Thursday, July 17, 2014

Life in Prison with the Remote Possibility of Death: The Death Penalty and California's Broken Punishment Paradigm

Judge Carney's 39 page opinion finding California's death penalty is already setting off a wave of debate in the media. We will see yet whether it catches any political fire in this dry but so far politically placid season in California.  There is much to recommend in the opinion (read it here courtesy of the LA Times).  At its core is an unassailable principle of contemporary 8th Amendment law, that a sanction as severe as death cannot be administered arbitrarily.  The constitutional basis of the contemporary death penalty is that the statutes "narrow" the realm of death eligible crimes so that a rational basis existed for distinguishing those convicted of murder and sentenced to death and those convicted of a similar murder and given life.  Judge Carney reviewed California's system that has handed out around 900 death sentences, but only executed 13 people, and concluded that the system was unconstitutionally arbitrary because no rational basis exists distinguishing those actually executed from many not, and likely never, executed.  His conclusion, summarized in our title quote, is that a death sentence in California is actually a sentence to "Life in Prison with the remote possibility of death." That is not what the Supreme Court decisively upheld as constitutional back in the 1970s (see Gregg v Georgia 428 U.S. 153, 188 (1976))

The Judge also turned to an analysis of the purposes of punishment that is increasingly central to 8th Amendment analysis of both death and long prison sentence cases.  Clear Supreme Court doctrine makes clear that only two (deterrence and retribution) of the four classical purposes of punishment (those plus rehabilitation and incapacitation) can justify the death penalty.  Why?  In a nutshell, long prison sentences can deliver as much rehabilitation and incapacitation as death, so if such a severe sanction can be justified on penal grounds it must be on deterrence (scare potential offenders) and retribution (satisfy community/victim outrage at a particularly heinous murder).  Here few will argue with Judge Carney's bottom line argument that whatever deterrent or retributive value executions might have in a system (Texas? Virginia?) that delivered them more efficiently and effectively (of course those systems may violate other constitutional rights in order to achieve high execution rates, probably do), California, where delay between sentence and execution (if it ever occurs) is around 25 years, cannot deter or deliver retributive justice.

Proponents of the death penalty are and will argue that the delay argument is flawed because the system can be fixed to speed up executions.  This is the crux of Judge Carney's analysis.

California’s death penalty system is so plagued by inordinate and unpredictable delay that the death sentence is actually carried out against only a trivial few of those sentenced to death. Of the more than 900 individuals that have been sentenced to death since 1978, only 13 have been executed. For every one inmate executed by California, seven have died on Death Row, most from natural causes. The review process takes an average of 25 years, and the delay is only getting longer. Indeed, no inmate has been executed since 2006, and there is no evidence to suggest that executions will resume in the reasonably near future. Even when executions do resume, the current population of Death Row is so enormous that, realistically, California will still be unable to execute the substantial majority of Death Row inmates. In fact, just to carry out the sentences of the 748 inmates currently on Death Row, the State would have to conduct more than one execution a week for the next 14 years. Such an outcome is obviously impossible for many reasons, not the least of which is that as a result of extraordinary delay in California’s system, only 17 inmates currently on Death Row have even completed the post-conviction review process and are awaiting their execution. See Appendix A. For all practical purposes then, a sentence of death in California is a sentence of life imprisonment with the remote possibility of death—a sentence no rational legislature or jury could ever impose.
Those who insist that California could have a "normal" death penalty (whatever that means) quickly enough has to address Judge Carney's assessment of the overall system (which includes the paralyzed legislative politics around capital punishment) and its incapacity.  More importantly, those prisoners who have already served more than twenty-five years have an excellent argument that whatever might be true in the future, to execute them now after being degraded or even tortured by decades of uncertainty violates the Eighth Amendment.

