by Curt Bentley

The State of Arkansas is executing two convicted criminals tonight. One has been executed already. A second will be executed shortly, absent further judicial intervention.

I know nothing of these men. I don’t have any opinion as to their guilt or innocence of the crimes for which they were convicted. Because they were convicted, I will assume they are guilty, though I know that assumption may not be warranted. The matter of capital punishment has been on my mind a great deal over the last week, principally because I started read the book, “Just Mercy,” by Bryan Stevenson, a criminal defense attorney who has spent his career representing men on death row. The book is a great read, and I recommend it heartily.

I oppose the death penalty. This was not always the case. I’m not even certain when I changed my mind. It was a gradual shift; one that took place over years. When I entered law school, I was a strong supporter of the death penalty. When I graduated law school, I was still in favor of the death penalty, though my enthusiasm (that is the wrong word, but I can’t think of the right one at this time) for it had faded. Sometime during my first three years out of law school, I changed my mind.

What changed it?

Part of it was learning that the death penalty lacked any significant deterrent value to criminals who, by and large, are not acting out of a carefully considered, rational appraisal of risks…especially as to those crimes — murder and homicide in connection with some form of sexual assault — for which the sentence of death is imposed.

Part of it was the understanding, based on evidence, that there was a certainty — not a risk, but a certainty — that we have executed, and are continuing to, execute, innocent persons, despite our best efforts at ascertaining truth.

Part of it was the fact that capital punishment does not save society time or money, coupled with my absolute inability to be able to comprehend why people demand that we be allowed to execute someone quickly or cheaply.

Part of it was my growing realization that the imposition of the death penalty was rooted almost exclusively in a desire for vengeance — an understandable desire for vengeance, but vengeance nonetheless.

Part of it was learning that the death penalty is applied very unevenly, and disproportionately is imposed on minorities, the poor, and perpetrators of cross-racial crimes.

Part of it was coming to see that the process of capital sentencing and punishment creates collateral victims — of jury members, attorneys, judges, families put through interminable appeals processes, and the executioners themselves.

In short, there were simply too many arguments against death as criminal punishment for me to support it, even though, in the individual case, I might think it would be justice for a criminal perpetrator to pay with their life.

I don’t pretend to believe that, in certain circumstances, I wouldn’t want the death of someone who had severely victimized myself or my family. If capital punishment could be imposed without error, sometimes, I believe it could even be just. But the risk of error is great, and the punishment, final. The rewards are dubious, at best.

One of the striking stories in Stevenson’s book is his recounting of the first execution he witnessed. He was the attorney for the man to be executed and attended only so that his client would not be alone. He was struck by how the execution affected people he had come to know in his work — the receptionist, the prison guards, the prison wardens themselves. Men and women who ordinarily showed little regard or awareness for the prisoners they watched over felt the gravity of the situation and the incongruity of their actions. This was in contrast to some others, who had no part in the execution, who didn’t witness it, and who were self-congratulatory and even ebullient after the fact.

I do not believe there is a winner when a jailed criminal is executed. Not the victim’s family. Not society.

And in the case of capital punishment of a convicted and imprisoned person, there is no moral hazard in mercy.

In my best moments, I believe in mercy. In my hardest or worst moments, I might struggle to maintain that conviction.  But I would hope that someone would remind and help me to feel merciful, or, if not that, to understand that there is no victory in an already vanquished person’s death.

I hope to see the day when we abandon the practice of capital punishment.


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Curt is an attorney practicing real estate and non-profit law in Utah at his firm Bentley & Briggs. In his spare time, he attempts to impersonate a jazz pianist, blues guitarist, gardens, and dodges rattlesnakes and stirs up other trouble while running or biking on Utah's amazing trails. Feel free to use or re-post content with proper attribution.