, Gov. Bush denies even the possibility of a wrongful execution in Texas. The president is in the same state of denial when it comes to the feds. Maybe John McCain's comparison between the two wasn't so far off after all.

Then "West Wing" chimed in. It laid waste to the Biblical argument for capital punishment, pointing out that obstacles under Jewish law were so great that it was virtually never imposed, and that the Bible also prescribes the stoning of children and the execution of homosexuals, which surely would not pass muster today. It is ironic that, so soon after Virginia executed two juvenile offenders in a week, Hollywood would suggest that such executions are now beyond the moral pale.At least they don't use stones anymore.

Back to Illinois. Just why is their death penalty system so damned inexact? Of course, maybe the real question is why has Illinois uncovered so many of its mistakes. Virginia hasn't had to free any death row inmates — we've only had enough doubt to commute five death sentences to life in prison. Could it be that Illinois is willing to look a little harder, that they wouldn't be so quick to refuse DNA testing before an execution and approve destruction of the evidence once the deed was done, as Virginia did with Joe O'Dell?

After all, Virginia chauvinism aside, all the evidence suggests that our system would be among the least reliable. We require the prosecution to provide only minimal pretrial discovery to defendants, rarely require a witness list, and never require the disclosure of witness statements. We make it difficult for indigent defendants to obtain experts or even an investigator. In short, Virginia uses trial by ambush, a system designed with convictions, not reliability, in mind.

And we do little to assure that defendants facing death have the quality of representation such cases demand. We executed Joe Wise, whose attorney had never even tried a case to a jury before. The standards for counsel we subsequently adopted are not only weak, they aren't even mandatory. And we surely don't enforce the right to competent counsel or to fair play by the prosecution. Our courts haven't found a single attorney to have been ineffective, or a single prosecutor to have broken the rules. That's zero for well over a hundred.

The difference between Illinois and Virginia is not that Illinois' system is worse, but that we are so reluctant to admit that ours is less than perfect. Surely, it isn't possible that a Virginia jury could be influenced by — dare I say it - racial bias. (Judge: "Juror Rocker, would you be willing to set aside your feelings and judge the defendant as if he had never been on the train to Yankee Stadium")

The A.G.'s "Death Squad" even scoffs at Earl Washington's case, where they had to disregard their own trial evidence in order to rationalize the subsequent DNA results excluding him as the perpetrator. Four noncapital Virginia inmates have been exonerated by DNA, including one who pled guilty.

How can we possibly pretend that we will not execute an innocent defendant, assuming we have not done so already?

The question then must be: What benefits do we reap that outweigh this terrible price? Virtually no one seriously argues deterrence anymore. It's hard to imagine that people capable of such terrible crimes are going to be dissuaded by the prospect of execution rather than life in prison.

There is vengeance, of course. Very Old Testament, but seemingly reserved for The Lord. We spend all that time teaching our children that vengeance is a base sentiment, but then its OK when done as a group activity.

Then we have "closure" — the gentrification of vengeance. But isn't it somewhat disturbing when, in the name of closure, decent people declare themselves to be "overjoyed" when the death penalty is imposed? Have we really done them a service by offering the death of another human being — someone else's child as the path to mental health?

And why is it that only some victims' families need closure? Most murderers don't receive the death penalty; indeed, they aren't even eligible.

Do the families of their victims need closure less because their crimes don't fit some legal definition? Indeed, are those of drunk driving victims less entitled? Is it possible that, when politicians repeat the "closure" mantra, they are cynically exploiting a few at the expense of the many, who, through no fault of their own, just aren't eligible for the grand prize?

Any loss of a loved one — whether by homicide or not — is terribly painful. But the death penalty offers neither real comfort nor safety. It ultimately demeans us. While we call for human rights around the world, capital punishment, especially the execution of juveniles and the mentally retarded, costs us the moral high road, because we are the ones who violate world standards.

But I guess, as the minister preached in "Serial Mom," if there was something wrong with capital punishment, surely Jesus would have said so while he was on the Cross.



Gerald T. Zerkin is a Richmond lawyer in private practice, who has been involved in capital litigation since 1981. He is a member of the boards of Virginia College of Criminal Defense Attorneys and Virginia Capital Representation Resource Center.

Opinions expressed on the Back Page are those of the writer and not necessarily those of Style Weekly.

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