Judge Carney's opinion now joins the 3-Judge court opinion on California's mass incarceration system upheld by the Supreme Court in Brown v. Plata (2011) in condemning not the means of punishment but the political system in California whose highly politicized and inconsistent crime policies has produced forms of both capital punishment and imprisonment that violate the Eighth Amendment and offend human dignity.  California, the homeland of governing through crime for decades, needs not just realignment and a repeal of capital punishment, it needs a re-boot of a fundamentally broken justice paradigm (for further details of what might replace it see the last chapter of my new book Mass Incarceration on Trial: A Remarkable Court Decision and the Future of Prisons in America (New Press) out next month)

It is not clear this case will ever be reviewed by the Supreme Court (because the facts are so California specific it is unlikely to establish a precedent for other states), but the question whether even to appeal to the Ninth Circuit Court of Appeals provides Attorney General Kamala Harris, who has already distinguished herself as having a pro-active system view of California's justice problems, to make the case to Californian's that Judge Carney (appointed by President George W. Bush) is right and California's current law does not deserve a defense in the appeals court.  An opponent of capital punishment who has both pragmatic and principled reasons to be reluctant to impose her views on California voters who remain highly divided, she could invite the legislature and citizen initiative groups to propose new capital statutes and put them before the voters.  The backlash at converting existing death row inmates to life without parole will be brief, and easily answered by Judge Carney's findings that almost none of them faced an actual likelihood of execution (one suspects it will be further muted once word of massive unhappiness among the current occupants of death row at being transferred into California's degrading prison system will further allay political damage to the Attorney General from pro-death penalty voters).

Wednesday, April 30, 2014

A Botched Execution

To "botch" something is to carry out a task "badly or carelessly."  Oklahoma's botched execution Tuesday, April 29, 2014, demonstrated that word in its absolute in-glory.  (read the New York Times account here).  Badly?  Executions always cause at least psychological pain.  Even if everything goes perfectly, the physical pains involved in injecting the drugs may not be trivial either, especially when stripped of its normal healing association and replaced by the grimmest. Still, an execution can be carried out badly in countless ways when it causes additional anxiety, humiliation, and physical pain.  The execution of Clayton Lockett as witnessed by reporters was badly done in just this sense.  Prison officials said Lockett's vein "exploded."  Lockett was seen to writhe and shake uncontrollably, attempted to rise up from the gurney to which he had minutes earlier been completely strapped down, and cried out "man"; all after execution officials had announced him unconscious.  Officials apparently blamed the condition of Lockett's veins and further investigation is promised, but these events are extreme for executions in the modern era and fully profile the case that defense lawyers have been making for years that lethal injections in some cases can amount to torture.

But where Oklahoma Governor Mary Fallin and the State's legislators wrote the book on botched is on the "carelessly" branch of the term.  In their zeal to assure a supply of lethal chemicals to kill prisoners at a time when supplies have become scarce due to international revulsion at American capital punishment, Oklahoma politicians passed a law shielding the sources of the execution drugs and adamantly refused defense requests for information about their origins.  When the Oklahoma Court of Criminal Appeals (the state's highest court for criminal appeals) refused to stay the execution despite a lower court having found that Lockett's had right to information about the drugs,  the Oklahoma Supreme Court, which has no regular jurisdiction over criminal appeals, stepped in to issue a highly unusual stay in the interests of justice, only to retreat after the Governor and legislature furiously attacked the jurists, threatening to ignore their decision and impeach them as well.

Not content with having bullied the courts out of the way, and eager to show how trivial defense concerns about the execution drugs were,  Governor Fallin ordered a double execution, a rarity in the modern era and the first in Oklahoma since 1937.  Executions, even when they are not botched, exact a horrible toll on remaining prisoners (both those on death row and in the general population) and on prison staff.  A double execution is a heinous act of cruelty on the entire prison system which  was motivated by the unseemly rush to see executions carried out before courts could fully examine the defense arguments that these lethal chemicals might cause extreme pain to Clayton Lockett and other condemned prisoners.

