One thing about death penalty cases that go on for decades is that you often learn things during the lengthy appellate process that might matter -- to most people, anyway -- about the justice of the sentence and yet that doctrinally are totally irrelevant to proper outcome. Take the case of Edward Schad. He strangled a guy and stole his car. It wasn't the grisliest murder (by far) I've ever seen, nor the most shocking. But it was a murder. So he's sentenced to death. Back in 1979.
His first conviction (and death sentence) was overturned by the Arizona Supreme Court. He's then retried in 1985 and resentenced to death. State appellate, and thereafter state and federal habeas proceedings, take up the next 22 years, at which point he appeals to the Ninth Circuit.
But by then, we know a lot more about the "current" Edward Schad -- the one we'll put to death -- then we knew about this hypothetical person back in the 1980s. There were lots of things, even back then, that might augur strongly in favor of leniency. Even after just six years in prison, here's what we knew:
"At the sentencing hearing, Shaw called fifteen witnesses, including correctional officers, friends, relatives and a psychiatrist. Nearly all of the testimony related to Schad’s good reputation and behavior as an adult, and particularly his good behavior while in prison. A Utah prison official, John Powers, testified regarding Schad’s personal development and conduct while he was incarcerated in Utah state prison after a prior offense. Powers stated that Schad “made some great strides” in the prison’s group therapy program. He also testified that Schad was permitted to be near weapons while working on a renovation project because he “was an excellent security risk.” Powers testified that, in general, Schad was a “model prisoner” while incarcerated in Utah, and that he recommended Schad’s release because he felt Schad was not a danger to the community. One Arizona prison official, Frank Terry, testified that Schad was placed in a relatively lowsecurity prison block because he posed no disciplinary problems or security risks, and another official, Jerry McKeand, elaborated that Schad actually assisted with other prisoners’ disciplinary issues by helping to “keep[ ] the cell block kind
of in line." . . . Ronald Koplitz, the chaplain at Schad’s prison, stated that Schad consulted him for religious guidance due to his fear of death. He testified that Schad stood out from other prisoners because he was likeable and genuine. Koplitz described Schad as “the kind of inmate you can like, and the kind of inmate that does not play games or try to . . . . get extra favors by being in a religious program.”"
Imagine that this type of stuff continues -- indeed, intensifies -- in the next two decades. That Schad becomes even more of a model prisoner; mellower (with age), more regretful, more coherent, more human. What does one do with such knowledge? Ignore it? Say that whatever happens, whatever he becomes, is irrelevant to the determination of whether he lives and dies? Wholly beyond the resulting incentive effects, there seems to be a moral problem with any such position. Even though -- and I fully realize the problem -- the only reason we are able to obtain such knowledge is due to circumstances (delay) that many argue should not even exist.
I certainly don't have a solution to this problem. But it's nonetheless one worth considering. At least for a minute or two over the weekend.
Other than that, enjoy the fun and sun.
