- The Washington Times - Sunday, December 18, 2005

During my years of service as an agent of the State of California I was called upon to participate in the litigation of two capital cases, both of which arose out of murders committed in 1982. As of this writing, neither of these men has been executed. I handled both cases to completion — i.e., affirmance — in the state court system and began representing the state in federal habeas corpus (a limited but time-consuming process) in one of them before I retired. Clearly, each man was guilty of the offences charged (each admitted his guilt) and the sentences were lawfully imposed.

At the time I was assigned these cases, our office permitted “scrupled” deputies — those who opposed the death penalty on moral grounds — to reject capital cases and to make up the work by litigating other lengthy cases. I never knew how many of our “C.O.s” (conscientious objectors) were really conscientious, or rather objected to the inordinate amount of effort, stress and frustration involved.

The records were long, the issues complex and the quality of defense representation on appeal excellent. I found myself — the power and majesty of the state personified — opposing a cadre of doctrinaire attorneys of the highest caliber fighting for a cause they believed in: opposition to the death penalty. In the course of a three-year evidentiary hearing in one case, the well-known lead defense counsel blatantly refused to obey a lawful order. When I asked him later how he could justify his actions, he answered, “Hey, I’m trying to save a man’s life here.”

Once, I received a letter from a clergyman associated with Amnesty International asking me to rethink my position on capital punishment. I wrote back and offered to discuss the matter with him, but received no reply. Now, after the high-profile execution of Stanley “Tookie” Williams, we are once again examining the issue of capital punishment. To my mind, and after years of soul-searching, it is an issue as to which reasonable minds can differ, and so the resolution of the debate is properly relegated to the domain of politics: When the majority of Californians reject capital punishment, it will cease to exist here.

During the same period, I participated in an annual program for high-school students in Los Angeles called “Law Day,” presented by the Constitutional Rights Foundation. The heavily attended event examined a number of issues of interest, including capital punishment. I would present the “pro” position, opposed by experienced defense attorneys.

During these debates, the same arguments against the death penalty were raised again and again, in large measure the same points being raised now by abolitionists: The death penalty doesn’t deter killers; state-sanctioned killing undermines the sanctity of human life; mistakes may lead to the execution of innocent defendants; we are the only civilized state that puts its citizens to death. I would respond to these arguments as follows:

While I am no penologist, I do know that the focus of California criminal statutes in general changed radically in 1977. Under the old rehabilitation model, open-ended sentences, such as “One year to life,” were commonplace, even for relatively minor offenses, potentially resulting in extended terms for offenders who were unable to convince their custodians that they were rehabilitated.

The change to determinate sentences, under which the legislature declared that imprisonment was intended to constitute punishment, resulted in fairer sentencing, but also reflected a new purpose for penal sanctions. The same approach negates the contention that capital punishment is unnecessary, as it does not deter.

The specter of state sanctioned killing, although stark, does not negate the validity of capital punishment, either. We send our troops into combat with a specific license to kill when appropriate. The possibility of erroneous execution, although extremely regrettable, is not inconsistent with the allocation of risk in society at large: Product failure, from automobiles to pharmaceuticals, also regrettable, is seen as part of life. Even if capital punishment were eliminated, the possibility of mistaken long-term imprisonment would remain.

The last contention — that we are the only civilized society that still allows capital punishment — requires a sad admission. Perhaps we are not quite as civilized as we would like to believe. We have the highest murder rate in the industrial world, by far. The wanton mayhem exacted daily in the United States requires some response, or the very notion of justice loses force.

We might say that those put to death become a sort of sacrificial atonement for this very failure. We do not choose these individuals. By their crimes, they have in essence volunteered. Perhaps when our society becomes truly civilized, when our homicide rate falls substantially, the tide will turn. I pray that day comes quickly.

Frederick Grab is a former California deputy attorney general.

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