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April 24, 2010

Shouldn't we celebrate condemn's request that he "would like the firing squad, please"?

I am intrigued by the media attention being given to a Utah death row defendant's decision to select the firing squad as a method for his execution.  Here are the details from this Salt Lake Tribune account:

Shackled at his ankles and wrists and wearing an orange jump suit, Ronnie Lee Gardner leaned forward in his chair Friday and uttered seven words that will place Utah in the international spotlight. "I would like the firing squad, please," Gardner said, his voice choking up.

Choosing bullets over lethal injection may have nothing to do with making headlines for Utah -- the first state to execute a killer after the U.S. Supreme Court reinstated the death penalty in 1976 and the only to allow inmates to die by firing squad. Gardner's cousin, Jerry Hainsworth, said Gardner told him a few years ago: "I'd rather do it that way because I've been shot a bunch of times."

That includes a bullet wound suffered during Gardner's 1985 escape attempt from the since demolished Salt Lake County courthouse.  Police shot Gardner in the neck while trying to apprehend him after he escaped from prison in 1981.  Hainsworth said Gardner was shot in the leg with a .22-caliber rifle as a child, was once wounded in a shootout with a brother-in-law, and once accidently shot himself in the thigh.

After hearing Gardner's request, 3rd District Court Judge Robin Reese on Friday signed a death warrant setting his execution date for June 18.  The judge rejected Gardner's latest appeal of his 1985 death sentence minutes earlier, leaving a Utah Supreme Court appeal or a commutation from the Utah Board of Pardons as Gardner's only chances to avoid death.

Already on Friday opponents of capital punishment were anticipating the intense scrutiny Gardner's death would generate for Utah. "It's so unusual and harks back to a whole other era," said Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C. "This is a spectacle in a sense."

The last Utah inmate to die by firing squad was John Albert Taylor in 1996, who said he selected the method to embarrass the state. Satellite trucks filled a large parking lot near the state prison in Draper.  Jack Ford, who was then the Utah Department of Corrections spokesman, on Friday read a list of reporters, photographers and other media personnel who were on the prison grounds. Ford estimated there were 150 media personnel in all, including major American news outlets and journalists from Great Britain, Denmark, Italy and Australia....

The current Corrections spokesman, Steve Gehrke, said as of Friday afternoon he had already received inquiries from several national media outlets.  Visiting reporters will find the firing squad still has its proponents among Utah lawmakers.

 In 2004, when the Legislature was debating whether to eliminate the firing squad, then-Sen. David Thomas, R-South Weber, and others like him supported keeping the method.  "I know there are a lot who suggest getting rid of firing squad is more humane but we've had the firing squad since statehood and it's effective," Thomas told The Salt Lake Tribune Friday.

Unless and until a state eliminates the death penalty altogether, it seems to me that letting a condemned man selected the method for his execution is more humane (and respectful of his continuing autonomy) that is forcing him to be exectued a particular way.  In addition, given all the evidence developed by the defense bar that a three-drug lethal injection protocol can be botched in a manner which can be torturous for the condemned, this choice by Gardner seems sound and sensible in light of what we have come to learn about his other execution option. 

April 24, 2010 at 02:17 PM | Permalink

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Doug,
How many inmates have been "tortured" since states starting using LI? Anykind of medical procedure can be "botched". The other day a doctor accidentally killed the wrong fetus when he was operating on a woman with twins in her womb.

Posted by: DaveP | Apr 24, 2010 2:28:35 PM

Hehe, maybe it's part of the appeal. I think Ohio would constitute this method un-constitutional way to execute, and part of his process would just eliminate the execution in whole.

Posted by: N/A | Apr 24, 2010 2:53:13 PM

Inmates should be allowed to choose their method of execution. They should be allowed, encouraged, and enabled with supplies, to commit suicide.

Those who oppose such choice likely see it as a punishment. It won't deter or reduce behavior, it will eliminate all behvavior. Only a lawyer dumbass could see it as a punishment, and not what it really is, final incapacitation. If the lawyer dumbass proposes it as a deterrent (social learning from seeing another punished), that is unlawful, to punish someone to prevent the speculative crimes of others into the speculative future.

Retribution comes from the Bible and violates the Establishment Clause. The lawyer dumbass cannot grasp that simple fact. Without getting personal, its strongest advocates tend to be highly observant, religious extremists.

Once the sole mature goal of the criminal law, incapacitation, is accepted, the death penalty can churn away, and eliminate crime by attrition of the violent birth cohort, and at the earliest age palatable to the public. The earlier, the larger the number of criminal victimizations that do not take place.

