Crime and Punishment
- By Bruce McKinney
In a black and white life truth was gray.
By Bruce McKinney
Fyoder Dostoevsky had it right. Crime and punishment are inextricably linked. These links are not entirely mechanical
however. They are also emotional and as emotions change so do punishments. The mechanics call for an "eye for an eye"
while pragmatists look to understand. To the person who says "He's a murderer. There's nothing to understand" the
pragmatist asks "Why did he kill" and "Is the responsibility his alone?" Perhaps the question is "Are we more than the sum
of our crimes?"
Recently the mechanics executed Stanley Tookie Williams at San Quentin in northern California. Some pragmatists objected.
In the weeks leading up to the scheduled execution there was a showing at the Victoria in San Francisco of a movie about
Mr. Williams' life, "Redemption" starring Jamie Fox. The theatre was sold out and Danny Glover spoke hopefully of the
upcoming clemency hearing with Governor Schwarzenegger. Ten days later Mr. Williams was dead. He outlived predictions
but only by 15 minutes and this only because the "nurse" couldn't quickly enough find a vein for the court mandated poison.
"An eye for an eye" is dumb policy. It assumes the individual is entirely and exclusively responsible and that background,
neighborhood, family, timing and luck are not integral aspects. It also tries hard to ignore differences in intelligence.
If these aren't important factors we need to get the news out because almost everyone in America treats them as important,
even essential. Families that can are always moving out of problem neighborhoods. Many believe where we live will affect
who we are, what we become and what we do. Every human being on the planet knows these factors are as much a part of us as
our DNA. In court the standards are more black and white and the grays come into play only when competent defenses
introduce and judges allow them.
Prejudice has been around for a while and one of the easiest ways to act on prejudice is to impose inflexible standards on
those we don't like. People who speak non-native English and others of color often fit the bill. We do this by
separating the crime from circumstances, background and color. We provide everyone with a "fair" trial but assume each
defendant has sufficient capability and money to engage appropriate defense even when we know this is not the case. In
fact in the United States it is expensive to mount a good defense so poor people have the least access to it.
The first trial is crucial because all subsequent judicial processes are simply reviews. Highly material errors are the
requirement to overturn and courts reluctant to overrule. And new information is rarely accepted. Repeated allegations
that prosecutors withhold information suggest a truly adversarial relationship between prosecutor and defense. Somewhere
in this justice becomes an innocent bystander to over-reaching on both sides. That prosecutors do not always feel an
obligation to both sides is shameful. Nancy Grace, a former prosecutor whose lair today is CNN, is the poster child of
aggressive prosecutorial tactics and prima facie evidence of the failure of today's judicial system. Where the goal is
truth viciousness can not reside.
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Crime and Punishment
- By Bruce McKinney
America favors death rather than redemption.
Of course prosecutors understand strength when they see it and are more likely to plea bargain with well represented
defendants. Again, the poorly defended lose out because it isn't just facts that determine. It's also technique, power
and connection, the everyday currency of the best lawyers. Prosecutors are not mindless and neither are they for the most
part unfair. They are reasonable human beings but work within a system they do not control and it is their job to get
convictions. So they shop for favorable judges, suppress evidence, and seek to exclude minorities from juries all to get
high success rates. And sometimes innocent people are convicted. The fall back argument becomes "a few innocent people
may suffer and that is unfortunate but..." The Innocence Project today works to free victims unjustly convicted in the
United States and has secured the release of 168 victims of over-zealous prosecution. To those at the mercy of this
justice system Germany of the 1930s has some elements in common. There the target was Jews. In America it is minorities
and the poor.
So pity the poorly defended because overwhelmingly they are the ones who go to death row, the victim of a prosecutor or
judge whose local power has become absolute and whose judgment is defective. This is not how the American judicial system
was intended by its framers to work.
One does not have to look far to see some of the sources of problems. For every 100,000 white men in America 463 are in
jail today. For Hispanics the comparable number is 1,220 and for Blacks 3,218. In America white people have an average
income of $42,500 while Hispanics and Blacks earn $30,700 and $27,900 respectively. One in 142 American residents is in
jail today. It is also true that the states that rank lowest in investment in education rank highest by percentage of
murders. Conversely, the states who ranked highest for investments in education tend to rank lowest for capital cases.
