Wednesday, October 31, 2007

ABA Death Penalty Stay

I saw in the news the other day that the American Bar Association is calling for a halt to all death penalty executions until reforms are made.

This was followed by the Supreme Court giving a halt to some executions until they sort out the lethal injection issue, and whether it's "cruel and unusual".

I noticed that in both cases, they weren't saying that the death penalty in and of itself is wrong - but there's a problem with how it is carried out.

In the ABA's case, they focused on the process. And the statistics. The ABA took a look at things and went "Hm - if you're black, you're more likely to get the death penalty. And if you're black and the victim is white, then you're *really* in trouble, because people seem to think that killing a white person by a black person is more deserving of death than if you kill - well, anybody else."

Compound that with poor people getting more death sentences than rich people, and after awhile, it becomes clear that justice isn't blind - but the scales are being rigged with coins.

A month ago when I was traveling from DC, I was listening to an episode of "Tech Nation" that discussed prison issues in America. The person doing the study was British, and he found an interesting thing. The United States is going through the exact same thinking that the British did about a hundred years ago with prisons.

In the late 1800's and the early 1900's, the British thought they had it figured out as far as prisoners. You punish them - hard. Make their lives a living hell. Are they in debt? Well, then you put them into jail until they could pay their way out, and if they couldn't, then it would take them longer to learn their lesson! While in jail, give them the most menial tasks. In some cases, literally just sitting around breaking rocks, to remind them of how awful the experience was. The goal was to make prison life so unbearable, that upon getting out the criminal would decide never to go back. They would have been Punished, and thereby would learn.

The problem, they discovered, is that the prisoners would get out of jail even worse than before. They would go on to be even worse criminals.

So, the British system changed, and stopped being about punishment, and about reform. Eventually, things got better. Crime dropped. It's no paradise - but it certainly lead to a better system than they had before.

Now, America is in the same place. During the 1970's Perry Mason was The Lawyer to watch on TV. Now, Law and Order dominates three different shows, showing how those nasty, slimy defense attorneys do everything to protect their obviously guilty clients. We have supermax prisons where inmates get no TV, no time together, treated as little more than dangerous animals.

Sure - prisoners are bad people. But - where are the efforts to change them? Why are our new prison complexes being supported now by huge businesses which have no vested interest in getting prisoners to stop committing crimes?

Think about the latter for a second. If you're a business who builds, owns, and runs a prison - why would you want prisoners to ever leave, or leave and never come back? That's only going to ruin your business!

I don't want prisoners coddled. I don't want the death penalty to change. But - I do want some changes:

1. Changes in trials. I've been thinking about this one for some time, and I'm not sure on how it would be implemented. But I go back to a story in "Freakanomics", where the classical music industry changed so that judges would not be allowed to see prospective players, only listen to their music. This simple change lead to the "knowledge" that women could not play instruments as well as men being changed, and today the ratio between professional men and women in orchestras is nearly 50/50.

Juries look at a person in a bench, and from the ABA's discovery, race clearly plays an issue. They see a black person, a white victim, and death is more likely. I can't help but wonder what would happen if the jury could not see the victim, or the defendant? I know - this is just as impractical. They have to see the evidence. If there's a video tape of the crime, they have to see it.

I don't know how to solve this. Perhaps forcing a jury to be more racially mixed (kind of an affirmative action for jury pools?). I don't know the answer to this one - but clearly the system has to change.

2. Reform, not punishment. I can't say that one enough. Our prisons are *not* about reform. Yes, you need good security to protect inmates and guards. But I also want to see more education. Every prisoners should be exiting with at least a high school education, and hopefully a trade. They should be moved away from their home town so they are away from the influences that "caused them to stray". Post care should be given - not just probation follow ups, but real care, to make sure they are housed and clothed and healthy and working.

Remove any excuses for blaming it on bad home life. Daily therapy at prison so there's no reason why a prisoner won't know why they are being punished, why committing crimes is "bad". Follow up therapy to make sure they're remaining productive.

3. Give the death penalty only when they can not be taught. If a person gets all of the breaks I outline above, then - and only then - can we enforce the death penalty, because then a prisoner will have proven to us that they can not (or will not) be taught how to function in society.

It will be expensive, but I'm willing to bet if we do it right the first time, we'll reduce crime over the long term, and that will save us more money than just building more prisons.

Now the question is: what next?

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