Friday, 15 June 2007


by Jack Payden-Travers

John Langley was murdered on the night of April 26, 2001. Christopher Scott Emmett was to be injected last night with lethal chemicals in retribution for that crime. “A life for a life,” many people will say. Probably that is what most of us think when we read about murders in the news.

Is this really how we want our society to operate? What’s the problem with a system of justice based on retribution?

Some 4,000 years ago, the original Hammurabic Code was laid out, and it contained the eye-for-an-eye principle. At that time, this marked a major shift in judicial thought from a revengeful system to a retributive one. The eye-for-an-eye was a statue of limitation in its day, since up to that point sheer clan justice or revenge killing was the name of the game. But over the last four millennia, the world’s sense of what is best for society has shifted once more. We now invoke a higher justice than mere retribution, and we insist that the criminal-justice system be more than a proxy agent for victims or their families who may, by well-recognized human nature, be hell-bent on revenge. Except when it comes to the death penalty. Today the United States stands as the sole Western democracy still stuck on the Code of Hammurabi. The U.S. is allied with Iran, Iraq, Saudi Arabia and China in applying the death penalty as a punishment for murder.

Fortunately, in our collective mind, we know better. Society has developed alternatives to clan justice, which base criminal punishment on what is best long term for the community. Vigilante justice of “hang ‘em high” from the nearest tree has given way to “innocent until proven guilty” and a system of trials and appeals. Indeed, if Virginia did not have this type of system, it is likely that death-row exoneree Earl Washington Jr., who was wrongfully convicted in Culpeper of rape and murder in the 1980s, would have been executed by the Commonwealth in the 1990s. The system needs an extended period of appeals to make certain that an innocent person is not executed. Indeed, the 124 men and women who have been exonerated from death rows across America took an average of nine years to prove their innocence.

But the issue for Chris Scott Emmett is not guilt or innocence. He is guilty of murder. The choice is between execution and life in prison without parole. The issue is whether Mr. Emmett’s jury would have sentenced him to death or opted for a life sentence had they known all the facts. At least one juror has declared that that she would have voted for life imprisonment had she been presented with the truth about the defendant’s childhood. This is unfair, not only to Chris Emmett, but to those expected to make life-and-death decisions in our name.

The issue is this. Should Mr. Emmett die in spite of the fact that his execution will represent the first time ever that Virginia has executed a person in spite of Virginia’s own court findings that he did not receive the minimum quality representation required by the Constitution? Virginia is presently poised to execute a number of men who were convicted and sentenced to death before a range of judicial reforms were instituted in the Commonwealth. In Mr. Emmett’s case, he did not have the benefit of a highly trained public defender who specializes in capital defense. The Supreme Court of Virginia unanimously ruled that “it is clear that trial counsel was ineffective for failing to object to the improper and incomplete verdict forms” that were given to Emmett’s jury.

A U.S. Court of Appeals federal judge who reviewed the case noted that “(c)ounsel had failed to investigate adequately Emmett’s childhood, and counsel’s inadequate investigation prejudiced the sentencing phase of Emmett’s trial.” Mental-health and social-service records were not even requested. Six out of seven siblings were not interviewed.

Is this really the way we want “justice” to be carried out in our name? Nothing any of us can do would ever compensate Mr. Langley’s family for the life of their beloved relative. Meanwhile, the execution of Chris Emmett will only create a new and unjust category of victims of homicide, albeit “legal homicide,” as the death certificate the Emmett family receives will read.

It is time to move beyond Hammurabi and find alternatives that will restore community and bring an end to the cycle of violence that homicides of any kind create. Eventually an-eye-for-an-eye blinds us all.

Jack Payden-Travers is the director of the Charlottesville-based Virginians for Alternatives to the Death Penalty.

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