Careless is not just bad, in a real sense, its evil.  You can do something badly for a lot of reasons (often conflicting interests or roles) but to do it carelessly is to do it without care.  When we say that carpenter was "careless" in building a stair case that collapsed, or a designer was careless in designing an automobile that crashed, what we really mean is that they did their task without caring about the humanity of those who would walk on the stairs or drive the car.  Governor Mary Fallin and Oklahoma officials rushed an execution without caring about the humanity of Clayton Lockett and Charles Warner.  In doing so they raised serious questions as to whether Oklahoma's death penalty inherently violates the Eighth Amendment which as been recently found to be animated by respect for human dignity.

...And then they botched the execution.

Austin Sarat shows in his just published (and incredibly timely) book Gruesome Spectacles: Botched Executions and America's Death Penalty (Stanford 2014) Oklahoma's botched execution may be textbook but it's not unique.  Botched executions are persistent theme in America's capital punishment history, largely fueled by our national combination of uncertain respect for human dignity, and misplaced technological optimism.

By the way, the intensity of Oklahoma's leaders in their pursuit of retributive justice should be put in context of their general lack of interest in governing.  The state ranks 44th in overall poverty, 43 in infant mortality, 47 for cancer mortality.

Thursday, March 20, 2014

Dying Inside: Lifers, the Dying, and California's Correctional Paradigm

Before the hospice program started by prison chaplain Lorie Adolff, dying prisoners in California's state prison in San Luis Obsipo (California Mens Colony) just expired alone in their cells, with prison nurses looking in periodically until their vital signs ceased.  Her project, Supportive Care Services, trains other prisoners, most of them lifers, to sit with and comfort dying prisoners.  The hospice, featured this morning on KQED's California Report (listen to it here), sounds deeply moving and likely a powerful healing experience for everyone involved.  I have had the privilege of being at the bedside of the dying myself (my father) and I have no doubt that that small space is one of freedom and transcendence even in the midst of prison.  It has been movingly described in the correctional setting before (see Ben Fleury Steiner, Dying Inside).

Any bit of humanity and kindness is worth encouraging, but I hope the prison hospice is an idea that spreads fast enough to put itself out of existence.  First, by underscoring the barbarity of California having a large stock of aging "lifers" fated to die in prison (perhaps alone at the prisons that do not have a Lorie Adolff on staff).  There is no penological justification for allowing people to linger in prison long enough to die of  old age after serving decades in many cases.  Prison is, for the moment, our society's way of expressing moral outrage against heinous crimes and protecting the community against people with a habit of using violence to get their way, and spending a piece of your life in a humane prison may be considered justly deserved punishment for crimes that deprive other people of their lives or physical or mental integrity.  But prison sentences must have limits to be rational and just and almost everyone agrees that  California's years of penal populism led legislators and prosecutors to produce sentences that having little relationship to either moral desert or risk.

Prison hospices might help eliminate themselves by driving home a different point.  Prisoners experience change.  Prisoners can change through the the kind of work described in the Supportive Care Services project in which they touch their own humanity.  Prisoners also change through the processes of aging and recognizing the profound gifts of family, community, and freedom.  Our current correctional was built on the premise that such change does not happen, but it happens constantly.  Its the paradigm itself that remains caught in a kind of time warp, like a 1980s mainframe where the calendar is permanently locked on September, 1971.

We now know that crimes are highly situational, contingent, dynamic events.  The best way to reduce crime, even violent crime, is to identify and interrupt the spatial/temporal patterns of human activity that presage and promote violence.  Prison does not do that (by and large, used precisely it might).  Our current mass incarceration policies were baked into our correctional commonsense back in the 1970s (remember when lapels were wide and Jerry Brown was Governor).   Back then most criminologists were throwing up their hands at any way to stop the escalating violent crime rate and some endorse increased prison sentences as the only hope.  Crime went down long after prison populations skyrocketed and even the most supportive criminologists credit incarceration with no more than a quarter of the national crime drop that occurred in the 1990s.  California's heavy investment in incapacitation has been particularly counter productive.  Indeed, having abandoned rehabilitation and reentry, California allowed the formation and stabilization of a racist gang system in prisons that helps prevent prisoners from desisting from criminal lives and life styles.  (Even the gangs have evolved as the recent peace calls and hunger strike suggest, and I currently rate the gangs and the correctional officer's union more ready for change than California's fear based correctional leadership).

