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Certain Blood for Uncertain Reasons: Reinstating Capital Punishment in Vermont

by Michael Mello

Seventeen winters ago, a man I loved as a father was murdered. A few days
before Christmas 1989, a racist coward with a grudge mailed a shoebox-
sized bomb to federal appellate Judge Robert S. Vance. The bomb, which
detonated in the kitchen of Judge Vance's home on the outskirts of
Birmingham, Alabama, killed him instantly and almost killed his wife,

When I graduated from law school in 1982, my first job was as Judge
Vance's law clerk. Judge Vance, a genuine hero of the civil rights wars of
1960s Alabama, became much more than a boss to me; he was mentor,
confidante, personal and professional role model. I would have taken a
bullet for him. Today, if I could, I would take the shrapnel for him and
trade my life for his. I think about him two dozen times a day, every day;
I do not have closure about Judge Vance's assassination, and I never
will; I have come to despise the whole pop psychology idea of closure.

I mention this story because it is an awkward time to oppose capital
punishment. Crimes like the unfathomable murder of Teresca King of Rutland
cry out for swift and severe punishment. This is as it should be:
Especially heinous crimes deserve an especially severe response by the
criminal law. Reasonable minds can conclude -- as 38 American states have
concluded -- that capital punishment should exist as an option.

2005 was a year of milestones in the world of capital punishment, in
Vermont, the northeast, and the nation. Vermont, of course, saw its first
capital trial and death sentence in nearly half a century. Elsewhere in
the northeast, the New York legislature voted not to re-enact a capital
statute. In Massachusetts, Governor Mitt Romney introduced a foolproof"
capital punishment bill. The reviews were not good, and the legislature
soundly defeated the measure. The New Jersey legislature voted for a
moratorium on executions.

Across the country, death sentences dropped to record lows, even in Texas,
the buckle of the death belt. Virginia, the state with the second largest
number of executions since 1976, had no executions last year. Kenneth
Boyd in North Carolina became the 1,000th person executed in the U.S.
since executions resumed in 1976.

In 2005 the number of death row exonerations reached 122. Significant
questions were raised last year about whether three people executed in
recent years might have been innocent. The governor of Virginia granted a
rare commutation, because of doubts about guilt. The U.S. Supreme Court
agreed to hear two cases involving death row claims of factual innocence.
The high court also outlawed executing juvenile offenders and tightened
the requirement that capital defendants receive effective assistance of

While the national trend lines are moving in the direction of increased
skepticism about death as a punishment, Vermont appears poised to move in
the opposite direction. The issue of capital punishment has returned to
Vermont. A Burlington federal jury sentenced Donald Fell to death last
July for the murder of Ms. King. Public opinion polls suggest Vermonters
are evenly divided on reinstating the death penalty here. Sometime this or
next week, my friend, Representative Duncan Kilmartin, will introduce a
bill reinstating a capital statute in Vermont.

I respectfully oppose Representative Kilmartin's bill. In candor, I would
oppose any capital punishment restoration bill. My objections to the death
penalty -- the inevitability of mistake and caprice, the fiscal and other
costs, and the corruption of the medical and legal professions -- simply
cannot be cured by tinkering with the legal machinery of death; these
flaws are endemic to capital punishment as a legal system.

Before Vermont decides irrevocably to become America's 39th capital
punishment state, its leaders ought to pause to study and consider the
experiences of its 38 predecessor states. That experience has not been a
happy one.

Take New York. In 1995, following a long political battle, the New York
legislature reinstated capital punishment. Over the next nine years, New
York spent $170 million dollars on the death penalty. That $170 million
yielded seven death sentences and no executions.

The price tag comes to $23 million per death sentence. Any execution
would have been at least 10 years off, had the court not struck down the
capital statute. But in 2004 the New York state courts invalidated the
statute and cleared death row. In 2005 the New York legislature rejected
a bill to fix the statute and reinstate capital punishment.

New York's cost of $23 million per death sentence is more than Vermont
spent to fund the Departments of State's Attorneys and Defender General
for the entire fiscal year of 2004. The Department of State's Attorneys
estimated expenditure in 2004 was $8,600,527, exceeding the appropriated
budget by $326,402. In 2005, the State's Attorney's requested $8,529,177.
The Office of the Defender General's estimated expenditure in 2004 was
$8,242,327, exceeding the appropriated budget by $389,282. In 2005, the
Defender General requested $8,168,639.

The New York experience explodes one capital punishment myth: that
executions cost less than incarceration for life without possibility of
parole. The reason is simple: Lawyers cost more than prison guards.

