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South Dakota is set to execute only its second inmate in the last half century. Tonight, the state will put Eric Robert to death by lethal injection. Robert was serving a prison term for kidnapping when he killed a prison guard during a failed prison escape.

Robert's case is a tough one for people like myself. When you're a staunch enemy of the death penalty, it's easy to argue certain strong and emotional points. You argue from the position of the innocent. That is, if we put people to death, we will inevitably kill some innocent people. We also argue that the death penalty does not deter anything. Instead, it is institutionalized revenge. We argue economics, noting that the death penalty is a significant cost burden even when compared to life imprisonment.

Eric Robert's case challenges all of those things. Most importantly, it makes clear why all of the "easy" arguments against the death penalty need to cower in the face of the more important and more difficult arguments.  

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The easiest way to argue against the death penalty is by pointing out the statistical certainty of innocent life-taking with a widespread death penalty. Supreme Court justice William Brennan said in 1994:

Perhaps the bleakest fact of all is that the death penalty is imposed not only in a freakish and discriminatory manner, but also in some cases upon defendants who are actually innocent.
A total of 69 people were released from death row on the basis of proven innocence between 1973 and 1997. Experts estimate the roughly six to eight percent of the people on death row are actually innocent. For every 1,000 people we put to death, between 60 and 80 are innocent. This fact is sobering on its own.

But Eric Robert was not innocent. He admits to striking a prison guard in the head and covering that guard's mouth with plastic wrap.

We also like to argue from an economic angle. It can cost more than $1 million to prosecute a death penalty murder case when all of the appeals and writs are finished on the state and federal level. As a society, we spend a tremendous amount of money that might otherwise be put into education or social programs.

But Eric Robert's death penalty case will not be expensive. His guilty plea was entered last April and he never appealed. In fact, he wanted to waive the mandatory state review of death sentences that the state has put in place. When compared to other death penalty cases - where inmates can spend decades working on appeals and innocence efforts - Robert's case will cost very little.

Perhaps the best policy arguments come on the basis of deterrence. Reports consistently show that the death penalty is not a successful or sufficient general deterrent to crime. We know what the numbers suggest and they are almost always in our favor.

But Eric Robert claims clearly that he will kill again. He lacks the empathy or remorse that even the most hardened criminals usually have. Amber Hunt's Associated Press report notes:

Months later, Robert told a judge that his only regret was that he hadn't killed more guards.
So how do we deal with this kind of case? And why should we? One of my professors is a nationally respected and internationally cited authority on the death penalty. Professor David Dow - who teaches at both the University of Houston Law Center and Rice University - has represented more than 100 death row inmates. He has written numerous books and articles on the subject. He even started the Texas Innocence Network, a post-conviction indigent defense initiative aimed at freeing those people who legitimate claims of actual innocence. I have been lucky enough to study under Dow and work with his the TIN. Professor Dow regularly argues that these are exactly the cases a death penalty enemy should fight. When you argue only from a place of innocence, he notes, you are forced to seek refuge in the shadowy corners when guilty people are put to death.

Dow and others have argued that the death penalty is even wrong in those cases. And he's right, but it's a far trickier argument to make. The economic argument is enough to stir even the hardest heart in an age of shrinking state budgets and rising fiscal strife. The argument from innocence will shake the shakable because, believe it or not, many of the formerly pro-death penalty do have hearts. The deterrence argument even has friends within the criminalization community. But where do we turn when those argumental friends are taken out of our collective warchest?

In a recent video spot promoting his latest book (The Autobiography of an Execution), Dow asks viewers to engage in a thought experiment. He asks them to think about the people they love and cherish the most. He then asks the viewer to picture some person hurting their loved one. "Hold on to that image," he implores. He admits that he understands the desire to kill that person. It's a natural, human inclination. Then he turns the experiment somewhere extraordinary. He asks the viewer to think about the same loved one and imagine them committing an unthinkably violent murder on someone else. Now, the tables are turned. Now, few people would think that their loved one "deserves" to be killed.

The arguments stretch further and can head more esoteric and much more philosophical. Dow argues that some basic assumptions must be challenged to undermine the death penalty. The machinery of death, as Supreme Court justice Harry Blackmun called it, often gets it wrong in America. In order to believe in the death penalty, you have to make what I would call naive assumptions about the infallibility of justice. New York Times journalist Dahlia Lithwick wrote this in a review of Dow's book:

Cops fudge the truth. They coerce false testimony. Court-appointed lawyers sleep through trials. They miss deadlines. They fail to put on exculpatory evidence. Juries believe every word uttered by “expert” witnesses who opine on defendants they have never met. Jurors evade responsibility by hiding behind the other jurors. Judges evade responsibility by hiding behind jury verdicts, and appeals courts hide behind the trial courts. The Supreme Court can hide from a case by refusing to take it. Elected judges, particularly in Texas, must deliver convictions. Federal judges named to the federal bench because they are pals with a senator overlook deeply flawed trials. And by the time Dow comes into a case, the law will sometimes not permit him to help his client.
In the case of Eric Robert, it might not seem like there is any reason to keep the inmate alive. Justice advocate Bryan Stephenson once noted that he defends criminals because, in his mind, every man is something more than the worst thing he has ever done. Eric Robert wants you, the court, and everyone else to believe that this isn't true. Robert argues that he is a killer. He's a criminal with no value left on this planet. In fact, he argues for his own death. His case could almost be called a state-assisted suicide.

This point is where society must step in and change its focus. What allows a man to reach such levels of despair and personal depravity where he argues for his own death? What events must happen in order for a man to reach the point where he laments not killing more people? Professor Dow often argues that the real injustice happens well before a man is strapped to a lethal injection chair. The real injustice happens along the way, where we as a society miss dozens of chances to intervene. If society really cared about these people, we would have saved them from abusive parents, terrible schools, poverty-striken neighborhoods, and the brutality of a prison system that produces more criminals than it incarcerates. We don't do that, though.

Professor Dow noted in a popular Ted talk that with few exceptions, he could write the biography of every man on death row. Each has a set of horrid circumstances or experiences that led to this point. In some cases, that leads men so far down the road that the conventional death penalty opponent can no longer cling to his most cherished arguments. But cases like Eric Robert's are exactly the type that we must take on. Because these cases show what can happen when society focuses on the outcome and not the process. When society lowers itself to the level where killers can convince the government to join them in killing, we have a fundamental problem. Instead of encouraging life at those places where we might intervene, we are left to clean up the pieces on the back end. We are left with cases like Eric Robert's, where the worst parts of our society are on display at every turn. From the killer to the system that couldn't help him to the state that will put him to death, we are left to witness a true American tragedy.

For those who are interested in Professor Dow's book, "The Autobiography of an Execution," you can find it here. This post is not necessarily intended to promote the professor's work, but people who found this article interesting would certainly find this and other of Professor Dow's works interesting.

Originally posted to Coby DuBose on Criminal Injustice, Race, and Poverty on Mon Oct 15, 2012 at 02:24 PM PDT.

Also republished by South Dakota Kos and Community Spotlight.

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