Five years into a life sentence for a gang initiation murder, Jessie Con-ui murdered a prison guard. A videotape of the crime, played at Con-ui’s trial, showed him pausing, in the course of stabbing the victim 200 times, to wash his hands and remove a gum packet from the dying guard’s shirt pocket. According to newspaper accounts, Con-ui’s confessed motive for the crime was that the guard had “disrespected” him by searching his cell. Another inmate testified that Con-ui planned the killing to provoke a transfer to a cushier prison. Charged with and convicted of murder, Con-ui escaped a death sentence because one juror “felt bad” for Con-ui’s mother and told others in deliberations, “There’s enough bad things in the world the way it is, and I can’t see taking a life.”

Why does America bother to retain the death penalty? In Con-ui’s case it’s hard to say what box wasn’t checked justifying a death sentence, if ever a crime warrants death. Doubts about guilt or the offense’s gravity? None. Concerns that the defendant’s judgment was impaired by drugs or alcohol? None. Questions about whether the murder was aberrant and not reflective of the defendant’s character? None. There were, of course, “mitigating” factors, vented elaborately at the sentencing hearing—a deprived childhood and a father who sometimes made the defendant sleep in

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