Empathy and the Death Penalty

Is selective empathy better than no empathy at all?

When does a person's history mitigate the violence they committed, and when does it not?

These are the questions asked in a must-read new column by former New York Times Supreme Court reporter Linda Greenhouse.

In her piece, Greeenhouse contrasts two seemingly contradictory opinions handed down in the last month by the U.S. Supreme Court -- one upholding an Ohio death sentence and the other overturning one in Florida.

In a unanimous decision this week, the court overturned the sentence of George Porter Jr. (above left), who killed his former girlfriend and her new lover in 1986. The court ruled that Porter's defense attorney failed to present evidence that he had seen heavy combat in the Korean War -- 33 years before. In an unsigned opinion, the court wrote: “our nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines as Porter did.”

Last month, however, in another unanimous per curium opinion, the Supremes reinstated the death penalty in the case of Robert Van Hook (above right). A lower federal court had found that Van Hook's attorney made a critical error in failing to present mitigating evidence about Van Hook's abusive upbringing. Van Hook is also a military veteran, he was convicted of robbing and killing a man he had met in a gay bar. The Supreme Court disagreed with the lower court and reinstated Van Hook's death sentence.

These two cases are remarkably similar, and Greenhouse is right to ask where the Supreme Court decided to draw the line. She writes:

Setting the Porter and the Van Hook cases side by side, what strikes me is how similarly horrific the two men’s childhoods were — indeed, how common such childhoods were among the hundreds of death-row inmates whose appeals I have read over the years and, I have to assume, among the 3,300 people on death row today. It is fanciful to suppose that each of these defendants had lawyers who made the effort to dig up the details and offer these sorry life stories to the jurors who would weigh their fate.

I don’t make that observation to excuse the crimes of those on death row, but only to underscore the anomaly of the mercy the court bestowed this week on one of that number. Am I glad that a hapless 77-year-old man won’t be put to death by the State of Florida? Yes, I am. Am I concerned about a Supreme Court that dispenses empathy so selectively? Also yes.