The Ballad of Ledell Lee, Or, Why We Should Abolish the Death Penalty

Ledell Lee was executed by the state of Arkansas despite DNA evidence which may have exonerated him. How many inmates might new DNA testing help in proving their innocence? (Photo Credit: Benjamin Krain/The Arkansas Democrat-Gazette via Associated Press)

In today’s political climate, detractors who lean one way or another politically are seemingly always looking for a chance to call out the other side on its hypocrisy. With this in mind, and with all due apology, let me express my frustration as a liberal with those on the right who regard the lives of the unborn as sacrosanct and yet possess no qualms about—for the sake of a few examples—dropping bombs indiscriminately on Muslim-majority countries and killing civilians, refusing refugees from war-torn countries, and expressing support for the continuance of the death penalty as a form of punishment. It is these kind of stances alongside opposition to legal abortions that makes the pro-life movement all but a misnomer. These advocates are not pro-life as much as they are anti-choice or pro-telling-women-what-they-can-and-can’t-do-with-their-own-bodies. Even if you think I’m oversimplifying matters or cherry-picking the examples I want to prove my point, you have to admit—the juxtaposition is a bit weird.

While the questionable use of military force and the plight of refugees and economic migrants across the globe are serious problems in their own right, the death penalty is my specific issue here, with the execution of Ledell Lee in Arkansas part of just the latest turn in America’s history with capital punishment. I’ll get to Lee’s case in a moment, but first let’s talk about the death penalty in the abstract, both here and abroad. According to figures from Amnesty International, well-known for its mission of ending human rights abuses, in 2016, 1,032 executions were carried out worldwide across 23 countries. This may not sound like a lot, but two quick things to consider: 1) as many would have it, one execution is too many, and 2) this number is based only on what is reported and observed. In particular, China is cited not only for its use of the death penalty—it is #1 on the list—but of the notion that the true number of executions carried out by the Chinese government is a state secret; the 1,032 tally provided by Amnesty International does not even begin to include what is presumed to be thousands of executions which occurred there. Also high on the list and accounting for a vast majority of the reported executions were countries you might expect to be among the usual suspects, so to speak: Iran, Iraq, Pakistan, and Saudi Arabia.

The United States of America, interestingly enough, finished outside the top five. Good news, right? Well, if we’re judging by the one-is-too-many standard, then no, that we are still executing people in 2016 and into 2017 is not great news. Consider also that only 23 countries across the globe carried out executions last year—next to 141 countries that are considered abolitionist by law or practice. That puts the U.S. on a short list on the world stage, and regardless of the raw numbers, to join the likes of Iran and North Korea—two countries mentioned by name as sponsors of public executions—it’s not a minority of which you necessarily want to be a part. To be sure, that executions in America in 2016 were the lowest in a quarter of a century is encouraging. Still, it’s 2017, Donald Trump is our President, Jeff Sessions is the Attorney General, conservative judge Neil Gorsuch is now a Supreme Court justice, and anything seems possible. You know, in a bad way.

Another good sign-bad sign type of deal manifests with respect to the number of states that carried out executions alongside the level of support within the American public for the death penalty at large. Per a November 2016 report authored by David Masci for Pew Research, only five states executed inmates last year: Alabama, Florida, Georgia, Missouri, and Texas. Hmm, notice a geographical pattern? Not to be a Debbie Downer about the scarcity of executions outside the South, but this does not consider those inmates who received death sentences or remain on death row. Also, despite only five states carrying out executions in 2016, 31 states still have the death penalty on the books (voters in California, Nebraska, and Oklahoma all rejected ballot provisions that would have banned capital punishment outright or would have restricted it further last year), as does the federal government. This appears to be largely in line with attitudes in the U.S. towards support for the death penalty. Though support for the death penalty is at its lowest point in some four decades, still more Americans (49%) are in favor of the practice than are opposed to it (42%), a reality explained by the disparity in views between Democrats (34%) and Republicans (72%). Another key demographic divide? Race. A majority of whites (57%) favors the death penalty, while only 29% of blacks and 36% of Hispanics favor it. Additionally, a 55% majority of men supports the death penalty, while only 45% of American women are in favor of its use.