States in yellow do not have a death penalty. We seem to have a choice.
| | Population | Serious Crime | Murder | Investment in
Education |
| | Rank | Rank |
Rank | by state in 1998 | |
Louisiana | 22 | 7 |
1 | 44 | | Mississippi | 31 | 27 |
2 | 40 |
| Maryland | 19 |
3 | 3 |
25 |
| Georgia | 10 |
16 | 4 | 29 |
| New Mexico | 36 |
4 | 5 | 14 |
| Alabama | 23 |
20 | 6 | 39 |
| Tennessee | 16 |
5 | 7 | 49 |
| Illinois | 5 |
8 | 8 | 30 |
| Arizona |
20 | 14 | 9 | 47 |
| N. Carolina | 11 |
18 | 10 |
35 |
.............................................................................................................
| | Population | Serious Crime | Murder |
Investment in Education |
| | Rank | Rank |
Rank | by state in 1998 | |
MA | 13 |
21 | 41 |
32 |
| Utah |
34 |
41 |
42 |
12 |
|
Montana | 44 | 44 | 43 | 22 |
|
N. Hampshire | 41 | 46 | 44 | 38 |
|
Iowa | 30 | 40 | 45 | 10 |
|
Vermont | 49 | 48 | 46 | 7 |
|
Idaho | 39 | 42 | 47
| 36 |
|
Maine | 40 | 49 | 48
| 26 |
|
South Dakota | 46 | 47 | 49 | 45 |
|
N. Dakota | 47 | 50 | 50 | 16 |
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Crime and Punishment
- By Bruce McKinney
Had Mr. Williams lived he would undoubtedly have written more books.
Was Stanley Tookie Williams guilty? I have no idea. Is the system fair to all citizens? No. Was this a basis for
Governor Schwarzenegger to commute Mr. Williams' term to life in prison? Absolutely. It would be nice if comic book
characters really had great courage. To those of us who read the adage that "truth is stranger than fiction" may be close
to the mark. It's interesting to note that the Governor's native country Austria does not employ the death penalty and if
he governed there he could not have confirmed a death sentence. Mr. Schwarzenegger is after all only a politician. We
needed a statesman.
Running keyword searches in the AED I found the terms, death, murder, hanging, execution and McDade [reference to
capital cases before 1900] that offer few conclusive observations. The 19th century appears to have been more violent than
earlier centuries and war periods the most violent. Lincoln is well known for commuting the sentences of many condemned.
He clearly considered history and circumstance. Were he a judge in America today in most states his hands would be tied.
We remember his courage and intelligence but today we would limit his power to exercise judgment.
Lest it go unnoted Tookie Williams is probably a unique figure in American letters. Before he went to prison the only
thing he may have written were bad checks. In prison, in time, he became a different man, an author of nine books about his
experiences and perspective with his co-author and editor Barbara Becnel. He was five times nominated for the Nobel Peace
Prize.
For anyone who wonders if serious crime is a recent phenomena I ran keyword searches in the AED by various periods
and found, as it says in Ecclesiates "there is nothing new under the sun."
| |
Death | Murder | Hanging | Execution | McDade |
| 1493 to 1600: | 350 | 12 | 10 | 62 | 0 |
| 1601 to 1700: | 1307 | 86 | 11 | 190 | 0
| | 1701 to 1725: | 772 | 63 | 6 | 76 | 10 |
| 1726 to 1750: | 701 |
49 | 9 | 71 | 1 |
| 1751 to 1775: | 972 | 161 | 10 | 202 | 1 |
| 1776 to 1790: | 527 | 73 | 21 | 117 | 3
| | 1791 to 1800: | 1314 | 138 | 17 | 148 | 5 |
| 1801 to 1810: | 422 | 131 | 17 | 61 | 3
| | 1811 to 1820: | 469 | 198 | 4 | 70 | 5 |
| 1821 to 1830: | 403 | 316 | 10 | 63 | 9 |
| 1831 to 1840: | 346 | 164 | 15 | 104 | 19 |
| 1841 to 1850: | 627 | 249 | 12 | 67 | 20 |
| 1851 to 1860: | 611 | 199 | 28 | 150 | 15 |
| 1861 to 1870: | 905 | 220 | 30 | 143 | 11 |
| 1871 to 1880: | 260 | 116 | 62 | 61 | 17 |
| 1881 to 1890: | 305 | 79 | 42 | 68 | 3 |
| 1891 to 1900: | 359 | 69 | 38 | 20 | 6 |
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