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USA | Biden needs to act on growing anti-death penalty sentiments

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The flattening of public discourse — political, social, moral and ethical — into a simplistic left-right binary is a disturbing trend that too few of us push back against. People are encouraged to live in their echo chambers through news outlets tailored to confirm their worldviews and social media feeds custom-designed to reinforce their biases. This polarized discourse has created a false narrative around the death penalty that relies on simplistic and overgeneralized notions of our country’s partisan divide. It is a narrative that, while easy to communicate, ignores the diversity of voices expressing serious concerns about how the death penalty operates in America. For instance, the authors of this op-ed belie that simplicity. One of us is a former Democratic U.S. senator from Wisconsin, a state that has not had the death penalty since 1853, and who has worked tirelessly throughout his public life to end the death penalty. The other is the former Republican-appointed United States a

USA | Some Think Dylann Roof Deserves to Die, But Executing Him Lets Hatred Carry the Day

On August 25, Dylann Roof, one of this nation’s most reviled mass murderers, was back in the news when a federal appeals court upheld his conviction and death sentence for the 2015 murders of nine members of the historic Emanuel African Methodist Episcopal Church (“Mother Emanuel”) in Charleston, South Carolina, during a meeting of a Bible-study group.

The court rejected Roof’s contention that he was not competent to stand trial and that because he was mentally ill, he should not have been sentenced to death. It also upheld the constitutionality of the law under which Roof was charged and sentenced.

In response, Roof’s lawyers have promised to bring his case to the Supreme Court. Given the Court’s increasingly pro-death penalty decisions, they have little chance of succeeding.

The appeals court abandoned its arid legal prose when it concluded that “No cold record or careful parsing of statutes and precedents can capture the full horror of what Roof did. His crimes qualify him for the harshest penalty that a just society can impose.”

The horrors of what Roof did surely beggar the imagination. As the appeals court put it, “On June 17, 2015, twelve parishioners and church leaders of Mother Emanuel—all African Americans—gathered …for their weekly Bible study. Around 8:16 p.m., Roof entered…carrying a small bag that concealed a Glock .45 semi-automatic handgun and eight magazines loaded with eleven bullets each. The parishioners welcomed Roof, handing him a Bible and a study sheet. For the next 45 minutes, Roof worshipped with the parishioners…. Roof then took out his gun and started shooting.”

According to a National Public Radio report, Roof learned to hate Black people on the Internet. He wanted to use the killings at Mother Emanuel Church to send a message to Black people all over the United States and hoped to stir up racial strife in this country.

He was convicted of “racially motivated hate crimes resulting in death.”

Determining what someone like Roof deserves is surely a necessary first step in any just system of punishment. But decisions about punishment involve more than that. They may rightly take into account the circumstances or context of an offense and an offender as well as how best to use society’s resources.

Every day in this country, legal officials—whether police on the street, prosecutors deciding whether to charge someone with a crime, or presidents making clemency decisions—exercise discretion and consider such things. They do not arrest, charge, or punish everyone who might deserve it. We expect them to use their judgment in the name of justice and make careful determinations about how people who commit crimes should be treated.

And where death is a possible punishment, determining who, if anyone, deserves to die and who should actually get a death sentence is an incredibly difficult task.

Recognizing this, American law separates the determination of who deserves to die from the question of their criminal guilt through what is called a “bifurcated trial”: the penalty determination is made only after a separate fact-finding exploration of so-called “aggravating and mitigating” factors.

Dahlia Lithwick calls this system a trial of the “head,” followed by a trial of the “heart.” As she puts it, “We have become so accustomed to bifurcated capital trials in America…—that we forget how truly bizarre this system can be. We end up with a ‘head’ trial—a dispassionate hearing on what happened, in which evidence is sometimes cruelly limited to the cold, hard facts. That proceeding is closely followed by a ‘heart’ trial—a mini-hearing full of hearsay and legally irrelevant detail…after which jurors are asked to engage in a subjective balancing test—weighing a list of aggravating factors (was the murder particularly heinous; was it done for financial gain; does the defendant have a violent criminal history?) against a list of mitigating ones (was the defendant abused as a child; was he on drugs or otherwise impaired in his judgment?).”

The United States Supreme Court (sic) that in making this complex determination the law can only take jurors so far. The Court has said that “because of the ‘severity and irrevocability’ of the death penalty, it is ‘qualitatively different from any other punishment.’”

Thus, in Lockett v. Ohio, the Court decided that jurors “must consider a full range of mitigating factors before imposing the death penalty. These factors included any aspect of a defendant’s character or record and any circumstances of the offense proffered as a reason for a sentence less than death.”

This makes individualized consideration of the background and character of the accused “a constitutionally indispensable part of the process of inflicting the penalty of death.”

At the end of the day, jurors in a capital case are left to make a uniquely moral decision about whether a particular defendant in a particular case should be put to death.

But deciding whether someone should be executed is not just about what they have done or what we may think they deserve. It is as much about who we are and who we want to be. From The Gospel of Matthew to George Bernard Shaw and former Supreme Court Justice William Brennan, many have remarked that how a society punishes reveals its true character.

The return of Roof’s case to the headlines puts that maxim to a severe test.

It invites Americans to consider whether we want to live in a society that responds to violence, even the most gruesome and horrific kind, with more violence. Do we want to live in a society where justice requires those who administer it to end life? Punishment, especially capital punishment, serves as an example to the rest of society. What example do we want to set?

And does the death penalty really belong in a democratic society? As Benjamin Rush, one of the signatories of the Declaration of Independence, observed, “Capital punishments are the natural offsprings of monarchical governments…. An execution in a republic is like a human sacrifice in a religion.”

Dylann Roof’s life ultimately may be spared by the Biden administration’s moratorium on federal executions or the mass commutations that death penalty opponents hope that Biden will grant.

But whatever Biden does, all of us should remember and learn from the relatives of Roof’s victims who, when offered the chance to speak during his original sentencing hearing, did not ask for his death. Instead, as The Washington Post reported at the time, even as they spoke movingly of their losses and their own anguish, the survivors of his crime “offered him forgiveness and said they were praying for his soul.”

As Wanda Simmons, the granddaughter of one of Roof’s victims said, turning away from anger and refusing to give in to the simple logic of an eye for an eye would prove that “hate won’t win.”

Source: verdict.justia.com, Austin Sarat, September 9, 2021. Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.


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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde

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