Prison hospice can indeed be a model for prison projects that breed a sense of humanity in everyone involved, which both prisoners and prison officers need to prevent dehumanization and demonization from setting in.  But all prisoners need a realistic hope of life on the outside if prison is to be a truly humane and penitential place.  Dying on the inside may happen, when arrangements cannot be made quickly enough for compassionate release or when a prisoner prefers to remain among close prison friends, but dying on the inside should be a rare and unfortunate event.  Governor Brown, to his credit, has unblocked California's executive heavy parole process but it is still far too slow, too cautious, and a huge backlog remains.  Far too many prisoners remain caught by long determinate sentences that do not allow for parole.  Governor Brown, who faces no real challenge to a second term, should use his executive clemency powers to speedily move aging prisoners out of prisons, with those needing the most health care the first in line.  This would help the state cope with the Brown v. Plata medical and population orders and begin to create a climate of compassion and dignity in which the state might begin to revise its pointlessly punitive sentencing laws.

Friday, February 21, 2014

Abandoning a Failed Penal Experiment: New York's Historic Advantage

New York has made it share of bad penal policy choices.  Remember the "Rockefeller Drug Laws"; mandatory life sentences for persons arrested with large quantities of dangerous drugs that helped set the nation on the path toward indiscriminate use of incarceration?  But the "Empire State" has also had a historic knack for getting out of bad penal positions early.  The state began to wind down its position in mass incarceration as early as the mid-1990s, closing as many as 14 prisons, and in recent years has eliminated its mandatory drug laws.  This week the state announced a sweeping settlement with the New York Civil Liberties Union that will bring major reforms aimed at reducing the state's use of isolation prison units (read the NYCLU statement here).  These units, common in the US, keep prisoners isolated full time, with no programming and no access to other prisoners or correctional staff.  All too often, such isolation can continue for years and result in serious mental degeneration of the inmate.  The New York settlement will eliminate the use of this kind of incarceration for juveniles and people with mental illness and begin an expert led process to reduce the state's use of isolation as a disciplinary tool, especially long term use.  The experts, James Austin and Elton Vail, are two of the nation's best penologists and can be expected to seek dramatic reduction.

Interestingly New York's ability to pivot seems to have historic roots.  I was just lecturing to my undergraduate course on prisons about the infamous experiment in solitary confinement at the outset of America's correctional history.  Under the belief that separation of law breakers from society was essential to their reform, Jacksonian prison designers believed that total separation would be best of all.  When New York opened its new cellular penitentiary at Auburn in 1821 it conducted an experiment.  The prisoners deemed least redeemable (oldest and most hardened), were placed alone in cells day and night.  Other prisoners were isolated in cells only at  night, and worked together in workshops during the day.  According to historian Rebecca McClennan (in The Crisis of Imprisonment) the results of the experiment were clear within two years.  The prisoners kept in total isolation were so mentally damaged that the public outrage led a new governor to pardon the prisoners and end the practice.  New York's "congregate" model of common work became the national model for the 19th century.

At around the same time Pennsylvania opened a total isolation prison in Philadelphia.  Aware of Auburn's results, the designers in Philadelphia endeavored to provide the isolated prisoners with a larger cell in which to conduct some kind of distracting labor.  The isolation regime there also resulted in mental degeneration according to its many critics (Charles Dickens among them), but the state stubbornly held on to its regime for another fifty years (the result of organizational factors my former student Ashley Rubin analyzed brilliantly in her dissertation "“Institutionalizing the Pennsylvania System: Organizational Exceptionalism, Administrative Support, and Eastern State Penitentiary, 1829–1875”).

