Talk About Big Brother

Frequently conservatives in the political "blog-o-sphere" caterwaul "government cannot be trusted".

In a recent post, my friend Mitch Berg suggests the government "should not be trusted with a cardboard knife." Government supplies police, fire, roads, military, coastal protection, schools, food, medical service and drug oversight, and an enormous host of other absolutely necessary services. These are services Mr. Berg and other Americans gratefully rely on daily.

The comment implies people employed within government are somehow not “ordinary Americans”, and the average, ordinary, every day “Joe”, who may be a sailor or a cop, is somehow vastly different; they should not be trusted with a cardboard knife. The forget or ignore our government is “of the people”, including its rank and file workers.

States and municipalities prove why governing isn't "simple", or driven by "common sense", as conservatives envision it. Laws drafted by those with single-issue agendas are dangerous laws. Perhaps such laws are simply falling to "The Law of Unintended Consequences", but that hardly makes it acceptable. Contempt for governance is an inadequate substitute for good governance. It is self-evident, crafting a law which doesn’t dramatically and negatively impact society is a requirement to be a "good" law. Knowing how to craft laws which avoid such outcomes should be a requirement for anyone seeking office.

It is precisely this contempt, this visceral disregard for the idea of a government shaped by understanding and appreciation of the potential negative impact (especially on the minority), that we get these horrible outcomes. Contempt drives the ideas making law is “easy”, and that those who think otherwise are naïve’. Contempt brings about these poor laws, rather than simple unintended consequence. Thinking government is always wrong has had serious and profoundly negative consequences on our society. Teaching contempt for government ultimately harms our ability to govern rationally, as knee-jerk reactions to any situation impedes reasoned consideration of perfectly appropriate, functional laws and services.

An example of this is Texas. In Texas, the death penalty is more frequently used than in any other state, by a factor of 4 times more often than the next closest state, Virginia. There have been 450 executions in Texas since 1976, 105 in Virginia. Now, Texas IS three times larger than Virginia (almost), so that explains some of it, but Texas' attitude and conduct of Capital cases is distinct and unique. Between those two states, they have put to death almost half of all of those executed since Capital Punishment was reinstated, with Texas making up the lion’s share of executions. In its desire to exact vengeance rather than justice, Texas stands virtually alone in using Capital Punishment contrasted with ‘average America’ as represented by the other 48 states. The interest in the state in fairness or due process seems a distant second to other interests, and as the following illustrates. It can be argued that innocence is not as desirable as conviction. Whether the convicted is the guilty party is a distant and secondary consideration.

Texas has a thirty day limit on the submission of exculpatory evidence after the date of conviction. Any evidence which shows the defendant was innocent, such as finding photos, fingerprints, DNA evidence or other proof of the innocence of the convicted, if it is found 31 days after the announcement of the verdict, it just doesn't matter, the defendant stays on death row.

I understand that Districts Attorney don’t want to release a convicted person. I understand they want to be darned sure the evidence they’ve convicted someone wrongly is factually correct, but that’s not the same thing.

This law bars the submission of any evidence, strong or weak, proper or questionable. It effectively prevents the kind of action taken in Illinois, it prevents freeing someone wrongly convicted, by preventing any evidence from being considered. The Supreme Court has upheld the right of Texas to implement this law. Appeals on evidentiary grounds, the most meaningful kind of appeals, are prevented. The zeal of the ‘too liberal court’ crowd to unlimited appeals, has, without question, sometimes gone too far. The contempt for appellants, the length of time it takes to execute someone, and the cost has in reaction caused the enactment of law which will lead to the death of innocent people. Think not? Read below about Illinois. As you consider, read these articles on the subject:

Cornell Law Review Editor's Article:

Execution of the innocent?

Clearly, from the second article, there is a question about whether the state may have executed innocent people. There are even greater questions about whether the Governor is willing to admit it, or would prefer to cover it up.

In Texas, in Capital cases, public defenders representing the VAST majority of capital case defendants get a minimal fee, around $250, to cover all their legal and research expenses. That’s not much, and to defend someone's life it is not adequate. In contrast, the state often spends hundreds of thousands of dollars on researching, taking depositions, bringing in forensics experts, and other activities to prosecute the accused. This inequity in the state of Texas is not describable as the “benevolent application of law.”

As a further example of the zeal for “justice” in Texas, I offer one more point.

A few years ago, a convict was released on a rape charge after DNA evidence during an appeal proved the convict was not the person who left semen on the victim. That DNA belonged to another person, a prior sex offender; that other person was ultimately charged.

There were two injustices in this instance. One, an innocent man was jailed; the other, more important in some respects, the guilty man was free. He stood little risk of ever being charged without the work and diligence of the defense counsel during the appeal.

What was the reaction of the District Attorney in this case? Did he apologize? Did he seek to confirm whether OTHER DNA test kits might show he should be looking for someone else?

No! He ordered the destruction of ALL rape test kits, to prevent any other appeal from being successful. He ordered the destruction of any evidence which might have proven the innocence of someone, and that the accused was still free. He ordered the destruction of any evidence that would affect his conviction rate.

