Inconsistency a given with death penalty

Dale Leo Bishop

By Tim Kalich
Editor



Saturday, July 26, 2008 9:15 PM CDT



Mississippi has been averaging an execution a year for the past six years — enough that we’re starting to grow somewhat numb to them.

We’ve come to expect the last-minute flurry of legal appeals, the countdown in the press, the pro and con vigils outside the gates of Parchman or at the Governor’s Mansion, and the deaf ear of whoever is governor for clemency.

And when the deed is done — when the lethal chemical mixture is injected into the arm of the condemned inmate — the show closes down until the string runs out for the next one on death row.

Mississippi is a pro-capital-punishment state. By margins of 3-to-1, maybe more, citizens here believe in an eye-for-an-eye. Their major complaint with executions is that they don’t happen often enough. Even the fact that at least 16 innocent inmates, including one in Mississippi, served time on death row but were later exonerated doesn’t seem to quench support for the ultimate punishment.

It’s unlikely that Dale Leo Bishop’s execution this past week will change public attitudes much. Bishop was guilty of the crime for which he convicted. He never pretended otherwise.

Still, his case exposes another troubling aspect of capital punishment having nothing to do with guilt and innocence. Rather, it demonstrates the arbitrariness of the death penalty.

Bishop, as has been amply pointed out, got a worse deal as an accomplice to a murder than did the associate who actually dealt the death blows.

Bishop, who is mentally ill, was his own worst enemy at his sentencing eight years ago. He waived his right to a jury’s determination of his punishment and asked to be executed. The presiding judge complied. The co-defendant who admitted to the gruesome bludgeoning went on trial later and drew a life sentence.

When Bishop got stabilized with medication, he tried to recount his death wish. He acknowledged his culpability in the murder of his former buddy Marcus Gentry, and he expressed remorse for his actions. He did not expect Gentry’s family to forgive him, but he decided that he would like to live after all. The appeals courts repeatedly turned him down.

So did Gov. Haley Barbour.

Now Barbour is taking grief not because he showed no mercy for Bishop, but because he did for another killer, Michael David Graham.

Days before Bishop’s execution, Barbour suspended Graham’s life sentence. Graham’s crime was just as dastardly — gunning down his ex-wife in broad daylight on a public street while she sat in her car. But Barbour, who got to know Graham as a trusty in the Governor’s Mansion, decided 19 years in incarceration was punishment enough.

Barbour and his spokespersons have been unconvincing in explaining the governor’s disparate judgment. They claim there’s no comparison between the the cases of Graham and Bishop.

The only real difference, though, is that Barbour had the opportunity to get to know one of the two men. Would Barbour’s response to Bishop’s request for clemency been different had Bishop been serving the governor eggs every morning rather than languishing on death row?

That’s what happens to those who take a hard line on capital punishment. It’s hard to extricate themselves from it later.

The Clarion-Ledger put itself into a similar bind. For years, the Jackson newspaper has editorialized in favor of capital punishment. It has complained about the lengthy delays, periodically showing the faces of every inmate on death row and how long their appeals have dragged out.

Last week, however, the Jackson newspaper argued in vain for clemency for Bishop. It said it was unjust to execute an accomplice to murder while letting the actual murderer’s life to be spared.

Later, in comparing Bishop’s fate to that of Graham, it bemoaned the apparent inequity. “If the law is not consistent, that is, equal for one as the other, it’s not justice,” the paper wrote.

That’s a commendable ideal, but it ignores the realities of the criminal justice system — and human nature for that matter.

There is no consistency in the criminal justice system. There are guidelines, of course, for the judges and juries to follow. Within the guidelines, however, there is a lot of room for humans on the bench and in the jury box to apply their sense of fairness or to be influenced by their own biases.

There will always be arguments about disparate verdicts and punishments. That’s because criminal trials are not and never will be flawless. As a rule, rich defendants do better than poor. White defendants do better than minorities. Sane defendants do better than the mentally ill. Even when all these factors are equalized, a defendant’s fate hinges heavily on the venue of his trial.

Bishop drew a death sentence from a judge who went by the book. A judge in another county might have seen Bishop’s death wish for the craziness it was and ordered a mental evaluation.

There are going to be inequities with every punishment. That’s a given. With the death penalty, though, the inequity is irreversible.