(EN) The Death Penalty: “A Hollow Promise”

When I got up this morning at 6:00 a.m. to write this blog that I have had on my mind for the last month, I was pleased that there was a very well-written article by James Wikens in the “San Diego Union”, April 25, 2010 on one of my two topics.

There are two lessons to be learned from the Chelsea King and Amber Dubois tragedy: first, that more laws do not eliminate criminal behavior; and second that the death penalty is indeed being applied in a capricious manner in the United States and is dysfunctional and untenable.

There is a saying among criminal defense attorneys that bad facts make bad law. Here, out of justifiable rage, California legislators are rushing to pass unwise and unjustifiable new legislation to make penalties more severe for sex offenders.

We must ask ourselves several key questions: do we really want to lock up a nineteen year old for life who touches the buttocks of a seventeen year old girl while he is drunk at a party? What about all of the sex offenders, which probably number at least 65%, who are rehabilitated and re-join their families to live good lives– do we really want to remove them from society, forever? And who is going to pay for all this additional incarceration in a state that is already near bankrupt?

To take the reasoning of the “Chelsea's Law” advocates to its logical conclusion, we should lock up every drunk driving offender for life because we shouldn't take a chance that they might re-offend some day and kill someone. Both the premise and conclusion of Chelsea's Law are flawed: certainly not all individuals who commit sexual misconduct are like John Gardner, and second, there are already very strict laws on the book that send the most serious sex offenders to jail for life or a very long period of time.

The Greek philosopher, Sencea, once said that the more corrupt a society becomes, the more laws it passes. By this measure, California has become the paradigm of corruption. Do we really think that if a “Chelsea's Law” had been in place that John Gardner would have reasoned, “well I guess I am not going to kill those two girls because I could go to jail for life,” and that it would have prevented these crimes? The bottom line is there has always been a certain amount of sexual deviancy in every society and people, not bad laws, commit crime.

And now to turn to the article in the “San Diego Union” and the death penalty, I, who have handled four death penalty appeals. must ask myself several questions. First why is a client like mine, Eduardo Vargas, a gentlemen convicted of homicide in a street robbery gone bad and who was very young at the time of his crime and with no felony criminal record given the death penalty, when a multiple killer with a prior record for a serious sex crimes, John Gardner, offered life imprisonment? As an attorney who does death penalty litigation, I know that the public's support, albeit waning , for the death penalty is based on fear and misinformation. As the article in the San Diego Union indicates, a death sentence costs tax payers ten times the money of a life sentence because of increased security costs and all the costs associated with death litigation. A prior military person, who suffered from post-traumatic stress syndrome and heard helicopter noises at the time of his participation in a robbery-homicide, was executed in California, and John Gardner, no —why? The Uni-Bomber in Washington States gets a life sentence in large part due to do the skill and brilliance of my colleague whom I respect greatly, Judy Clarke, and my client, who received a court appointed attorney at trial and whom I was appointed to defend after his sentence was imposed gets death–again, is this fair? Am I missing something?

The California Supreme Court defends such disparate sentences by cloaking their decisions in the legalese that the Court is not required to find inter-case sentencing proportionality…in other words just because one defendant got a break doesn't mean the sentence of the other person is unfair. Why?

It is time to say good-bye to the death penalty. Most politicians are afraid to denounce it, even though they know the truth, for fear they will lose their conservative voter base. And most Justices except for John Paul Stevens, who unfortunately will not be on the United States Supreme Court much longer, are totally out of synch with reality and the evolving standards of fairness of our society.

Justice in the Gardner case?— well, probably, because he will have to spend his life in a place where he cannot harm anyone else in society. I commend the families of Chelsea and Amber for realizing the reality of the death penalty and that Mr. Gardner will pay for his crimes more by having to think about them for the rest of his life from a small jail cell. Justice for anyone who is given a death sentence? Well, maybe this is justice in China, Iran, or Russia, but not in the United States!

After reading my blog, please educate your friends, neighbors, and yourself on these important topics. More laws are not the answer, and the death penalty, in the words of San Diego District Attorney Bonnie Dumanis, is indeed a “hollow promise.”