Why Are We Still Deciding Who Lives or Dies?

We all now know capital punishment’s gaping flaws. A CNN ‘Death Row Stories’ documentary airing Sunday asks: Can American voters put a stop to our need for vengeance?

Who should decide whether someone gets to live or die?

This is a question you’re left to answer by the powerful episode “Eye for an Eye” of the CNN series Death Row Stories, executive-produced by Academy Award winners Alex Gibney and Robert Redford.

In this one-hour, true-crime documentary, produced and directed by Steve Rivo, we’re told the story of the mass murder committed by death-row inmate Nathan Dunlap at a Chuck E. Cheese’s in Aurora, Colorado, in 1993. But this case—as these highly charged trials often are—is about much more. These vicious murders and the resulting punishment handed down by a jury are like holding a mirror up to America 2014.

We’re confronted in this film with myriad social problems, including the lack of mental-health treatment available to those can’t afford it, the ability to gain easier access to a gun than cold medicine in America, and the continuing scourge of racism, most recently seen writ large on the streets of Ferguson, Missouri.

Dunlap is a murderer, there is no question about that. But he is a murderer who was abused as a child and suffered from bipolar disorder, which runs in his family. This, of course, was untreated until he reached death row, after which he became a “model inmate.” Because the only time we ever talk about better mental health care in this country is when some right-wing loon’s claiming we should cut it so some suburbanite can get an extra Audi, or after a mass shooting when apparent outpatient Wayne LaPierre applies it as a smokescreen so he can change the conversation to requiring Kalashnikovs for every kindergarten teacher.

We largely have Saint Reagan to thank for the current system, although too many congressional Republicans and Democrats who liked telling their constituents they were cutting taxes—and their funders they were increasing defense spending—make more than a cameo here, too.

Speaking of dearest LaPierre, he and his fellow arms-dealing profiteers, as well as their base of extraordinary gentlemen open-carrying assault rifles into stores to buy boxes of Oreos, have made sure over the past 30 years that the Dunlaps of this world have easy access to this weaponry for any act of barbarism in which they wish to engage. Let’s be clear: It still takes one willing to murder, as Dunlap was and for which he must be held to account. But it would have been harder with hammers. So would have a recent mass murder in Aurora that occurred in a movie theater in 2012. Sadly, you’ve probably heard of that one.

There’s also the fact that Dunlap is black, as are the two other men on death row in Colorado. In a state that is overwhelmingly not black. They all went to the same high school and had the same prosecutor, who seems so enthusiastic and untroubled by using the state to kill people in “Eye for an Eye” that you just get the feeling he could become quick hunting buddies with Antonin Scalia.

You know Scalia, the Supreme Court justice who declared Henry McCollum as a justification for using a “lethal injection” when he declined to review his murder conviction in 1994. The same McCollum who DNA evidence just cleared after he spent 30 years of his life on death row.

But where Rivo perhaps accomplishes his most impressive feat, is in an interview with current Colorado Gov. John Hickenlooper, who got a bit ahead of himself on the death penalty (he ran in 2010 as a supporter). Hickenlooper had granted Dunlap a temporary reprieve in 2013, which amounted to a half-measure that made nobody happy. But in his interview with Rivo, the governor, who is running for reelection, came out pretty strongly against the death penalty, and admitted he might grant clemency to Dunlap if he lost his reelection battle.

According to Colorado journalist David Sirota, who is interviewed in the short film, “His opponents see an opportunity to demagogue the issue for their own electoral gain. The question now is: Will Colorado voters punish the governor for his decision, or will they acknowledge the inherent and obvious problems with capital punishment?”

This is, in the end, an important question. Can voters get beyond emotion and ask themselves the kinds of questions we would hope they would in a democracy, about justice vs. vengeance, and what effect key factors such as race and mental health have in many of these cases?

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We’ve learned a lot since DNA testing has become a reality. And we’re learning more about other aspects of science that should give us pause. Former prosecutor Mark Godsey, director of the Global Study of Wrongful Convictions and the Ohio Innocence Project, is writing a book on the new science surrounding faulty eyewitness testimony.

According to Godsey, “We’ve realized that eyewitness identification is far more unreliable than most realize. In fact, it’s the leading cause of wrongful conviction, and was a contributing factor in 75 percent of wrongful conviction cases.” That may not keep Rick Perry up at night. But it should.

Meanwhile, you can stay up 10 p.m. or 12 a.m. ET this Sunday, Sept. 10, and watch this fascinating story on CNN and ponder who should decide if another person lives or dies.