In short, trends in use of capital punishment worldwide and support for the death penalty are a mixed bag. OK, so what do we do with this knowledge? Well, I feel that more important than the exact who-supports-what is the why behind those in favor of the death penalty and its use across governments. That is, why do 23 or more countries still insist on death as a viable punishment for certain crimes? It’s no secret that capital punishment has been around for centuries and has been used all over the world. The crimes for which the death penalty has been applied are about as numerous as the ways devised by different cultures for torturing and ending the lives of fellow human beings. Beheading, bludgeoning, boiling, burning, burying alive, crucifying, crushing, disemboweling, dismembering, drowning, falling, flaying, hanging, impaling, shooting, strangling—the list is an exhaustive and gruesome one when you get down to it. As far as contemporary use is concerned, while antiquated forms of execution such as, say, the brazen bull and the guillotine have fallen out of practice, beheading, hanging, lethal injection, and shooting are still viable ways for governments to put one out to pasture, proverbially speaking. In the United States, electrocution and gas inhalation are also among the ways inmates may choose to die, or be executed when lethal injection is unavailable.

But yes, the reasons for exacting the death penalty. Clearly, there are advocates for use of capital punishment, and the primary justifications for its implementation seem to be these:

1. In applicable cases (for certain crimes), the capital punishment is just.

According to judge, jury, and executioner—these views are not mine, as I think you’ve probably gathered. What makes this viewpoint problematic from at least an international perspective is the lack of consensus of certain classes of crimes. Crimes against humanity and murder (given an aggravating factor) have yielded the greatest sense of agreement across borders, but others may seem excessive given the nature of the crime. Depending on the jurisdiction, offenses including adultery, blasphemy, crimes against the state, drug trafficking, espionage, kidnapping, rape, sodomy, terrorism, and treason may also be punishable by death. A number of these crimes reference a moral/religious component, and as such, strike outside observers as contingent on a perhaps unfairly rigid set of beliefs, not to mention clearly eschewing the principle of separation of church and state, and otherwise simply proving too severe given the nature of the offense.

Additionally, some crimes punishable by death, despite being restricted to only one country, evoke questions of the burden of proof. In Saudi Arabia, sorcery and witchcraft may result in one’s being beheaded, despite not formally being defined as punishable offenses. As students of American history, particularly the sordid chapter of the Salem Witch Trials, may have considered, how are these charges to be assessed, at any rate? Can one study them as abstract concepts or does he or she have to knowingly use sorcery or witchcraft to violate these principles? Does circumstantial evidence suffice, or is eyewitness testimony required? These are rhetorical questions, to be sure, but keep the subject of the burden of proof in your mind for now.

2. It’s useful as a tool for police and prosecutors, esp. in plea bargaining.

The threat of the death penalty may indeed be eminently useful for law enforcement and prosecutors in relevant cases, but there are due concerns about how ethical this tactic is, or how effective it even is in reducing the amount of cases that go to trial, which would save money. Threatening defendants in murder cases with execution has been likened to holding a gun to their head, and may potentially coerce people to take a deal even when insisting on their innocence. Moreover, according to a 2006 study by Ilyana Kuziemko out of Princeton University on the effect of reinstatement of the death penalty in New York on plea bargains, while district attorneys were given greater leverage over murder defendants and these defendants were more likely to accept their original charges given the specter of capital punishment, in general, it was not more likely for defendants to accept lesser charges as a function of the law change. In other words, while defendants were more likely to revisit the terms of their arraignment, they were no more likely to accept plea deals with the death penalty on the table. Thus, for more than one reason, the death penalty as a prosecutorial tool appears to be fairly questionable.

3. It deters crime.

Let’s go back to Pew Research’s findings on attitudes toward the death penalty, as referenced above. Citing its own research circa 2015, while only about half of Americans support the death penalty, even fewer (about 40%) believe that it is a deterrent to serious crimes. Wait—if the death penalty doesn’t even accomplish this much, why bother supporting it in the first place? While you mull that over, consider that credible evidence for the notion capital punishment deters violent crime doesn’t exist. Go ahead. Google it. For every study or op-ed that claims to have evidence that the death penalty prevents certain types of crime from being committed, there is a corresponding article or report to show that this is not the case. At the very least, the idea that executions deter crime is suspect. Besides, as one might reason, if one is intent on killing another person, then concern for life—even for one’s own—is probably not of paramount concern.

