Cruel and Unusual

What no one argues is that four people were killed in Tommy Zeigler’s family furniture store in Winter Garden, Florida, on Christmas Eve.  That much is not in dispute.  The dead were Zeigler’s wife, Eunice; her parents, Perry and Virginia Edwards; and a customer named Charlie Mays.  Zeigler himself was also shot and badly wounded, which is either evidence that he was a surviving victim of a robbery gone catastrophically wrong, or evidence that he was a very determined murderer willing to shoot himself in the abdomen to sell the story.

This is not a cheerful Christmas story.  Somewhere Norman Rockwell just put down his paintbrush and poured himself bourbon.

The State of Florida’s theory was that Zeigler planned the whole thing.  According to prosecutors, he killed his wife for a large life-insurance payout, then killed her parents and Charlie Mays as part of an elaborate cover-up.  Mays, in the state’s version, was not an innocent customer who wandered into the wrong furniture store at the wrong time—he was the convenient corpse Zeigler needed in order to make the murders look like a robbery or shootout.

Zeigler has always maintained the opposite.  He says he walked into violence already in progress, fought for his life, and barely survived.  His lawyers have repeatedly argued that physical evidence, blood evidence, and DNA evidence do not support the prosecution’s version of events.  Prosecutors, with equal enthusiasm, have insisted that the case was proved and the jury agreed.

A Florida jury convicted Zeigler.  He was convicted of first-degree murder in the deaths of Eunice Zeigler and Charlie Mays, and second-degree murder in the deaths of Perry and Virginia Edwards.  The jury recommended life imprisonment for the death-eligible counts.  The judge overrode that recommendation and imposed death sentences anyway, because Florida law at the time allowed judges to do that sort of thing.  It is always comforting when the justice system finds a way to make “recommended by the jury” mean “thank you for your suggestion, please enjoy a complimentary mint on the way out.”

The case then moved into the strange afterlife of capital punishment, where nothing is ever really finished.  Zeigler’s original trial concluded, but the litigation continued.  His death sentence was vacated and then reimposed by a different judge.  There have been appeals, post-conviction motions, DNA fights, evidentiary hearings, death warrants, stays, more motions, more hearings, and enough paperwork to mulch a small national forest. 

This is where the phrase “cruel and unusual” begins to chew through the bars of Tommy’s cell on death row.  You see, Tommy Ziegler was convicted in 1976, he has been waiting to be executed for 50 years.

The Constitution prohibits cruel and unusual punishment.  Any civilized person should be willing to admit that the deliberate killing of a prisoner by the state at least wanders into the neighborhood of that prohibition, even if the Supreme Court has decided, for now, that capital punishment is not automatically unconstitutional.  “For now” is doing a great deal of work in that sentence.  Constitutional law is permanent in the same way wallpaper is permanent.  It stays right where it is until enough people decide it has become hideous.

There are endless debates about the death penalty, and I understand both sides, which is inconvenient because it prevents the clean pleasures of yelling.  I dislike the idea of the state executing people.  I especially dislike the idea of the state executing people after the state has repeatedly demonstrated that it can lose evidence, botch trials, rely on junk science, believe jailhouse informants, and occasionally confuse “beyond a reasonable doubt” with “close enough for government work.”

On the other hand, I can think of crimes so monstrous that life in prison feels inadequate.  There are people who have done things so evil that the soul reaches for punishment before the brain can call a committee meeting.  For someone like Osama bin Laden, even my better angels admit the executioner should browse the power-tool aisle at Lowe’s in search of a method of fulfilling the court’s sentence. 

So, I am not writing this as someone who thinks the death penalty is always morally impossible.  I am writing as someone who thinks it is far too easy to support the death penalty in theory and far too hard to defend it in practice.

Because in practice, it is a mess.  A slow, expensive, contradictory, lawyer-fed mess.

And it is expensive.  That is the part that always surprises people.  Many assume execution must be cheaper than keeping someone in prison for life.  After all, food costs money.  Guards cost money.  Medical care costs money.  Prisons are not free, no matter how many politicians speak as if we built them out of surplus righteousness and unpaid interns.

But the execution itself is not the expensive part.  The syringe, the chemicals, the gurney, and the last meal are not what bankrupts the state.  The money disappears decades earlier, in the capital trial process.  A death-penalty case is not just a murder trial.  It becomes a media circus that lingers for years.

