GRASSROOTS/Hank Kalet

Stop Playing God

Arial Castro, the man charged with kidnapping and raping three girls in Cleveland, is likely to face the death penalty. Jodi Arias could end up on death row in Arizona, having been convicted of killing her boyfriend.

And Dzhokhar Tzarnaev, one of the alleged Boston Marathon bombers, is likely to face federal charges, meaning he could be sentenced to death.

Three high-profile crimes. Three gruesome acts. This is a no-brainer, some might be inclined to say. Give each of them the needle.

“Capital punishment must be reserved for those crimes that are truly the worst examples of human conduct,” said Cuyahoga County prosecutor Timothy McGinty, who will prosecute the Ohio kidnapping case (Time). “The reality is we still have brutal criminals in our midst who have no respect for the rule of law or human life.”

That we are talking about vastly different kinds of crimes and vastly different circumstances does not seem to matter. The polling on capital punishment is clear — Americans view the death penalty as an acceptable form of justice.

Only, these differences do matter. They offer evidence that our approach to capital punishment remains arbitrary and that, while we talk about finding closure for families or justice for victims, the victims play little role in how we adjudicate death-penalty cases.

Take the Ohio kidnapping case. The use of the death penalty there is going to hinge on the question of when life begins: Can we assume that a fetus is a living human being? Castro can only face the death penalty, according to press reports, if the answer is yes — then he can be charged with aggravated murder based on the notion that the forced termination of a pregnancy amounts to murder.

Putting Castro to death in this case, therefore, privileges the unborn over other victims of less sensational crimes, something the prosecutor seems willing to accept.

For Arias, jurors must find that the “murder was committed in an especially cruel, heinous and depraved manner” (Time). Simply murdering her boyfriend would not be enough.

Then there is Tzarnaev. For him to face the death penalty in Massachusetts — which does not have the death penalty — he would need to be tried in federal court, which seems likely. It also seems likely, however, that federal prosecutors will not take a chance that execution might sway a jury against conviction and, according to press reports, they appear willing to take the death penalty off the table if Tzarnaev cooperates.

Different murders, different victims, the same basic punishment. How any of this can seem systematic and fair is beyond me. But fairness has never been a part of the death penalty equation. The system has always been rife with inconsistencies and biases. Blacks who kill whites are far more likely to be sentenced to death — in fact, killers with white victims are more likely to be sentenced to death.

The arbitrary nature of the death penalty extends beyond this to involve not just questions of bias, but of competence, geography, politics and money.

“If you can afford a decent defense, you probably will not die in an execution chamber,” Martin Clancy, who along with Tim O’Brien, is the author of Murder at the Supreme Court, told Bill Moyers in April.

O’Brien agreed.

“These are factors that should not figure into capital punishment at all,” he said. “If you don’t have any money, and even if you do have any money, it’s very difficult to get a good lawyer to represent you. All these things lead us to believe that as a practical matter it doesn’t work.”

And it can’t. Justice is supposed to be blind, but it also can be arbitrary. That may be OK when dealing with punishments that are far less final, but it should not be when human life is in the balance.

“As you look back you discover that the smartest men in America, the most decent people in this country for 200 years in our legislatures, in the Congress, in our courts both lower courts and the Supreme Court, have tried to figure out a fair and equitable way to administer capital punishment,” Clancy said. “And as far as I’m concerned they’ve failed.”

More and more people are coming to that conclusion. While polls show support for capital punishment consistently between 62 and 65 percent, the support is shallow. Offering an anonymous opinion to a pollster, as attorney and author Bill Blum points out, is different than having to actually sit on a jury and condemn someone to death. About two thirds of death penalty cases since 1988 have ended with life sentences.

“Jurors, as opposed to members of the public responding anonymously to opinion polls, have a hard time playing God and condemning other people to die,” he said in an essay on truthdig.com. “Yet that is exactly what the current system of capital punishment, in place both at the federal level and in the 32 states that retain the death penalty, calls upon them to do.” That’s not a position we should put anyone in.

Hank Kalet is a poet and journalist living in New Jersey. Email grassroots@comcast.net; blog kaletblog.com; Twitter @newspoet41; Facebook/hank.kalet.

From The Progressive Populist, June 15, 2013