His interest was not justice. He cared about preserving his reputation as DA, and the conviction record of his office. This was not swift justice, this was not the “common sense” application of the wisdom of “plain folk”.

This was a calculated intervention by the state, preventing innocent people from rightfully proving their innocence. Given the reliance by law enforcement on DNA, there was little validity to the DA’s claim at the time that the destroyed DNA evidence was “questionable.”

While one could look at this case as proof that government should not be trusted, I would argue instead that it is more proof that those who distrust the government and the legal process are untrustworthy. This DA did not trust the appeal process. He refused to allow the system to work properly, a system which had been designed to preserve such evidence both for the benefit of the state AND the defendant.

Now, ultimately the Governor of Texas in these capital cases could stay the execution, either commuting the sentence or pardoning the defendant. It's certainly not an assured outcome, and as a remedy to abuses, it is at best cold comfort. Anecdote and example do not support the premise of a lenient Governor intervening.

Consider the callousness of George Bush when asked by Larry King what Karla Faye Tucker's last words were, to then Governor Bush prior to her execution in Texas. Bush's vulgar and disgusting reply was to feign he was crying, rubbing his eyes with a smirk on his face as he sniggered, "Please don't kill me."

This is a man who claims to be a born again Christian. He LAUGHED at holding this woman’s fate in his hands. He mocked her death.

I make no excuse for Ms. Tucker. She was convicted of participating in the double murder with an axe of two innocent people. Fifteen years later she claimed she was also born again, that she had truly repented her sins and crimes. I do not believe such repentance is reason to halt an execution, but I’m not someone who claims to take instruction directly from God, nor embraces repentance in the same light as born-again Christians like Bush claim.

Finding humor in the execution of a person is disgusting, whatever your religion or lack of it. It belies an attitude of sneering, unrelenting contempt towards human beings. Consequently, there is NO assurance a Governor with that contempt and callousness will be impartial and fair when dealing with defendants.

In Texas once 31 days go by, there is no right of appeal, zero, under state law, and too little likelihood of such a conviction being commuted, even in the face of demonstrably provable cases of error. It's absurd.

The issue with Texas is simply what is done with the situations where the court erred? In many states there seems to be a similar contempt for due process and appeals, and toward the defendants. In what is a cruel irony, these states are also those which employ the death penalty more than most. It is primarily in southern states where 955 of the 1196 executions since 1976 have taken place. Do we support justice which is so dramtically different from one region to another in this country? Can we even call that justice?

In contrast, Illinois is different. In Illinois, after research by University of Chicago grad students found that 13 of 25 death-row convicts were NOT the perpetrators, the Republican Governor commuted EVERY death sentence and forbade any further use of the death penalty until such time as a more accurate convictions could be assured. This prohibition has not been lifted; it was instituted in 2003. An aside, this Governor was later accused and convicted of corruption, and sent to prison. In what would have been real irony, had he been contemptuous of the convicted, he would then have been contemptuous of himself, an irony not lost on me when examining Mr. Bush's sneering mockery.


The ultimate point here is, when considering the experience of Illinois, clearly these cases are not simple. Rights of appeal ARE relevant, and sometimes complex. None of us care to see a guilty man or woman set free. We find appeals by incompetent counsel difficult to stomach. However, if in our rush to "justice" we deny people's basic rights, our interest in 'simple' government becomes an anathema. It becomes nothing less than a gross violation of what we believe is intrinsically American. We believe as Americans in protecting the rights of the individuals from abuse by the state. Ironically, it is those small-government talking heads which bluster about believing exactly this, but which are ready and willing to enact the kind of travesty which characterizes the Texas Capital case penal system.

Equally compelling is the fundamental hypocrisy of it all. This deep and abiding hypocrisy occurs when those who advocate for a smaller government are the very same people who enact laws like the limits on counsel and appeal, precisely because of their contempt for government. Because of that contempt, they enact far more onerous laws than anything they complain about.

Whether those laws are onerous because of ignorance or unintended consequence is hardly material, because when confronted, they don’t look to change until the press or public become so indignant change is demanded. In short, they DESIRE such laws – and whether they desire such laws because they despise good governance, or because they reflexively write off someone accused of a crime, or both, I leave to you, the reader, to decide.

Either way, it seems clear that writing law in such a state of mind leads to the worst things in government, not the best. It is important we teach our kids about the proper use and limits of government, but also that government CAN be used for the greater good. We need to teach our children it is often quite capable and that when it is not, we can and should carefully change it.

The government isn’t some monolithic beast. It is made up of ordinary people. It is made up of you and me. So long as we hold our legislators to certain standards, such as being respectful of civic duties, grounded in how to govern well, then we will not so often fear them. We must embrace and teach that good and proper government includes respecting the rights of the unpopular. That many, in fact most laws are crafted carefully, not stupidily, out of a desire to protect EXACTLY those rights – the rights of the individual – rather than as some would claim, to usurp them.

To be continued…