February 19, 2007

Disconnected in DC

It is a long way from Washington, D.C., to Baghdad. Over 6200 miles to be exact. But watching the events of the last week, it would be possible to think that the two were ever further apart. On different planets, perhaps.

On Friday, the House of Representatives, after over 45 hours of debate spread over 5 days, passed a measure formally disapproving of President Bush’s plan to send an additional 20,000 combat troops to Iraq. Over the course of the debate, 392 House members took their 5 minutes to passionately defend their positions in front of a largely empty chamber, speaking only into the air that is the C-SPAN viewership. The bill that passed, however, was really only a “nonbinding resolution.” From a policy perspective, this nonbinding resolution has exactly zero effect on the future direction of Iraq other than lobbing some harsh words at the Administration. So much for sticks and stones, eh?

The House’s expression of public outrage may not have been much, but it still bested the performance of the Senate. In a startling display of Congressional impotence, the Senate failed to even get to a debate on the resolution passed by the House thanks to procedural rules. This failure means that, for now, Senators – many of whom are running for president – will not engage in debate, much less put themselves on record, regarding a crucial issue in our nation’s life.

Meanwhile, President Bush seems content to run out the clock on his term so that he will never have to admit a mistake and can pass his fiasco on to the next president.

This entire scene unfolds amid a backdrop of increasing American casualties and downed helicopters and bombs that kill scores of Iraqis even as security forces crack down. The contrast between real lives being lost and symbolic resolutions being debated – or not even debated in the case of the Senate – vividly drives home the disconnect between the powers that be in Washington and the events of the real world. It is no wonder that both congressional and presidential approval ratings are at historic lows – neither Congress nor the President is responding effectively to an immense national problem.

The sad fact is that the decision makers in Washington are not leaders, but politicians. Even as they debate crucial issues, they keep an eye on partisan strategy and the next election. Questions that may be asked when a vote must be cast could be, in this order: Is it good for me? Is it good for my party? Is it good for the country? These are the priorities of politicians. I have no doubt that many start in politics for all the right reasons – to serve the public and improve the country – but years within the Beltway have a tendency to warp perspectives to the point that nonbinding resolutions pass for bold action.

The real power of Congress when it comes to foreign policy – the power of the purse – was explicitly not on the table during last week’s debate and non-debate. Why? Because forcing politicians to take a stand on such a politically-charged issue may put politicians in politically-uncomfortable situations. The result of this reticence, unfortunately, is that American troops and an entire nation of Iraqis are put in truly uncomfortable, even deadly, situations every day.

February 05, 2007

Life and Death

I heard the news only hours after I left the courtroom following a hearing on whether my client, a death row inmate, could obtain DNA testing to corroborate his story of innocence. Tennessee Governor Phil Bredesen had issued a three-month moratorium on executions in Tennessee. I was at once relieved for my client, whose execution is now pushed back indefinitely, and pleased to see Tennessee join the growing number of states grappling to find the most appropriate way to impose the death penalty.

Although Governor Bredesen’s order offers hope for death penalty opponents, it certainly does not end the practice. In the very second sentence of his press conference announcing the moratorium, Bredesen proclaimed himself “a supporter of the death penalty” even as his executive order called into question the procedures for carrying it out. The executive order charges the Commissioner of Corrections with undertaking a comprehensive review of how the state carries out executions. Specifically, the review is to look at the actual administration of the death sentence – the lethal injection procedures and protocol – to ensure that Tennessee’s practice is consistent with moral and legal norms.

The action in Tennessee is part of what seems to be a quickly-expanding nationwide second look at the death penalty. In 1976, the US Supreme Court ruled that the death penalty was not cruel and unusual punishment, but in the last several years, several states have begun to reconsider whether that is the case. Both Florida and California are undergoing reviews of execution procedures similar to that ordered in Tennessee, but several other states have gone even further. In New York, the state’s highest court ruled the death penalty statute unconstitutional. In New Jersey, a commission recently recommended halting the practice, and the governor of Illinois commuted the sentences of all of that state’s death row inmates in 2003.

The driving force behind much of this review is the deeply felt need to get it right with the death penalty. In an age where DNA and other means have been used to exonerate several death row inmates, it is clear that the possibility of executing innocent individuals is very real. Governor Bredesen’s order is essentially an order to make sure Tennessee is getting it right when it comes to the actual administration of the death sentence.

However, there are numerous opportunities to go wrong before an inmate ever reaches the death chamber. Beginning with the collection of evidence at the crime scene, to the prosecution’s discretion to choose which defendants face the death penalty, to the competence of defense attorneys to confront the prosecution’s evidence, to complicated and often vague jury instructions, through post-trial appeals and into the science behind lethal injections, there are countless opportunities for the human beings involved in death penalty practice to make mistakes. And as humans are wont to do, mistakes are made. These mistakes don’t mean that every death row defendant is innocent. They simply mean that no death row inmate was sentenced without the potential for error.

Are there crimes for which the perpetrator deserves to be put to death? Absolutely. However, the death penalty does not serve either deterrence or economic goals. It may provide some comfort to victims’ families, but even that must be diminished when the death occurs a quarter-century after the crime, as is typical. Just because some crimes and criminals deserve a penalty of death does not mean that we, as a society, should overlook the inevitable flaws in our system to impose it.

Governor Bredesen’s impulse for review is laudable, but the review he has ordered does not go far enough. Rather than only focusing on what occurs in the death chamber, the state would be better served by reevaluating death penalty administration from start to finish. In my mind, there is no way to devise a system, administered by human beings, for taking human lives without creating the potential for grave errors. In these matters of life and death, there is no room for error.