America Is Stuck With the Death Penalty for (At Least) a Generation

With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

Mercy is justice, too; the case for sparing Jason McGehee

The best argument against the death penalty is that the system is fallible. Lawyers are. Witnesses are. Courts are. Police are. Defendants are.

But what about those cases in which there is no question of guilt? Can those cases, at least, be considered open and shut?

Not always.

There is a reason--actually many reasons--why the law is written and interpreted by humans, not by robots. And even when a verdict of guilty is handed down in a capital murder case, the law on the books allows for review. Not only by appellate courts, but by parole boards and governors. Clemency is built into the system, too. Because cookie-cutter justice is no justice at all. There is still a chance to get it right, with firmness in the right as God gives us to see the right. (A. Lincoln.)

Clemency isn't always granted. But it's available. It's an option.

Maybe the reason that it is an option is because those who came before--and experienced before, and legislated before--knew that there would sometimes be a Jason McGehee in the system.

Jason McGehee is on Death Row in Arkansas, and has been for decades. According to court transcripts and by his own admission, he was caught up in a terrible murder in 1996. Jason McGehee was convicted of kidnapping, beating and killing 15-year-old John Melbourne Jr.

Jason McGehee and several others were convicted of killing John in retaliation for the boy's telling police about the group's petty crimes. Jason McGehee doesn't contest the conviction, or his role in the murder when he was but 20 years old himself.

It should be noted, and not just in passing, that prosecutors never accused Jason McGehee of delivering the fatal blow. But that he was part of the gang that killed the boy. (The person who actually killed John was even younger than Jason McGehee at the time, a teenager, so he will be eligible for parole in 2025.)

Of the several others who were charged in the crime, two are now free, and two others were given long prison sentences. Only Jason McGehee was given the ultimate punishment. This is what lawyers mean when they say there are "disparities in the implementation" of the death penalty. And how. A few years' difference is all that separated Jason McGehee from his co-defendants. But what a difference in their punishments.

What jumps out at the new observer in Jason McGehee's case is not what his family says about him, or his lawyers, or his friends. But what those in the system say of him. They seem to think Jason McGehee is more valuable to the prison system, and maybe even other prisoners, alive than dead.

For example, the judge who presided over Jason McGehee's trial wrote a letter to the state's Parole Board recommending clemency. It was the first time the long-time jurist had ever done such a thing for a convicted murderer. The clergy who minister on Death Row say Jason McGehee attends church regularly and even helps prepare lessons. The former director of the Department of Correction included a letter in the case file, saying he'd never heard of a Death Row prisoner having not a single altercation with a staff member or another inmate. Said former director underlined passages. "That is remarkable," he wrote.

As in, somebody should remark. And they have.

Jason McGehee has apologized for his crime. He's asked John's family to forgive him. He helps those who find themselves beside him on Death Row. Those who work for the state, or who have worked for the state, testify on his behalf. And they've seen it all. The state's Parole Board voted 6-1 to recommend clemency.

If Jason McGehee is granted clemency, that would not change his guilt, nor should it. His case isn't a matter of guilt and innocence any longer. It's a matter of punishment now.

Clemency should be reserved for very special cases. And anybody reading this case file will soon realize that this is a special case.

As Jason McGehee himself put it in a recent clemency hearing, the state has his life. The question is whether he'll die by execution sometime this year, or whether he'll die in prison 20 years from now.

Clemency is never an easy decision. We don't envy the governor his job.

But this option was built into the system just for the Jason McGehees of the world. Clemency would not only be the right thing to do for this man, and the state, but maybe for other prisoners in the system who could be helped by Jason McGehee as the years go by.

Source: Arkansas Online, Editorial, May 11, 2017

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