Feelings Don’t Make Good Policy

West Virginia abolished the death penalty in 1965. We haven’t actually executed anybody since 1959. There are many things about this state that can be embarrassing, but that’s something I’m always proud of. From my perspective, the six states that have abolished the death penalty over the past few years (Maryland is the latest) are just following our lead.

Leave it to a long-term House of Delegates member to try and drag us back into the past.

John Overington, a GOP delegate from Berkeley County, has introduced a bill to bring the death penalty back to West Virginia. This is not a recent change of heart for him – he’s done the same thing for the past 26 years. Thankfully, his bill has been dead on arrival in all those years and, most likely, will be again.

I respect people, like Overington, who think capital punishment is a legitimate part of a proper justice system. I think they’re wrong, of course, but they have deeply held convictions (so to speak), just like I do. I just wish they’d come up with better arguments to support their positions, one that didn’t sound like they were just pulled from the ether. For example:

Overington said he will continue pushing such bills because he thinks the state would be better served if it could execute convicted murderers.

‘You want to live in a just society that is fair, and capital punishment, if somebody is murdered, I think there’s a perception that you have fairness if that person is put to death,’ Overington said. ‘It sort of adds to the fairness of our society and helps make it work. If you feel that our justice system is fair, it helps you believe in it.’

Feelings aside, I’m not sure anybody would use “fair” as the primary descriptor of the American death penalty. It’s disproportionately deployed against the poor, African-Americans, and those without access to high-priced legal help. Add to the mix the fact that those cases become potential career makers for prosecutors and there’s lots of potential unfairness built into the system. But ignoring those problems makes Overington “feel” better about the justice system, so it’s all OK.

On the question of fairness in the justice system, it boggles the mind that Overington is either unaware of, or has overlooked, one of the great criminal justice scandals of the late 20th century that occurred right here in West Virginia, all while Overington was pushing to bring back the death penalty.

Fred Zain was a serologist in the West Virginia State Police crime lab. He dealt with various bodily fluids – semen, blood – left at crime scenes. After a spectacularly notorious rape case against a man who had served five years in prison fell apart when Zain’s work was closely scrutinized. In the end, an investigation ordered by the state Supreme Court of Appeals (and, to be fair, instigated by the Kanawha County prosecutor) revealed fraud on Zain’s part on a massive scale:

Hundreds of blood tests that West Virginia prosecutors have used to link defendants to crime scenes over a 10-year period are now invalid because a former State Police serologist may have fabricated the results, the West Virginia Supreme Court of Appeals has ruled.

At the court's request, an independent team of serologists spent the last five months combing through the testimony of Fred Zain, the State Police serologist from 1979 until 1989. In the 36 cases it investigated, the team said, it discovered that Mr. Zain had lied about, made up or manipulated evidence to win convictions in every single case.

Emphasis mine, because, for fuck’s sake . . ..

All told, 134 convictions were called into question. In an opinion laying out the procedure for challenges those convictions, the court concluded:

The matters brought before this Court . . . are shocking and represent egregious violations of the right of a defendant to a fair trial. They stain our judicial system and mock the ideal of justice under law.

And while the court later concluded that Zain’s fraud wasn’t replicated by other technicians in the lab, the whole system nonetheless failed:

This corruption of our legal system would not have occurred had there been adequate controls and procedures in the Serology Division. [The] report is replete with deficiencies and derelictions . . ..

Of course, problems in crimes labs aren’t unique to West Virginia. But if any state should give the ultimate punishment a wide berth, it’s the state of Zain.

More problematic is that Overington is being guided by another feeling – fear – that’s completely unfounded:

Other than Maryland, all of West Virginia’s neighbors still have the death penalty - and Overington said he fears that West Virginia invites killers by not having capital punishment as a deterrent. However, West Virginia’s homicide rate for the past 10 years is lower than that of all neighboring states, according to FBI data.

Indeed, West Virginia famously has had a low crime rate for years (if not decades). It’s one of the few state ranking lists where we’re consistently near the top. It’s unlikely that killing the odd inmate every few years will make us any safer.

Lest you think Overington is alone in his quixotic quest, he does have some bipartisan support:

The bill has one Democratic co-sponsor, Del. Rupert Philips [Logan County], who said that people he’s talked to while campaigning seem to support it.

‘When’s enough enough? We’re wasting tax dollars trying to prosecute them,’ Philips said. ‘An eye for an eye.’

This is, of course, false. It costs exponentially more for a state to execute someone – or even seek the death penalty without achieving it – than it does to lock someone in a cage for life. Prosecutors and law enforcement investigators would need more money. My colleagues in the state public defender system would need serious reinforcements if they took on capital cases – they are a complete time sink for even the most experienced of litigators. Hell, even my office would need serious expansion for the federal habeas corpus proceedings that would be necessary. Finally, the courts would need revamping. West Virginia has no mid-level appellate court, which would be a must if we’re going to try and execute people.

The bottom line is that not only is Overington’s crusade based only on “feelings,” those feelings are contradicted by empirical evidence. Squishy feelings are an understandable, and maybe even a good place, to start when thinking about an issue. But, eventually, if everything tells you your feelings are wrong, you’ve got to go back and rethink your conclusions.