4. It assures that convicted criminals do not offend again.

The concern here—to use a fancy term—is recidivism, or parolees becoming repeat offenders. Not only is it unlikely for the majority of murderers to commit the same offense, though, but with the death penalty already a mixed bag when it comes to being a tool for district attorneys to facilitate plea bargains as well as deterring crime, the only way to predictably avoid the possibility of recidivism via capital punishment is to, well, kill all inmates convicted of killing, and that can’t and won’t happen. A much more viable alternative is sentencing those convicted to life without parole.

If the case for the death penalty, based on the above four principles, seems tenuous as best, when considering the numerous reasons inherent in the case against this institution, justifying what is tantamount to state-sponsored murder becomes that much more difficult. The ACLU, like Amnesty International, is staunchly opposed to the use of capital punishment in the United States, and has outlined why the death penalty should be abolished better and more completely than I could ever hope to. The points as to why the death penalty is not effective as a means of better serving the public interest, according to the ACLU, include the following:

  • The death penalty is disproportionately levied against people of color and the poor, an effect exacerbated by the inability of disadvantaged defendants to afford sufficiently skilled legal representation, as well as implicit bias of the justice system toward defendants based on where they live/where the crime is committed.
  • According to views expressed by law enforcement professionals and research done on frequency of homicides across states, the death penalty does not deter individuals from committing violent crimes, and states that have the death penalty on the books actually tend to have higher murder rates. Factors which are better predictors of crime reduction include more police officers, programs to combat drug abuse, and better economic conditions leading to more jobs. In other words, it helps when we treat people like human beings as opposed to the sum of their bad behavior. Just a smidge.
  • Related to the last point, the death penalty is a waste of taxpayers’ money if it doesn’t prevent murders or help reduce their rate of occurrence. As if the cost of human life weren’t enough.
  • Innocent people may be killed to satisfy a death sentence, and because this isn’t Game of Thrones, that’s, ahem, a one-way street. Per the ACLU, in close to 45 years, over 140 people who were condemned to death have been exonerated as a result of new evidence, notably DNA evidence. Moreover, for every 10 people executed, one person is exonerated. In matters of life and death, you’d like a better rate of success than that, and again, these are the happy endings we’re talking about here. Particularly when prosecutors aggressively pursue a conviction and the death penalty, errors and omissions may be made, and the finality of death makes for a burdensome realization for all parties involved if the defendant’s innocence is proven at a later date.

As a liberal, I’m unquestionably biased as to what I think are the most compelling reasons for or against the death penalty, but even if considerations of right and wrong do not sway you, the notion that capital punishment is costly and ineffective should give one pause. If the morality behind the abstract concept does, in fact, move you, then the aforementioned story of Ledell Lee, with the primer on the death penalty fresh in your mind, should indeed provoke a reaction within you. Who was Ledell Lee, in the context of the ongoing debate on the death penalty? Lee was convicted in 1995 of the murder of Debra Reese after the latter was found dead in her home in Jacksonville, Arkansas, strangled and beaten with a baseball bat. Ledell was spotted by several witnesses around the area of the crime scene, but beyond this, not too much in the way of verifiable forensic evidence seems to tie him to the crime itself.

Per a report by Erika Ferrando and Michael Buckner for THV 11, a local CBS affiliate based in Little Rock, AR, Lee maintained his innocence up until his execution, and there are elements of both the case against him for Reese’s murder and other cases which are potential red flags that raise the mere possibility the defendant did not get a fair shake from the Arkansas criminal justice system. In one of his trials (Lee was also charged and convicted for the rape of two Jacksonville women following his being charged for Debra Reese’s murder, and was tried for the murder and rape of a woman named Christine Lewis), Ledell Lee had to be assigned a second lawyer after his first legal representative appeared to be noticeably intoxicated throughout the proceedings. As the execution date neared, and the ACLU became involved, they found that new post-conviction DNA testing may prove that Lee was not responsible for the murder of Debra Reese, and also brought up the potentially relevant fact that Lee suffered from an intellectual disability stemming from fetal alcohol syndrome, a condition evidently never raised or considered by his lawyers heretofore. If nothing else, the testing would be able to prove that Ledell Lee was unquestionably the murderer. After all, if the state’s case was as solid as it claimed, there should be no worry that the DNA evidence should prove anything to the contrary.