What makes New York so good at getting out of losing positions?  Could it be the State's long association with the financial industry (which survives by being adept at getting out of losing positions with the least damage possible)?  Is it the Empire State's corporatist style of consensus government as described by Vanessa Barker in The Politics of Imprisonment?  It would make a good research paper.  Other states are  moving.  Just today, Colorado Corrections Secretary Rick Raemisch published an op-ed in the New York Times (read it here), reporting on a night he spent in one of his state's isolation cells, and why he is so motivated to wind down the state's use of the practice.

Sadly California seems destined to play Pennsylvania in the 21st century replay of the 1830s debate about solitary confinement.  Under the administration of Governor Brown and Secretary of Corrections Beard, the Golden State has dug in its heels to defend the states typically outsized reliance on total isolation imprisonment.  No state holds more of its prisoners for longer periods of time than California. And while most states use isolation as a penalty for specific disciplinary violations (albeit in New York sometimes very trivial ones), California makes gang affiliation the primary rationale for isolation on a longterm or permanent basis.  A lawsuit has been mounted on behalf of prisoners held in isolation for more than ten years at the state's worst isolation unit, Pelican Bay's notorious SHU (read about it here).  Brown and Beard should follow New York's lead and seek to settle this lawsuit now with a broad strategy to end this shameful second era of solitary.  Perhaps Secretary Beard should follow the example of his Colorado colleague and spend a night at Pelican Bay.  While there he should sit down and talk with the gang leaders whose unified actions during last summer's hunger strike suggests more than worthy interlocutors, and whose lifetime isolation against all international human rights standards has clearly done little to make California prisons safer or less gang identified.

Thursday, February 6, 2014

From Humanity to Health: Why Can't California Get Prison Healthcare Right?

Yesterday to no doubt considerable embarrassment in the Brown-Beard administration, admissions to California's newest prison near Stockton California, were halted by the court appointed health care receiver, law professor Clark Kelso.  The prison, the first new facility in a decade, is the lynch-pin of the administration's frequent claim to have gotten on top of California's decades old prison health care crisis.  The prison is the first of its kind to be purpose built to house and care for many of the state's seriously ill prisoners whose suffering in the grip the state's chronic overcrowding led the Supreme Court to describe the state's system as unfit for a civilized society in Brown v. Plata (2011).  Under pressure to show that it can make progress in reducing that overcrowding, the administration is no doubt frustrated to have to halt adding inmates to the facility intended to hold nearly 1800 prisoners at full capacity, but Receiver Kelso's order and the report accompanied it raises more basic questions as to whether the State has yet drawn any lessons from its decades of human rights abuses about what it takes to operate prisons that respect human dignity as required by the Constitution (as well international human rights conventions to which the state is answerable through the courts of the United States).

So what went wrong in this brand new prison designed from the ground up to deliver health care?  Problems with the radiation treatment equipment for cancer patients?  Problems staffing the dialysis center?  Actually the problems were a bit more basic.  As reported in the Sacramento Bee (read it here):

A shortage of towels forced prisoners to dry off with dirty socks; a shortage of soap halted showers for some inmates, and incontinent men were put into diapers and received catheters that did not fit, causing them to soil their clothes and beds, according to the inspection report and a separate finding by Kelso.
The report also said there were so few guards that a single officer watched 48 cells at a time and could not step away to use the bathroom.
Kelso said the problems at the facility call into question California's ability to take responsibility for prison health care statewide. He accused corrections officials of treating the mounting health care problems as a second-class priority, the newspaper said.

