There are many issues in politics that are referred to as the “third rail.” Issues that the political consultants and pundits always advise candidates to stay away from, lest their position result in the sudden death of their candidacy.
Social Security reform is the best example of these.
Office seekers are advised to comment on this topic only in the most general of terms otherwise they risk awakening the wrath senior voters, who fear any changes to this “sacred cow.”
The death penalty is another of these.
In 1972, the United States Supreme Court ruled that it was so arbitrarily and capriciously imposed that it violated the Eighth Amendment of the Constitution which prohibited the infliction of cruel and unusual punishment. One justice likened it to being struck by lightning.
The death of capital punishment was short lived.
Over the next four years, thirty-seven states enacted new death penalty statutes and the Supreme Court restored viability to this punishment in 1976.
Even New York revived it. In 1995 the legislature passed a law, which Governor George Pataki signed, that was so complex and convoluted that supporters of the law predicted that no one would be executed.
They were right.
Although a number of defendants were sentenced to death, in 2004 the New York Court of Appeals in People v. Lavalle ruled that the law was unconstitutional and all of the sentences that had been imposed were invalidated.
Oddly enough, Lavalle had tried to waive his right to appeal his conviction and fire his lawyers because he wanted to be executed rather than serve a life sentence without parole but the Court ruled he couldn’t do that.
Another example that you don’t always get what you want in life.
When I was seeking election to County Court in 1996, this became the “third rail” issue in the campaign.
I was and still am an opponent of the death penalty. If, like many of the states in the south, the law allowed a judge to overrule a jury’s recommendation of life imprisonment and impose the death, I could not have held this position.
The New York law made the sentencing a pure jury decision, giving no discretion to the trial judge to impose a different sentence.
Under that scheme I would have no moral qualms of passing a sentence and could insure that anyone tried for a capital offense in my court would get the fairest trial possible.
As it turned out we had no capital cases during the time I was a judge in county court and was spared any moral or ethical dilemmas on this subject.
During my two terms in County Court I began to research the capital punishment cases following its restoration in 1976.
I read every United States Supreme Court decision through the years of the Rehnquist Court which ended in 2005.
As the makeup of the Court changed and became more conservative, imposition of the death penalty became more flexible and I arrived at the conclusion that it had returned to being arbitrary and capricious.
Whatever analysis and writing I was going to undertake would be incredibly confusing because the reasoning behind the court decisions expanding it was muddled to the point of being incomprehensible.
I gave up the research and moved on to other topics.
Last week I went to listen to lawyer and death penalty opponent, Bryan Stevenson, speak at the conclusion of the Friends of the County Library Series held at the Oncenter.
Stevenson is the founder of the Equal Justice Initiative in Montgomery, Alabama that represents condemned prisoners and the author of the book”Just Mercy: A Story of Justice and Redemption,” which recounts Stevenson’s first death penalty case.
He is a gifted lawyer who was responsible for Supreme Court decisions that prohibit imposing the death penalty on people under eighteen or sentencing them to life without parole.
Another of his projects is establishing a memorial to document the almost four-thousand African-Americans who were lynched in the south between 1877 and 1950.
Stevenson spoke with a passion and eloquence that I have seldom heard about poverty, racism and the way it feeds into both the criminal justice system and perpetuates the conditions that lead to gang violence, random shootings and the adolescent crime that plagues our nation.
His challenges for the more affluent of us to address those issues was inspirational and restored my faith in the future and my belief that there are better angels that walk among us.
Always an enlightening read. The human condition will never get things right ~ so all we can do is continue to attempt to educate.
Sorry that I missed that LL talk & heard he was the best in a long time. Passion speaks loudest. A.