Capital Punishment: What is the Governor’s Role?

Washington Governor Jay Inslee

With all that we’ve been writing about false convictions, we can certainly understand Washington State Governor Jay Inslee’s announcement this week that he will issue a reprieve on any execution warrant during his term. “There are too many flaws in the system,” the governor declared. “And when the ultimate decision is death, there is too much at stake to accept an imperfect system.”

Governors John Kitzhaber of Oregon and John Hickenlooper of Colorado have issued similar reprieves, and you may recall that in 2003, Illinois Governor George Ryan commuted all death sentences in the state to life imprisonment.

While we certainly applaud these governors’ intentions, we respectfully submit that the actions miss the point.

Governor Inslee is an intelligent, thoughtful and admirable man. But let us acknowledge a fact of the democratic process: Each of these states carry capital punishment on the books, which means the people, through their elected representatives, approve.

The next point is that getting rid of all death sentences because of the possibility of error is as indiscriminate as imposing it when it is not appropriate. Yes, there have been a sizable number of exonerations in death penalty cases. But that speaks to a need to fix the system.

But how can we do that, one may ask, when that system is subject to human fallibility? No system of this sort can be perfected, but we can come close, as we’ve outlined in our recent book, Law & Disorder. We would largely eliminate the death penalty for felony murders, in which things happen very fast, eyewitness identification tends to be faulty, and multiple offenders can make deals to save themselves and sell out others. These also tend to be the cases in which racial discrimination and inadequate counsel play the greatest roles.

But we would hesitate to eliminate the ultimate sanction in the instances of predatory and repeat offenders, where the facts and proof are much more clear cut and society needs to make an ultimate statement. The two killers of the Petit family in Connecticut, for example, demonstrated pre-planning, extreme cruelty, and were apprehended by police as they departed the scene, leaving no ambiguity about their guilt. To allow individuals like these to continue to live after sadistically beating, raping and burning alive a mother and two daughters strikes us as immoral, plain and simple.

Rather than throwing up one’s hands and saying the system doesn’t work, what we would like to see in each death penalty state is a rigorous review of each individual case on its own details and merits, as former Governor Bob Graham instituted in Florida. Favoring the death penalty but acutely sensitive to the responsibility he had to insure that no innocent person be executed, Graham appointed an independent counsel to examine each case in depth before he would sign a death warrant.

We have not seen any evidence of an unjust execution under these circumstances. Contrast this to Texas under Governor Rick Perry, who refused to halt the execution of Cameron Todd Willingham for double murder by arson even though three of the world’s leading fire experts stated with certainty that the scientific evidence at trial was flawed and the fire was not an arson at all but an accident.

If the citizens of Washington or any other state wish to eliminate the death penalty, that is up to them and a public dialogue is the proper place to state. But if it is on the books, no one should make a mockery of it by proclaiming that, “We don’t really mean it.”

Punishment should be commensurate with the crime. And the only way to assure that, to truly approach the ideal of justice, is to deal with each one individually. Otherwise, we risk subverting the roles of jury and judge upon which our system is founded.

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