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Death for killer of pregnant mom, children?

Filan: Death penalty for murderer will not achieve justice or relieve pain

Image: Missing kids
The Illinois State Police via AP
An undated photo shows Demond Tunstall, 7; Ivan Tunstall, 2; and Jinella Tunstall, 1.
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Susan Filan
Senior legal analyst

A woman who is accused of cutting a 7-month-old fetus from her friend's womb will face the death penalty.  Tiffany Hall, 24, will also be charged with killing her friend's three other children ages 7, 2 and 1.  Their bodies were found in a washer and dryer, drowned, two days after 23-year-old Jimella Tunstall's body was found in a weedy lot. Ms. Hall allegedly confessed to killing the three children for whom she used to baby-sit. The St. Clair County, Ill., state attorney called the slaying "cold, calculated and premeditated."  

But Illinois has a moratorium on capital punishment since 2000 when the governor put executions on hold. The moratorium has never been lifted. Two questions arise for me in contemplating this heinous case: First, why seek the death penalty if the governor has it on hold? And second, why seek the death penalty at all when, presumably, the reason it is invoked in this case is because a sacred line has been crossed -- the sanctity of life.  When an unborn fetus is slain and innocent children are murdered, the outrage is visceral. But why respond to killing by state-sanctioned killing, particularly in a state where the government is loathe to sanction it?

Most states have the death penalty, but not all do.  Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, Rhode Island, Vermont, West Virginia and Wisconsin do not, according to The Death Penalty Information Center.  New Jersey is in the process of abolishing the death penalty. New York has overturned its law as unconstitutional and has not reinstated it. Eight other states including California, Missouri, Maryland, Florida, North Carolina, Tennessee, Ohio and Delaware have halted the death penalty over the issues raised by lethal injection. Most states use lethal injection as the method of execution, having for the most part abandoned death by electrocution, hanging and the gas chamber.

The debate over capital punishment is an active one throughout this country as each state gets to choose whether to enact the death penalty and which manner of execution to use.   There is a federal death penalty statute for those federal crimes that qualify, thus a person may be executed after a federal conviction in a state that has a constitutional prohibition against the death penalty, such as Michigan. 

The issues raised by the death penalty debate range from arbitrariness to innocence to legal representation to mental illness to morality and fairness. As a former prosecutor I believe I understand the emotion involved in a murder case. I have seen firsthand the rage and fury and grief that families of murder victims express. The pain is indescribable. But I have never understood how killing the killer in return achieves justice or relieves pain. Why isn't life in prison without parole punishment enough? 

If we punish killers, because killing is wrong, why is it right to kill a killer? As shocking and gruesome and cruel as Tiffany Hall's alleged murder of her 23-year-old friend, her 7-month-old fetus, and her three children, isn't killing Tiffany Hall equally wrong?   If Tiffany Hall is convicted, she should spend the rest of her life in prison without parole.   

Some would argue that if the victim was not allowed to live, why should the murderer be allowed to live with "three hots and a cot" for life? We also say that one of the reasons one may not take the law into one's own hands is to prevent vigilante justice based on emotion and a thirst for revenge. We have established a system based on the democratic principal that we leave punishment to be meted out by objective, neutral and independent magistrates who dispassionately dispense justice. Wouldn't this negate the need to kill a killer because a killer has killed?

Some say the death penalty is appropriate in a case like this to send a clear message that this kind of killing is wrong—that it will act as a deterrent. But there have been decades of studies and yet no conclusive proof that the death penalty acts as a deterrent at all.  It is still an open question, and a question that some say may never be answered.

To say "if this case doesn't deserve the death penalty, which case does?" raises the question of who decides what crimes are the worst, and who decides whose murder is worse than the other? This smacks of emotion. The law must be based on reason and rationality. That is why we don't let crime victims determine punishment. They may be heard at sentencing, and their remarks considered, but we don't and can't let crime victims drive the criminal justice system.

So should we make it all or nothing? Either every murder deserves the death penalty, or no murder deserves the death penalty?  This would destroy prosecutorial discretion, which is necessary so that each case can be decided on a case by case basis.  Prosecutors aren't sausage makers.  

Jimella Tunstall, her 7 month old fetus, and her three children deserve justice.  But how does a state-sanctioned killing achieve that? How do two wrongs make a right?

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