Or take California, which has had capital punishment for more than 20
years and now has the nation's largest death row (more than 600) but only
12 executions; when, in 1986, the California electorate decided that the
state Supreme Court was too soft on capital punishment, the people tossed
three justices out of office. Or ponder Texas, where death rides an
assembly line.

Or consider Florida, the state that has, perhaps more than any other,
striven (and paid, with millions and millions of tax dollars) to make
capital punishment fair as well as swift, and the state where I worked
full-time as a capital appellate public defender in 1983-1987. For a
while, all executions in Florida were on hold, following the fiery botched
electrocution of Pedro Medina.

Why, you might ask, did not Florida simply replace its three-legged, solid
oak electric chair -- built in 1923 by prison inmates -- with lethal
injections? It wasn't that simple. Lethal injections can, and frequently
are, botched. This is so because the Hippocratic Oath precludes doctors
and other highly trained medical personnel from participating in
executions; and this meant that Florida's medical lobby opposed lethal
injection as a method of execution. In fact, no mechanism of execution is
close to foolproof, because it just isn't easy to devise a way of killing
an otherwise healthy human being that is quick, painless, and not horrible
for the state-selected witnesses to watch.

It turns out that Florida had no easy or simple answer to its problem
about how to carry out executions. The Sunshine State did eventually
switch to lethal injection, but the conundrum illustrates an essential
fact about capital punishment: Nothing about it is as easy or simple as it
first appears. Not even the choice of execution method. And that choice is
only the beginning.

If Florida, which has struggled with capital punishment for 34 years -- and
which has carried out 60 executions and has 388 men and women on death
row -- took nearly 30 years to figure out what method of execution to use,
then what about the really hard question about capital punishment as a
legal system?

Although the central policy issue of whether the state should be in the
business of taking the lives of some of its citizens is settled for this
moment in the republic's history, a plethora of ancillary but critically
important questions of public policy and decency remain unresolved.

~Why does it take an average of almost ten years between the time a
death sentence is handed down and the execution is carried out, even
though rules to expedite capital cases have been in place for some time?
Is it because of a conspiracy of defense lawyers?

~Has the Supreme Court really held that executing an innocent
person does not in and of itself violate the Constitution? (Yes, sort of).

~Why are so many (two in three) death sentences thrown out on

~Why are so many innocent people sentenced to death (122 released
from prison after proving their innocence, at last count)?

~Do people confess to crimes they didn't commit? (Yes: Coerced or
false confessions were involved in one-fifth of the convictions,
nationwide, that were later reversed on account of DNA evidence.)

~Do people plead guilty to crimes they didn't commit? (Yes, again.)

~Why does it cost so much money to operate the legal machinery of
capital punishment?

~Is there any rational way for juries to distinguish which killers
deserve to die from which killers deserve to live?

~Should jurors who oppose capital punishment be excluded from
serving as jurors in capital cases?

~Should procedural technicalities (like filing a brief one day
late) preclude judicial review of the legality of a death sentence?

~Should executions be televised, or, if not, should members of the
victim's family have a right to witness the execution?

~Should the sentencing judge and jury be required to witness the

~Are lethal injections less cruel (and therefore more
constitutional?) than old-fashioned electrocutions, hangings, gassings or
firing squads?

~Should we execute juveniles, the mentally retarded, the floridly
insane, or the less-than floridly crazy? (Until March 2005, the Supreme
Court had held that executing juvenile offenders was okay. Executing the
retarded was okay, until 2002, the insane until 1986.)

~If it is inhumane (and therefore unconstitutional) to execute the
presently insane, then may a condemned prisoner who is insane be forcibly
medicated in order to render him competent enough to be executed in his
lucid interval?

~And apart from the legalities, what are the medical ethics of
restoring insane prisoners to sanity so that the patient" becomes
sufficiently mentally competent to be put to death?

~Does lethal injection degrade the medical profession in a more
intimate way than the use of more traditional methods of state killing,
and in any event what are the professional ethics of participation in
lethal injection by doctors, nurses, medical technicians and members of
the healing professions enjoined by the Hippocratic Oath to give no
deadly medicine" and to abstain from whatever is deleterious and
mischievous," or, as this injunction is commonly understood, First, do no

~Is execution necessarily a worse punishment than life
imprisonment? If you had to choose between death by lethal injection or
life imprisonment in a maximum-security prison, which would you choose?

~What is it like to live, year after year, on death row?

~What impact does administering death row have on prison guards,
wardens and clergy?

~How much judicial time and energy does capital punishment consume
that could be devoted to other kinds of criminal and civil cases?

~Should condemned prisoners be permitted to volunteer" for
execution by waiving their appeals and, if so, should their lawyers fight
to enforce their condemned clients' decisions?

