In the wake of the controversial execution of convicted murderer Clayton Lockett in Oklahoma last month, people are taking a fresh look at how we apply the death penalty in our society. Some people believe it is uncivilized in any form, and I won't delve into that moral debate.
But for those of us who believe the death penalty has a place in a civil society yet are troubled by the prospect of putting an innocent person to death, I offer a possible solution. It's not perfect, and it certainly won't be to everyone's liking. But it's a notion and point of view that I hope will spur further debate on the subject.
As we all know, the main argument against capital punishment is that false convictions can happen whenever a single jury has to judge the facts of a case. Eyewitness testimony can be wrong; overzealous prosecutors can withhold exculpatory evidence; circumstantial evidence can be misconstrued; racial bias can affect outcome. We will never take the potential for a false conviction down to zero in all jury trials.
But what we can do is re-define who should receive a death sentence to only included those repeat offenders that are convicted in two separate trials for two different murders committed at different times and places.
That would mean that committing one murder – no matter how heinous – would not be enough to warrant the death penalty, because one set of facts can be erroneously interpreted, even under appellate review.
Under this radically new concept, someone who commits mass murder at a single event would not face a death sentence. So even a monster like Timothy McVeigh, who killed 168 people with one explosion, would not be given the death penalty.
However, repeat murderers and serial killers who are convicted of murders at two separate crime scenes by two different juries could be executed.
Think of it as the capital offense version of a two strikes law.
It's not a perfect solution if your rationale for the death penalty is an eye for an eye. Applying this rule, the killer of Nicole Brown and Ronald Goldman (had someone been convicted of that crime) would not be given a death sentence, since those two killings happened at a single crime scene. (Note that I did not specify the killer, since no one was ever found guilty of that murder in a criminal trial.) No matter how much we might believe with all our heart that such a defendant is guilty, there would still be an element of factual doubt.
But Charles Manson and his band of sadistic followers could be given the death sentence once convicted, as they killed five people one night and two more people the next night. The first killing would only have subjected them to five life sentences. The second guilty verdict in a second trial would escalate them to death row.
I know this runs counter to the "one life for another" philosophy behind our current death penalty laws, and my approach would mean radically revamping our concept of who deserves capital punishment. Many people will think this approach is too restrictive and denies justice to the victims of, for lack of a better term, conventional murders.
But in raising the bar for who can be put to death by the state to repeat killers, we would be taking a huge step toward insuring that one bad jury decision or one abusive prosecutor could not put a wrongly convicted man on death row.
I'd also recommend additional safeguards. Physical evidence in capital cases should have to go through rigorous DNA testing. And controls for racial bias and prosecutor malfeasance should also be improved.
Of course, there would still be controversies to iron out. Would the Boston Marathon bombings count as one crime or two? What about Adam Lanza killing his mother on his way to the Sandy Hook massacre? And what if one person pulls the trigger at one murder, but another one pulls the trigger at a second crime scene? I have my own ideas for how to resolve those issues, but it isn't my intention to get into the weeds here.
If adopted, I believe that such a system, with rigorous controls and the higher threshold of multiple convictions, would reduce the likelihood of an innocent person being put to death down to infinitesimal odds.
As I noted, it still would not be a perfect system. But it would be a step in the right direction.
Even in a good society, decent people can disagree with the moral and ethical dimensions of capital punishment, which will always be a thorny topic. But maybe over time we as a society can craft a death penalty law that everyone can live with, so to speak.