The lawyers have to be more specialized.  Jury selection takes longer.  Experts are hired.  Motions breed in the file cabinet like rabbits.  If there is a conviction, there is often a separate penalty phase, which is essentially a second trial to decide whether the defendant will live or die.  Then come the automatic appeals, state post-conviction proceedings, federal habeas petitions, challenges to evidence, challenges to lawyers, challenges to the method of execution, and occasionally litigation over whether the state’s preferred chemical cocktail is medicine, punishment, or a very grim chemistry fair project.  All of this clogs up the court calendar and costs some very real taxpayer money.

And there should be safeguards.  That is the maddening part.  The cost is not simply waste.  Much of it is the price of trying not to kill the wrong person.  A mistaken prison sentence is terrible, but at least there is some possibility of correction.  A mistaken execution cannot be fixed with an apology, a check, and a plaque reading, “Oops.”

Study after study has found that death cases cost more than life-without-parole cases.  Maryland found that a death sentence cost millions more than a comparable non-death case.  California’s death-penalty system has been estimated to cost billions more than a system where life without parole is the maximum penalty.  North Carolina researchers reached similar conclusions.  Kansas found that death cases devour more court time than ordinary murder cases, which is a little like discovering that a hippopotamus takes up more room in the bathtub than a duck.

So no, the death penalty is not the budget-conscious option…it is not discount justice.  It is premium-priced vengeance, financed one hearing at a time with the taxpayers footing the bill.

If we lived in some imaginary country where the sheriff arrested a murderer on Monday, the judge sentenced him on Tuesday, and the executioner handled matters on Wednesday before lunch, then yes, execution would probably be cheaper.  But that is not the United States.  We have constitutional protections, appellate review, evidentiary rules, procedural safeguards, and a national memory full of wrongful convictions.  We also have judges, lawyers, prosecutors, clerks, experts, transcripts, motions, remands, re-hearings, and a legal vocabulary apparently designed by people paid by the syllable.

The real question, then, is not whether execution is cheaper.  The real answer is that it usually is not.  The real question then becomes whether the state should spend extra money to achieve death rather than permanent imprisonment.

Some people will say “yes” because they believe certain crimes deserve the ultimate punishment regardless of cost.  That is a moral argument and it may be right or wrong, but at least it is honest.  What is not honest is pretending the death penalty saves money.  It does not.  In fact, it is the most expensive way to prove that the state is very, very angry.

Which brings me to a possible compromise (though I admit compromises on the death penalty have all the natural grace of a committee-designed camel).  What if the death penalty were reserved exclusively for the worst of the worst: serial killers and mass murderers?  Not every murderer.  Not every horrible case.  Not every crime that makes the evening news unbearable.  Only those who kill multiple people in a single mass-murder event, or those who murder repeatedly over time.

This would not end the moral argument, it would not satisfy abolitionists, and it would not satisfy those who think every aggravated murder deserves death, but it would narrow the system dramatically.  America’s death rows include roughly two thousand people.  If capital punishment were restricted to serial killers and mass murderers, the number of eligible prisoners would shrink to a small minority (probably only a few hundred at most).  Most capital murders are horrifying, but they are not Ted Bundy, John Wayne Gacy, the Oklahoma City bombing, or a school massacre.

But the larger point remains:  If society insists on keeping the death penalty, it should at least stop pretending that every death-eligible case is equally clear, equally monstrous, and equally worth the cost.  Reserve it for the rare category of crimes where the evidence is overwhelming, the public scrutiny is intense, and the scale of the crime is beyond ordinary murder.  For everyone else, life in prison without parole is not mercy.  It is a concrete box with meals, boredom, old age, and no exit.

If this rule had been in use for the last half century, we would have reduced the number of people sitting on death row in this country from roughly two thousand to about three hundred.  Not only would we have taken a significant step to unclogging the our country’s court dockets, we would have saved the taxpayers about $4 billion.

That may not satisfy the hunger for vengeance, but it would have been cheaper, cleaner, and less likely to leave us fifty years later, staring at an old man on death row and wondering whether punishment has become less a sentence than a national nervous breakdown.

The death penalty, as practiced, is not swift, it is not cheap, it is not simple, and, after half a century, it is hard to call it justice without feeling the word wobble in your mouth.  Can anyone really argue that Florida’s executing an eighty-year-old man now confined to a wheelchair after he has endured half a century on death row serves the cause of justice?

At some point, the state should either carry out the sentence quickly, constitutionally, and correctly, or admit that it cannot.  Because a system that takes fifty years to decide whether to kill a man is not projecting moral certainty.  It is pacing the floor in a black robe, mumbling to itself, and billing the taxpayers by the hour.