Posted by: Supremacy Claus | Apr 24, 2010 4:04:27 PM

One thing you have to credit Gardner with is guts. Unlike some of these inmates crying about allergies and a couple of needle pricks in their arm.

Posted by: DaveP | Apr 24, 2010 5:28:23 PM

I think that the execution by firing squad should take place at high noon and be televised. I don't know what other states do but in NC, executions take place at two oclock in the morning. If a majority of Americans are in favor of executions, then, in my opinion, they should have to look at it.

bruce cunningham

Posted by: bruce cunningham | Apr 24, 2010 6:06:16 PM

bruce, do you eat meat--if so, do you visit the slaughterhouse?

It's always interesting to see the holier than thou crowd in action. One does not have to witness an execution to know that it's the right thing to do to some murdering scum.

Posted by: federalist | Apr 24, 2010 6:48:52 PM

LOL, it's only an execution of a piece of meat in a slaughter house.

Posted by: George | Apr 24, 2010 7:53:18 PM

What part of the Constitution authorizes the government to compel citizens to watch anything?

Posted by: Bill Otis | Apr 24, 2010 8:04:41 PM

On the other hand, if the government has that type of power, I suggest we compel each capital defense lawyer to hang in his children's bedrooms the autopsy photos of the ten year-old his client bludgeoned to death. In color, please.

If we want people to be forced to see the violence involved in capital cases, let's start at the beginning. It will, ya know, kinda give some context to the end.

Posted by: Bill Otis | Apr 24, 2010 8:16:48 PM

Public Trial

The Sixth's fair and open case law. Where in the Constitution does it say a criminal proceeding is over when a sentence is pronounced? Maybe it it isn't over until the sentence is carried out, and so all of that should be fair and open to the public, including prison conditions.

Posted by: George | Apr 24, 2010 8:24:32 PM

Dr. George --

Assuming arguendo that the public has a Sixth Amendment RIGHT to attend, that hardly means it can be REQUIRED to attend (or watch), which is what bruce was suggesting ("If a majority of Americans are in favor of executions, then, in my opinion, they should HAVE TO look at it.") (Emphasis added). To the contrary, under the First Amendment, people can pay attention to, or decline to pay attention to, what they choose, not what the government chooses for them.

Posted by: Bill Otis | Apr 24, 2010 8:43:08 PM

I oppose public execution.

1) It glamorizes murder, and provides attention and publicity, both highly rewarding to the criminal.

2) It starts a contagion. After the posting of Saddam's execution, dozens of people who watched it, hanged themselves. The execution may open people's eyes to death as a remedy for their problems.

3) The humiliation may be crueler than death or the method of execution.

Posted by: Supremacy Claus | Apr 24, 2010 9:19:18 PM

Mr. Bill, how do you read "take place at high noon and be televised" as forcing all the people to watch it? I read it as the carriers of public airways should be forced to air it. People can watch it or not depending on if the pizza and beer and Viagra arrive on time.

Posted by: George | Apr 24, 2010 9:34:16 PM

Dr. George --

"Mr. Bill, how do you read 'take place at high noon and be televised' as forcing all the people to watch it?"

By going to the next sentence down, which states, "If a majority of Americans are in favor of executions, then, in my opinion, they should have to look at it."

It's the "majority of Americans" who "should have to look at it." These are bruce's own words.

Still, if you want to send over some pizza, thanks very much. I'll only be watching the NBA playoffs, since my tastes, unlike Ronnie Lee Gardner's, are pretty tame.


Posted by: Bill Otis | Apr 24, 2010 10:10:08 PM

If a justification for capital punishment is that it acts as a deterrent to others, then it would seem that the deterrent effect of the death penalty would be enhanced by carrying out executions in public. For centuries executions were public. I wonder when they became otherwise. My sense is that it was when folks became conflicted about how they felt about capital punishment and preferred to not have to be confronted with the reality of what was being done.

One of the many things that bothers me about the government being in the killing business is the emotional detachment that comes with institutionalizing execution. Ten years ago I met with the prison warden in Raleigh about the sequence of events associated with the execution of one of my clients. The warden ticked off a checklist of things: last meal, family visitation, moving to death watch area, gathering personal belongings, claiming body, etc. Later, it occurred to me that missing from the checklist was "then we kill him." I suspect that the warden leaves out the most important step as a way of avoiding reality. The "problem" with living in a democracy is that we are responsible for the decisions of our government. Unlike in monarchies or dictatorships, if a majority of folks don't approve of capital punishment, then it is abolished. If a majority thinks it is a good thing that is being done, then they should be able to view their work, if they choose.

I'm surprised Supremacy Claus opposed public executions. I would have thought just the opposite.