But Pulaski County Circuit Court judge Herbert Wright denied the request, insisting that even if the DNA testing on blood and hair samples could be found to not tie Lee to the murder, the state still had enough of a case to convict him. Wait—what? The Innocence Project, an organization specifically devoted to exonerating the wrongly convicted through DNA testing, at this point became involved, and appealed to the Arkansas Supreme Court to stay Lee’s execution and allow the new DNA testing to occur. The appeals brought the question of the stay all the way up to the Supreme Court. And along ideological lines, the high court voted 5-4 to allow the execution of Ledell Lee to move forward, with—you guessed it—newly-minted Justice Neil Gorsuch casting the deciding vote. Quite a first vote to establish your legacy as part of the Supreme Court—paving the way for a man’s death despite a questionable lack of evidence.

What makes this all especially egregious on the part of Arkansas and governor Asa Hutchinson is that Ledell Lee’s execution is just one of eight originally planned as part of accelerated execution schedule designed by the state to make use of its supply of the drug midazolam before it expires at the end of the month. That’s right—can’t let this stuff go to waste, so we might as well cram as many executions as we can in. Strap ’em in, boys—we may have to schedule them two at a time! If this seems like a hollow reason as any to rush inmates through death row, it’s only because it is, and the state of Arkansas is apparently unfazed by the act of essentially herding in human beings like cattle to be slaughtered. Reportedly, the state may even have purchased vecuronium bromide, the second of three drugs to be used in its administration of lethal injections, under false pretenses from McKesson Medical-Surgical. It all adds up to what can be characterized, at best, as a case of bad optics for the state of Arkansas, and more probably, deliberate refusal to grant a stay for fear it may have to admit potential wrongdoing on multiple levels. Either way, Hutchinson and Co. should be ashamed of themselves—plain and simple.

“Do you know who I am, son? I’m Asa Hutchinson, governor of Arkansas, and if you don’t watch your sass, you just might be next to be executed!” (Photo Credit: Gary Cameron/Reuters)

I’d like to close with returning to Pew Research’s surveys into the attitudes of Americans on the death penalty and questions of its morality, fairness, and effectiveness. On the last two dimensions, the percentage difference between those who favor the use of the death penalty and those who do not hover somewhere between twenty and thirty percent, encompassing meditations on whether there is risk of innocent people being put to death, that it doesn’t deter crime, and that minorities are disproportionately sentenced to die. Those disparities are about what you’d expect. The greatest divide, meanwhile, was recorded on whether or not the death penalty is morally justified. 90% of those who support it agreed, while only 26% of those who oppose it agreed. That’s a veritable Grand Canyon between the two sides, and it makes me wonder just how long it will take for reform in jurisdictions where use of capital punishment and support for the death penalty is most entrenched. Talk about your cultural divides. Plus, while support for the use of the death penalty steadily declines, a rash of executions in Arkansas and tough talk from the likes of #45 and Jeff “Hawaii Is a Dumb Little Island in the Pacific” Sessions makes me worried that positive momentum built up toward making our criminal justice system, well, more just will not merely be stunted, but possibly even reversed.

Whatever your political ideologies or moral/religious convictions, there is ample justification for why the death penalty should be abolished in every state in the country, and efforts should be continued to change policy on an international front. I get it—an eye for an eye, a tooth for a tooth, why not a life for a life?—but this is 2017. Not only are executions inefficient and ineffective, but—and not merely to be insensitive about matters such as these—but they don’t bring murder victims back, and if one or more life sentences for the convicted individual(s) does not provide sufficient relief or solace for the families of the victims, I don’t know that putting someone else to death will do it that much better or will give them a far superior sense of justice. Maybe I’d feel a lot different if I were in these relatives’ shoes—and I solemnly hope I never have to bear their sense of loss—but at present, I find this to be an example of “two wrongs don’t make a right.” Simply put, I’m against the death penalty no matter the circumstances, and I feel the sooner we move to an execution-free America, the better we’ll be as a nation for it.

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