.. -old white schoolgirl. Interrogated by the police, they were told, One of you two is going to hang for this. Looking at Brandley, the officer said, Since you’re the nigger, you’re elected. In a classic case of rush to judgment, Brandley was tried, convicted, and sentenced to death.
The circumstantial evidence against him was thin, other leads were ignored by the police, and the courtroom atmosphere reeked of racism. In 1986, Centurion Ministries – a volunteer group devoted to freeing wrongly convicted prisoners – came to Brandley’s aid. Evidence had meanwhile emerged that another man had committed the murder for which Brandley was awaiting execution. Brandley was not released until 1990.39 Each of these cases has a reassuring ending: The innocent prisoner is saved from execution and released. But other cases are more troubling.
In 1992, Roger Keith Coleman was executed in Virginia despite widely publicized doubts surrounding his guilt and evidence that pointed to another person as the murderer – evidence that was never submitted at his trial. Not until late in the appeal process did anyone take seriously the possibility that the state was about to kill an innocent man, and then efforts to delay or nullify his execution failed.40 Coleman’s case was marked with many of the circumstances found in other cases where the defendant was eventually cleared. Were Coleman still incarcerated, his friends and attorneys would have a strong incentive to resolve these questions. But because Coleman is dead, further inquiry into the crime for which he was convicted is extremely unlikely. In 1990, Jesse Tafero was executed in Florida. He had been convicted in 1976 along with his wife, Sonia Jacobs, for murdering a state trooper.
In 1981 Jacobs’ death sentence was reduced on appeal to life imprisonment, and 11 years later her conviction was vacated by a federal court. The evidence on which Tafero and Jacobs had been convicted and sentenced was identical; it consisted mainly of the perjured testimony of an ex-convict who turned state’s witness in order to avoid a death sentence. Had Tafero been alive in 1992, he no doubt would have been released along with Jacobs.41 Tafero’s death is probably the clearest case in recent years of the execution of an innocent person. Several factors help explain why the judicial system cannot guarantee that justice will never miscarry: overzealous prosecution, mistaken or perjured testimony, faulty police work, coerced confessions, the defendant’s previous criminal record, inept defense counsel, seemingly conclusive circumstantial evidence, and community pressure for a conviction, among others. And when the system does go wrong, it is volunteers outside the criminal justice system – journalists, for example – who rectify the errors, not the police or prosecutors.
To retain the death penalty in the face of the demonstrable failures of the system is unacceptable, especially since there are no strong overriding reasons to favor the death penalty. CAPITAL PUNISHMENT IS UNJUSTIFIED RETRIBUTION Justice, it is often insisted, requires the death penalty as the only suitable retribution for heinous crimes. This claim does not bear scrutiny, however. By its nature, all punishment is retributive. Therefore, whatever legitimacy is to be found in punishment as just retribution can, in principle, be satisfied without recourse to executions. Moreover, the death penalty could be defended on narrowly retributive grounds only for the crime of murder, and not for any of the many other crimes that have frequently been made subject to this mode of punishment (rape, kidnapping, espionage, treason, drug trafficking). Few defenders of the death penalty are willing to confine themselves consistently to the narrow scope afforded by retribution.
In any case, execution is more than a punishment exacted in retribution for the taking of a life. As Nobel Laureate Albert Camus wrote, For there to be equivalence, the death penalty would have to punish a criminal who had warned his victim of the date at which he would inflict a horrible death on him and who, from that moment onward, had confined him at his mercy for months. Such a monster is not encountered in private life.53 It is also often argued that death is what murderers deserve, and that those who oppose the death penalty violate the fundamental principle that criminals should be punished according to their just desserts – making the punishment fit the crime. If this rule means punishments are unjust unless they are like the crime itself, then the principle is unacceptable: It would require us to rape rapists, torture torturers, and inflict other horrible and degrading punishments on offenders. It would require us to betray traitors and kill multiple murderers again and again – punishments that are, of course, impossible to inflict.
Since we cannot reasonably aim to punish all crimes according to this principle, it is arbitrary to invoke it as a requirement of justice in the punishment of murder. If, however, the principle of just deserts means the severity of punishments must be proportional to the gravity of the crime – and since murder is the gravest crime, it deserves the severest punishment – then the principle is no doubt sound. Nevertheless, this premise does not compel support for the death penalty; what it does require is that other crimes be punished with terms of imprisonment or other deprivations less severe than those used in the punishment of murder. Criminals no doubt deserve to be punished, and the severity of the punishment should be appropriate to their culpability and the harm they have caused the innocent. But severity of punishment has its limits – imposed by both justice and our common human dignity.
Governments that respect these limits do not use premeditated, violent homicide as an instrument of social policy. Some people who have lost a loved one to murder believe that they cannot rest until the murderer is executed. But this sentiment is by no means universal. Coretta Scott King has observed, As one whose husband and mother-in-law have died the victims of murder and assassination, I stand firmly and unequivocally opposed to the death penalty for those convicted of capital offenses. An evil deed is not redeemed by an evil deed of retaliation. Justice is never advanced in the taking of a human life.
Morality is never upheld by a legalized murder.54 Kerry Kennedy Cuomo, daughter of the slain Senator Robert Kennedy, has written: I was eight years old when my father was murdered. It is almost impossible to describe the pain of losing a parent to a senseless murder. .. But even as a child one thing was clear to me: I didn’t want the killer, in turn, to be killed. I remember lying in bed and praying, ‘Please, God. Please don’t take his life too.’ I saw nothing that could be accomplished in the loss of one life being answered with the loss of another. And I knew, far too vividly, the anguish that would spread through another family – another set of parents, children, brothers, and sisters thrown into grief.55 Across the nation, many who have survived the murder of a loved one have joined Murder Victims’ Families for Reconciliation (headquartered in Virginia), in the effort to replace anger and hate toward the criminal with a restorative approach to both the offender and the bereaved survivors.