Read more here:

Spokes persons for the administration described the situation as a normal glitch associated with the rolling out of a new facility.  Perhaps.  But it also looks like business as usual in a system where medical neglect of chronically ill prisoners went on for decades under the deliberate indifference of prison administrators and governors.  Rather than apologize to the citizens of this state and seek to make amends to the prisoners, former prisoners, and correctional workers forced to experience and participate in those degrading conditions, the administration has continued with smugness to defend the status quo with an attitude that borders on contempt to the courts.  Is it surprising that actors never held to account for their human rights violations cannot create conditions that respect human rights?  Good healthcare takes medical professionals and modern infrastructure, which appear to be still lacking to a significant degree even in this brand new purpose built "Health Care Facility".  But healthcare also takes humanity.  A prison system that can't get that right, can 't run its healthcare system and shouldn't be allowed to continue to operate prisons on which the good name of the people of California is stamped.

Wednesday, January 8, 2014

From the War on Crime to World War Z: What the Zombie Apocalypse can Tell Us About the Current State of our Culture of Fear

Zombies are everywhere.  Ok not (yet) on the streets (so far as I know); but in our cultural imaginary they are everywhere.  You can find them (in small groups and hordes) in high budget nail biting thriller movies like Brad Pitt's World War Z (2013), on television, and all over print and digital reading material, much of it spoofing both our literary and political histories (including Zombies in Jane Austen and Abraham Lincoln).  For those of us engaged in probing America's culture of fear, and its highly toxic institutionalizations like mass incarceration and mass deportation zombies seem to be a potentially important proxy for the demons that haunt contemporary society, but what do they tell us?  Actually, I think, quite a lot, and the news is mostly good.

First consider the ugly truth about zombies, at least the kind that have appeared in popular culture since1968's Night of the Living Dead.   Zombies form an undeniable symbolic stand in for the twin racialized fears that have helped fuel our punitive culture of control producing both mass incarceration and mass deportation.

One is fear of violent crime and riots, which were reaching one peak in 1968, and were mostly linked in the popular imaginary to African Americans (Director and co-writer George Romero may have subverted this by casting a black male as the heroic protagonist of the movie).  While the riots mostly subsided, sustained high homicide rates in inner-city neighborhoods during the 1970s and 1980, shaped an image of violent youth who did not respond to normal human incentives, some criminologists called them "super-predators" because zombie would have been to self parodying. The crack epidemic further crystalized this association with its imagery of stick like figures shambling toward anyone who could feed their craving.

The second image channeled by the contemporary zombie is that of the "illegal" or "undocumented" immigrant. Starting in the late 1970s and early 1980s, fears of economic decline and national weakness fused with images of "out of control" illegal immigration.  This has always had an undeniably racial cast, associated with migration from the South, Cuba, Mexico, Central and Southern America.

The zombie films from the 1ate 1960s through the 1980s played on and sometimes subverted the fears of suburban middle class Americans that their security and life style was under assault by predatory others whose claim on our humanity was both troubling and potentially treacherous.  Raced without race, the undead took on the otherness that dared no longer be precisely named.

Therein the good news.  The zombie genre is changing in directions that both suggest and support a shift away from the punitive culture of control.  The fact that so much of the genre is now satire suggests and audience prepared to laugh its fears, with a sense of greater mastery.  Even in its latest scary forms, like World War Z the zombie has morphed from drug deranged criminal or rioter to virus carrier.  While this new medical model of the undead may not lead to a cure, it suggests, as those who have seen the movie know (no spoiler here), different ways of coping with them.

Indeed the author of the novel World War Z has also written The Zombie Survival Guide which offers in its own way a scathing critique of the culture of control suggesting among other thing that:

  • Schools will make excellent positions from which to defend against a zombie attack because of their high level of anti-crime oriented security design and tall fencing.
  • Prisons, at least once the prison officers and prisoners have made common cause against the undead, are perhaps the best possible defensive location given their high fences (zombies can't climb) and we can thank mass incarceration for preparing a large number of such formidable redoubts.
  • SUV's only look formidable, but will turn into a zombie restaurant once they get stuck or run out of fuel, you are much better off on a bicycle or a motor cycle.
  • Apartments are much better for security than private homes (especially single story ones) which are inevitably penetrable and have fewer escape options or ready to hand neighbors to defend with.

