March 2013 Bar Bulletin
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March 2013 Bar Bulletin

Why I Oppose Capital Punishment

By Michael J. Bond


About 10 years ago, I changed my mind about the use of capital punishment in our criminal justice system. And now that we have legalized personal use of marijuana and gay marriage, I think it is time to end another mistake.

For as long as I can remember, and I will be 61 years old this year, I believed that the death penalty was an appropriate, just and valuable form of punishment for certain crimes. For certain crimes there was an almost a priori recognition that the perpetrator should die. What right does such a person have to continue to live? Aren't the victims of such crimes entitled to retribution? Isn't there any sense in which death serves as deterrence, even if only the perpetrator will forever be deterred? Before I changed my mind, these sentiments led me to conclude that the death penalty was a social good.

I have some familiarity with the system, although admittedly my criminal law experience is very limited. I am a practicing attorney with a civil litigation practice and I have never tried a capital case. For three years following law school, I was a Marine Corps judge advocate. After completing training, I served first as a defense counsel and then a prosecutor at general courts martial. These are contested jury trials in which the Federal Rules of Evidence and the same constitutional protections accorded those accused of crimes in the civilian world apply.

Since entering private practice, I have handled several legal malpractice claims brought against criminal defense attorneys. In some cases, the hapless criminal, serving as his own "jailhouse lawyer," filed the suit. In other cases, competent and respected civil counsel filed the suit. In all cases the plaintiffs sought damages for a botched criminal defense, and sometimes the claims had merit.

In 34 years of trial practice, I've had the good luck to try many contested jury trials to verdict and I've seen many judges and juries work in all but a few of the counties of our state. I take pride in the craft of my profession, I enjoy seeing good lawyers and judges at work, and I read about and study trial practice. I think I know how our system works.

Many recent arguments over capital punishment arise in the context of DNA testing. Many people advocate using this type of technology to reevaluate convictions out of concern that we not execute an innocent person. This and other scientific technology may increase the level of certainty in the correctness of a particular conclusion. Technology can and should be used to assist in determinations of responsibility, but technology does not answer my objections to capital punishment.

Most other objections to the ultimate penalty beg the question and miss the fundamental issues, I think. Some argue it costs too much, what with the constitutional right to appointed counsel, exhaustive investigations, long trials and seemingly endless appeals. In another economic argument, some argue that in the present system money buys freedom and the poor get short shrift. Most would agree that this two-tiered justice system is not fair to the poor, and those who think about it would agree it is also not in the long-term best interests of the wealthy, who generally want to retain such privileges as they can.

Some argue the problem is that Congress or the states have made too many crimes punishable by death. Some argue that the manner of the execution is barbaric, as if lethal injection was more humane than hanging. Recently, Justice Mary Fairhurst correctly and wisely, in my view, dissented in a capital case arguing that the death penalty can never again be proportionately imposed in view of the decision to spare Gary Ridgway's life in exchange for his confession to horrific crimes. Yet each of these flaws in the state-sanctioned machinery of death can be repaired and no repair addresses the fundamental issues that led me to conclude capital punishment should be abolished.

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