~Now that more than fifty federal offenses are capital, how will
the federal death penalty be applied in places such as Washington, D.C.,
Vermont and Massachusetts, that have rejected capital punishment for state

~How, if at all, ought international law and norms and customs
limit the domestic scope of capital punishment in the United States? Do
the people of Europe and Canada -- as opposed to their governments -- really
oppose capital punishment?

~Who should decide who deserves to die: judges, juries, or, as in
Florida and three other states, a combination?

~Why should capital punishment be limited to killers? Shouldn't
rapists be executed if their crimes are especially brutal? What about
conspirators in terrorism?

~Have courts really held that it is constitutionally okay for a
defense lawyer to sleep through portions of capital trials? (Yup.)

~Should states provide postconviction lawyers for condemned
prisoners beyond the trial and first appeal for the sometimes protracted,
and often bitterly controversial, collateral" postconviction litigation
that can last for more than a decade?

~After spending a long time on death row -- seventeen years, say --
may a condemned prisoner argue that the very delay in his execution was a
form of cruel and unusual punishment?

~What about the politicization of the judiciary that the death
penalty has brought to states like California, Florida, Tennessee, and New

~Why is it that virtually no wealthy people are sentenced to death
or executed?

~Why is it that, in the south, race seems to play such a big role
in deciding who is sentenced to death?

~Why is it that women are so rarely sentenced to death or
executed? Does capital punishment discriminate against men?

~Whatever happened to the once-robust institution of executive

These questions are neither rhetorical nor hypothetical.

These questions, and scores like them, are the real death penalty. The 38
states with capital punishment know this. Enacting a capital punishment
statute is the easy part. The hard part is making capital punishment, as a
legal system, work. That is hard and complicated and frustrating and very

I oppose capital punishment as it exists -- and, as it will continue to
exist, for the foreseeable future regardless of what the politicians tell
you -- as a legal system in America today. America's modern experience with
capital punishment has taught that it is a rigged lottery, skewed by
matters of politics, class, race, geography, and, most important, the
quality of the defense lawyer at trial. The death penalty is not reserved
for the worst murderers; it is reserved for the murderers with the worst
lawyers at trial.

Vermont, of course, thinks it will be different from New York and Florida
and California and Texas and the other states that have tried to craft
capital punishment systems that are fair and swift. The politicians tell
you that only the worst of the worst will be killed by the state; no
innocents will be sent to death row or executed; real defense lawyers will
be provided to people on trial for their lives in Vermont.

But California and Florida and Texas and Pennsylvania and the others all
thought they would be different; at least that's what they thought in the
beginning of their state's experiment with legal homicide.

Experience may have taught them otherwise, but once the legal machinery of
death is fired up, it takes on an inertia and a momentum all its own. Once
a state decides to step into the capital punishment bramble bush, it is
all but impossible to extricate itself. The politics of death create a
ratchet effect. A narrow death penalty statute will be broadened over
time, as more and more categories of crimes and classes of criminals
become death-eligible; careful (and costly and cumbersome) procedures will
give way to calls for speedier and speedier executions.

And as capital punishment as a legal system is deregulated, the
omnipresent risk of erroneous executions will, inevitably, increase.
Innocent people will be -- inevitably -- sentenced to death and executed:
It's as inevitable as the law of averages and the fallibility of an
infinite punishment administered by finite human beings and institutions.

As of the end of 2005, America had executed 1,004 people since executions
resumed in 1977. During that same period, 122 condemned prisoners have
been exonerated. In other words, one death row inmate is released because
of innocence for every eight inmates executed. One in eight.

Reasonable minds can quibble about whether or not this or that particular
death row prisoner was indeed innocent. But the data really do nothing
more than quantify the commonsense notion that our government (meaning the
people who are our government) make mistakes. Anyone who has ever waited
for a letter to arrive in U.S. mail -- or who has had the sublime pleasure
of dealing with the IRS or INS -- knows that the government can make
mistakes, because people can make mistakes. Even when our government is
deciding life or death, it can make mistakes.

Capital punishment is a government operation. It's the IRS with the power
to kill you.

Judge Robert Vance personally loathed the death penalty as racist and
pointless and degrading and deforming of the law he cherished. But as a
federal appellate judge, he often was constrained to uphold death
sentences; when I was his law clerk, the judge and I argued, sometimes
bitterly, about death cases (he always won these arguments; he was, after
all, the judge.) His assassin now lives on Alabama's death row and, when
he is executed, a small part of me will cheer. God forgive me. But
another part of me, that part where Judge Vance still lives, will die

Nothing about capital punishment is easy.

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