Wednesday, December 25, 2013

Yes Virginia, there is a death penalty: Reflections on the Christmas Moratorium

On the 19th of December, the paper of record, the New York Times, ran a story discussing the lower number of executions (39) in 2013 than in a previous years; a trend that began sometime ago (read it here).  The causes of this trend are complex and fascinating and worthy of more comment, but here I want to point out something else.  How did the Times know on December 19th how many executions there would be in 2013? That still left more than ten days in 2013 and with more than 30 states with capital punishment still on the books, and more than 10 that regularly execute people, surely a last minute surge might have carried 2013 up and over the not much higher number of executions in 2012.

In fact some real problems with execution drug supplies might actually prevent a surge of executions but even a trickle might have done it but that isn't the reason either.  The truth is that the Times and everyone who knows about capital punishment in America knows that in fact (although nowhere prescribed by law) there is in America (even in the most die hard death penalty states) a Christmas moratorium.  Actually, I'm told it begins somewhat before Thanksgiving and lasts until after January 1.

But why?  Surely if the story we tell ourselves about the death penalty is true this is a very strange outcome.  If executing a murderer is a positive moral act which delivers necessary justice to the community and especially the victims, why don't we work up to the last minute on Christmas Eve executing the large backlog of prisoners under sentence of death who have exhausted their appeals?  Hell, the states are not bound to obey federal work holidays and law enforcement operations continue round the clock generally, so why not executions?

Ok, so perhaps this is a concession to the families of the condemned.  It can sure spoil your Christmas to be contemplating a son, brother, or father who was just strapped to a gurney and shot full of lethal chemicals by state officials acting at the behest of your community only a few days or hours earlier (indeed any death at or near Christmas is almost always considered an especially stiff blow in our culture).  But what about the victim families?  They have to spend every Christmas thinking about their murdered loved ones.  Wouldn't giving them the first Christmas following the delivery of usually long promised execution of "justice", "closure" as it is approvingly called by everyone, be the best kind of Christmas present?  Even if they don't outnumber the families of the condemned, it seems a strange that in almost every other thing respecting the death penalty we favor the families of the victims, why not here?

Is it because Jesus wouldn't like an execution, and, after all, its his birthday (observed)? Ok, I'm not a Christian, so I'll tread carefully here.  From my reading of the New Testament I would have no problem coming to that conclusion (and he was after-all, executed himself); but a fair observer of our culture would have to conclude that real Christians as a community are split on the question of what  Jesus would do about capital punishment.

The answer it seems to me is inescapable.  Christmas, whether you are a Christian or not, is globally recognized and admired for the its message of celebrating humanity (of course many of my Jewish ancestors in the Russian Pale during the 19th century would have found this deeply ironic as a Christmas pogrom came down on them).  The divinity of Jesus may be debatable, but the message that the dignity of divine creation is one embodied in humanity itself has become a central core of our international human rights tradition and deserves universal acceptance.  It is a message that finds independent expression in Judaism, Islam, and most of the world religions.  The death penalty is incompatible with recognizing the humanity of the person being executed and the humanity of the people who have to carry out the execution.  That is the reason a Christmas moratorium (I almost wrote truce) is observed in Texas, Virginia, and everywhere in the United States.  Whatever may have been true in 1789, or 1868 (when the 14th Amendment was adopted), in today's world what denies humanity is not a moral good.  At Christmas, at least, we acknowledge that.

So Virginia, the hard truth is this.  Santa Claus is a myth.  That means its not true or false; it depends on beliefs and the cultural practices that give them life.  If you woke up this morning and found presents under your tree Santa Claus does exist.  The idea that executing people is a positive moral good, in contrast, is simply a lie; and the Christmas moratorium proves that everyone knows that.