Gawker recently published a letter from Ray Jasper, a death row inmate who was convicted of killing a man named David Mendoza Alejandro. David’s brother, Steven, then published a response to Ray’s letter, which, as you can imagine, casts the contents of Ray’s letter in a decidedly less positive light.
As I was reading through Steven’s letter, several things jumped out at me. First, there was this passage, about when Steven testified at trial regarding his brother David:
After I was sworn in and sat in the chair, the prosecutor handed me a picture of David. It was a postmortem picture. It was a close up of David’s face from the neck up. His eyes still open. The gash from Jasper’s knife visible. I let out a gasp and when the Prosecutor asked me what the picture was of I told him, “it’s my brother, David.” Through tearful testimony, I tried my best to bring my brother back to life in that courtroom. When I got off the stand I reached for my father’s embrace and sobbed as I had never before and have not since.
This is a good example of how prosecutors manipulate the emotions of witnesses in order to inflame the jury. Here is a guy whose brother was recently killed, and the prosecutor, with zero scruples whatsoever, shows the witness a photograph of his brother’s freshly murdered corpse. The prosecutor then proceeds to ask him to talk about his brother while holding the same gruesome photo of his brother’s corpse in his hand. This is outrageous conduct by the prosecutor. There was absolutely no legally compelling reason whatsoever to show Steven a picture of his brother’s murdered corpse. But the prosecutor did it anyway. Because he knew it would upset Steven and make him an emotional mess on the stand. That of course, would make the jurors more likely to convict based on emotion, rather than the evidence.
Another part of the letter that jumped out at me was Steven’s vacillation over the death penalty. When the defense called him to the stand, they tried to get him to testify that he was opposed to the Death Penalty, but he refused to admit it, even though he actually does oppose the Death Penalty. David wrote the following after recounting his testimony:
After everything, I’m still opposed to the death penalty. I have no intention of witnessing Jasper’s execution but I have no intention of fighting to stop it either. Does this make me a hypocrite? Maybe, but that’s for me to live with. I harbor no illusions that Jasper’s ceasing to exist will ameliorate the pain I feel daily from the loss of David. The truth is I rarely think of Jasper or the other defendants. I think of David more. Those thoughts are more important to me than anything else. Certainly more important than any last statement from Ray Jasper. Though I purposefully skipped reading Jasper’s statement, I did read through the comments. I have to say to my fellow death penalty opponent friends: Keep up your fight. It is an honorable one. But do not use this man, Ray Jasper, as your spokesperson, as your example of why the death penalty should be abolished. The death penalty should be abolished because it is wrong to kill another human being. Not because a Medical Examiner said your knife wound did not cause immediate death. Ray Jasper is not worthy of your good and kind hearts. He has never accepted culpability or expressed remorse. He is responsible for viciously ending the life of “the nicest man he ever met.” Responsible for ending the life of the nicest man my family ever met, David Mendoza Alejandro.
As the family member of a murder victim, Steven Alejandro is certainly entitled to feel whatever way he feels about his brother’s death, and about Ray Jasper’s fate. But I think he’s making a categorical error in reasoning when he tells us that it’s wrong to kill another human being, and also says that Ray Jasper is not worthy of our good and kind hearts.
There are two types of arguments against the Death Penalty. One of them is procedural, and the other is ethical. The procedural argument against the Death Penalty is that human beings are flawed, and thus, so are human institutions. Even if we agree that some people deserve to die, the State is incapable of reliably making those determinations. So procedurally, the Death Penalty can never be effectively implemented without an intolerable risk of injustice.
The ethical argument against the Death Penalty is different. The ethical argument claims that even if we could reliably determine the guilt of persons accused of Capital Crimes, the Death Penalty should still be abolished, because all human beings have fundamental human dignity and inherent value. Nobody is capable of forfeiting their inherent value through their actions or omissions. As Steven Alejandro said in his letter, “The death penalty should be abolished because it is wrong to kill another human being,” i.e. it is wrong no matter what the circumstances. Even if the person you are killing has murdered someone you care about.
That’s the fundamental difference between someone who supports the Death Penalty, and someone who wants it abolished on ethical grounds. A person who wants the Death Penalty abolished needs to be able to look the killer of a loved one in the eye with a straight face, and say “you don’t deserve to die.” It is certainly difficult to maintain this conviction when faced with the violent loss of a loved one. And it is completely understandable that a person’s conviction might flag when a prosecutor is manipulating your emotions on the stand.
But it is wrong to say that you oppose the Death Penalty, while also stating that the people most likely to benefit from abolishing it (e.g. Ray Jasper) are not worth the good and kind heart of abolitionists. Ray Jasper is a far more realistic version of the type of people who will benefit most from Death Penalty abolition than the unspoken alternative Steven Alejandro has in mind. Indeed, Jasper does not seem to be the same selfish, violent 19-year old that participated in the robbery and murder of Steven Alejandro’s brother, demonstrating that even murderers are not beyond change and redemption. But even if this wasn’t true, Jasper would still be an acceptable spokesperson for Death Penalty abolition. If the ethical argument against the Death Penalty doesn’t hold up in Ray Jasper’s case, then it really doesn’t hold up at all.