Hentoff and the death penalty


Personally, I am fairly ambivalent about the death penalty. It would not bother me terribly if the death penalty were suspended in all the states, but I would not consider it a civilizational advance, nor do I think the culture-of-death-loving European governments are morally superior for having abolished it. On balance, I do believe it is a deterrent for dedicated criminals, as most criminals calibrate their actions based on very rational risk/reward criteria.

Nat Hentoff is a man of the Left for whom I have the utmost respect. An atheist, he is nonetheless pro-life, and outspokenly so. Being a civil-liberties fetishist, he is wrong about many things, yet his manner is never anything other than courtly and reasoned. When he speaks on an issue, I pay much greater attention to him than nasty-tongued liberals such as Michael Kinsley or Maureen Dowd.

Hentoff's article on Alberto Gonzalez, the incoming attorney general, made me stop and think about how the death penalty is applied. Gonzalez, as the legal counsel to President Bush when he was governor of Texas, wrote 57 briefings about death-row inmates facing the imposition of their sentences. Hentoff relies on an Atlantic Monthly article about Gonzalez, which criticizes him for relying on the Texas appeals courts' decisions:

As I and other journalists reported during Bush's governorship, the Texas appeals courts notoriously championed, as they still do, the death penalty....Gonzales, by his mechanical reliance on lethal decisions by those courts, ignored, as [Atlantic writer] Alan Berlow notes, "one of the most basic reasons for clemency: the fact that the justice system makes mistakes."
No anti-death-penalty article is complete without The Questionable Execution Story, and here is Hentoff's:
One of the cases in the article was that of "Terry Washington, a mentally retarded thirty-three-year-old man with the communication skills of a seven-year-old." In his three-page report on Terry Washington, Gonzales never mentioned that Washington, as a child, along with his 10 siblings, was "regularly beaten with whips, water hoses, extension cords, wire hangers, and fan belts." And this was "never made known to the jury, although both the district attorney and Washington's trial lawyer knew of this potentially mitigating evidence." Just hours after Gonzales's brief report to Bush, Washington was executed.
From Berlow saying "the justice system makes mistakes," to the facts about Terry Washington's upbringing, you might conclude that Washington was unjustly executed.

You might conclude that — if you believe that all executions are wrong. That would be defensible, because then we're getting down to the real issue, which has nothing to do with whether Terry Washington was innocent or not.

This being the age of the Internet, I wondered if I could find more facts about this case. Google, when I searched for "Terry Washington" murder execution, returned results for articles that sounded very much like Hentoff's, with the implicit message that Washington was not responsible for his crimes because he was retarded. Then I found the actual ruling of the circuit court that denied his appeal, and you can read for yourself to see if he's guilty:

Beatrice Huling and Terry Washington worked at Julie's Place, a restaurant in College Station, Texas. Huling was the restaurant's night manager, and Washington worked as a dishwasher. As part of her duties, Huling would count the night's receipts at the close of business, place cash in the register for the next day, deposit the surplus cash in the office safe, wait for the dishwasher to finish cleaning, set the security alarm, and lock the restaurant....

At 2:30 a.m. that same morning, Michael Jennings was in the parking lot next to Julie's Place. He heard an object hit the ground and went to investigate. Jennings found a purse and immediately called the police. The police arrived shortly thereafter and found Beatrice Huling's name and address in the purse and her car in the parking lot. The restaurant was closed and locked. The police ultimately entered the restaurant and discovered Huling's dead body ten to fifteen feet from the back door, lying in a pool of blood, with her head next to the base of the office safe. She had multiple stab wounds.

The investigation of the crime scene and the autopsy showed that Huling's hands had been tied with apron strings and that she had suffered eighty-five stab wounds, seven of which were fatal. The medical examiner testified at trial that the murder weapon had a five-and-a-half inch blade and that he believed it took Huling ten to fifteen minutes to die. The investigation further found no signs of forced entry into the restaurant, and that $628.00 had been stolen.

The evidence at trial overwhelmingly implicated Washington as the murderer. The State produced evidence linking Washington's boots to an impression made in a pool of Huling's blood. Willie Hemphill, Washington's neighbor, testified that on January 15 he went with Washington to buy some beer and noticed Washington had a lot of money. Additionally, Hemphill saw Washington with a hunting knife which had a blade consistent with the type of wounds inflicted upon Huling. Maud Swanson also saw Washington on January 15 and testified that he had a lot of money in his billfold when he took it out, and that when she asked him about the murder at the restaurant, Washington said "to hell with Bea, or something like that." Scott Milton, the manager of the restaurant, testified that when Washington picked up his paycheck on the day of the murder he told Milton, "The police are hassling me about this, but I'm too smart for them." Billy and Mary Sandles testified that they heard Washington say, "I killed the b---." A teller at a local bank testified that sometime within a week of the murder, Washington changed $450.00 of small bills and coins for larger bills. An employee of J&J Bail Bond testified that shortly after the murder, Washington paid $468.00 in cash for a bond relating to traffic citations, paying with three hundred dollar bills and the rest in twenties and change.

If first-degree murderers deserve death, then Terry Washington deserved death, because there is little question that he plotted the intentional killing of his co-worker. Look, if you oppose the death penalty, just oppose it. Don't get into this stuff about bad defense lawyers and hard childhoods, etc. — that's an argument for reforming the death-penalty process, not abolishing it. I might be convinced, and so might other people. But you're not going to do it by insinuating that vile murderers aren't really vile murderers because their trials weren't absolutely perfect.


Dear Sir,

I have never bought the argument that some who commit such crimes are guilty and some, by reason of incapacity are not. My problem with the death penalty comes from more serious problems with possibility of executing people who have later been shown not to have committed the crime. Such an act is merely a state-sanctioned murder--even if the trial was fair and unbiased.

I stand opposed to the Death Penalty because we cannot restore life. We can restore freedom and even try to make restitution for unjust imprisonment, but if we unjustly deprive someone of life we cannot rectify the injustice. More, I do buy the Pope's general statement that while the Death penalty may be just in cases where this is the only way to protect society, such cases are so rare as to largely preclude recourse to such extremes. The Pope did not (as some say) outlaw the Death Penalty, but I do think his writings suggest that it can and should be restricted severely in its application.

Thanks for this.



Executing a man who later is found to be innocent isn't state-sponsored murder unless those in authority knew him to be innocent. It is, more properly speaking, state-sponsored manslaughter.

Thanks for the comment, Steven (and I second Coward's comment). Here's the problem: death-penalty opponents have yet to produce even one executed person who was later found to be innocent. They can find dozens of cases where the wrong man was on death row, and was then later released, but that just proves that the system works. That's why the opponents always cite these "questionable" cases instead of innocent victims.

Once or so every year I have a little debate with myself as regards being for or against the death penalty. I have so far come up with reason for being for and against the death penalty, as follows:


1. One can inflict more suffering upon the imprisoned than upon the executed.

2. One can also get more slave labor out of the former than the latter.

3. Finally, and most importantly, it is far more satisfying to exonerate the wrongly convicted from their cells than from their graves.


1. Whatever one can say regarding the death penalty as a deterrant, the rate of repeat crime for criminals who have been executed is acceptably low.

2. Especially in societies where families tend to take matters into their own hands, it is better to execute a few than to permit the continuation of feuds. (Cf: C.S. Lewis)

3. Sometimes the state just has to say: "You! Out of the gene pool!"

Ultimately, though, the best argument against the death penalty I have seen has been Gandalf's in The Fellowship of the Ring.

One other aspect that few people consider is that convicted murderers are often a danger to other inmates. I don't know the exact number, but in the last three decades death-row inmates have murdered dozens of guards and fellow prisoners.

There are interrelated reasons -- good ones in my view, or at least understandable -- why Gonzales and Bush probably took such a "cavalier" attitude toward the clemency process.

(1) The implicit model of executive clemency and other forms of prerogative (from Locke especially, though there are traces of it in Aquinas) is now obsolete. It assumed that the ruler's magistrates would find specific facts and apply general legal rules. And clemency exists, in this model, as a counter-legal option **for the exceptions,** **as judged by the king,** where the law in general runs counter to justice in a specific case. Or to use current lingo: the governor is the one who determines whether extenuating circumstances in a given murderer's case justify clemency.

But that model does not apply to how capital trials and appeals are conducted in this day and age. The Furman and Gregg decisions both explicitly said executions could only be justified in particular cases, not as general rules. So now, every extenuating factor can be brought up at trial for the jury and judge to consider. The penalty is a fact-finding trial in its own right, rather than the straight application of a rule. Appeals to scores of magistrates are allowed, based on issues both brought up AND not brought up at trial. And only one has to succeed, because the state's hands are somewhat tied on appeals. Judges and juries have basically usurped executive prerogative, and so by the time a capital case gets before a governor, he has little left to determine or do.

(2) So many of the bases for these claims are so unquestionably frivolous that they're hard to take seriously (not to mention Hentoff's complaint that so many judges are pro-death penalty. Has he seen some of the rulings of anti-death penalty judges lately?) Noted legal philosopher Chris Rock once said about our attempts to medicalize and rationalize deviant behavior: "what ever happened to 'crazy'?" I'd get sick, too, reading appeals based on mental retardation. Of course, the ACLU, the NAACP et al judge this on the basis of IQ tests, which are absolute racist pseudoscience in discussions of group traits (with a larger sample size and groups for comparison), but are more infallible than the Pope in particular cases (with no real sample at all, no control group and no comparison bases). What ever happened to just being a dumbass criminal? The tactics of anti-death penalty people are becoming so desperate that I'd tune them out too, if I had to listen to it hundreds of times a year. (I have a hard enough time reading newswires containing them.)

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This page contains a single entry by Eric Johnson published on December 8, 2004 12:01 AM.

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