No, Bill, I did not mean to suggest that people be forced to watch.

bruce

Posted by: bruce cunningham | Apr 24, 2010 10:39:19 PM

"On the other hand, if the government has that type of power, I suggest we compel each capital defense lawyer to hang in his children's bedrooms the autopsy photos of the ten year-old his client bludgeoned to death. In color, please.

If we want people to be forced to see the violence involved in capital cases, let's start at the beginning. It will, ya know, kinda give some context to the end."

Do you wish to do away with our adversarial system of criminal justice? You do seem to harbor a great deal of hostility toward the defense bar, my friend. The accused is entitled to put the State to the test, and he or she is entitled to the assistance of competent counsel in doing so. Irrespective of whether or not the defendant is guilty (or innocent, for that matter), a defense attorney has an unqualified obligation to challenge the strength of the government's evidence at trial. That is our criminal justice system. It undoubtedly has its faults, but it's still quite impressive.

Posted by: JC | Apr 24, 2010 10:45:51 PM

Really what does it matter to a person how they are executed? As long as it's humane and relatively painless, who cares how they're killed? Studies have show lethal injection and gas chambers are both painless. States should just enacted one of them as the only method. I say lethal inject because it's cheaper. Though with some crimes I still think pain should be a factor in determining punishment: http://lawblog.legalmatch.com/2010/04/21/more-trouble-for-the-boy-scouts/

Chemical castration anyone?

Posted by: Carlito | Apr 24, 2010 11:34:49 PM

"Studies have show lethal injection and gas chambers are both painless."

Execution by gas chamber is brutal and unconscionable. No reasonable person could seriously claim that the gas chamber is painless.

Posted by: JC | Apr 25, 2010 12:16:34 AM

Bruce: Correct me. You have done defense work in death penalty cases. Have you ever tried this or heard of anyone else's trying this?

In his opening or closing statement, the prosecutor asks the jury to "send a message." You leap up, and move for a mistrial, asking for all legal costs from the personal assets of the prosecutor. If the prosecutor wants to send a message, he should buy ad space. To put a person on trial to send a message to others not in the case, but in the future, committing speculative crimes, that have not yet occurred, isn't that an improper motive needing to be sanctioned? To send a message to prosecutors?

Deterring the future crimes of the defendant is a proper motive. That is why LWOP is a bad idea, since it immunizes all additional crimes.

Posted by: Supremacy Claus | Apr 25, 2010 5:19:16 AM

Yes, I have represented defendant's charged with first degree murder for over thirty years. You have asked two questions and I'll respond to both.

No, if the prosecutor asks the jury to send a message, I would not jump up and ask for a mistrial. I would, and have, respond that I also want the jury to send a message. A message that if a juror is given a choice between life and death they should choose life. I look them straight in the eye and say they are about to exercise the most important, most powerful decision they have ever made and will ever make in their life. They are going to decide if someone lives or dies. They are going to sit in judgment over another person's life.

Generally speaking, jurors take their responsbilities very seriously. Many, many times during jury selection a juror will say "I believe in the death penalty but I don't think I could be the one who would say someone should die."


Then, as you suggest, I would remind the jury that the alternative to death by execution is what inmates call a "slow death sentence." Life without parole. Many jurors believe that life without parole is more severe than execution. So, if the prosecutor argues to send a message about the severe punishment that should be imposed upon a conviction of murder, I don't respond by playing games. I up the ante.

On your other question, about whether I have considered asking for a public execution. Yes I have. Did I do it? No. What happened in a case is the State set an execution date for my client, who was the first African American defendant scheduled to be executed since reinstatement of the death penalty. Several weeks later, without any action on my part, a new date was set. Obviously, someone at the prison realized that the date selected was Martin Luther King's birthday and it would be "politically" in poor taste to hold the execution of a black man on that date.

I considered responding to a political faux pas with a request that the execution be televised. If the date was being postponed for appearances and political reasons, then the def should be entitled to respond with considerations of appearances and politics.

I didn't follow through because my client's daughter had decided to attend the execution. She had done nothing that warranted the infliction of a lifelong scar on her of having to watch her father die. She was young, mid=twenties and sat in the execution room for ten minutes watching until she bolted out sobbing uncontrollably.

I get the sense that a lot of the commenters who express strong opinions on Doug's excellent blog have little or no practical experience in the criminal justice system. Some may not be lawyers. They don't realize what I think is the truth. Who gets the death penalty does not depend on what they have done. It depends more on the county in which they did it, the race of the victim and the skill of the defense lawyer.

Thank you for the serious question.

bruce

Posted by: bruce cunningham | Apr 25, 2010 9:24:31 AM

JC --

I suggested that defense counsel be compelled to hang in their childrens' bedrooms autopsy pictures of the person their client had bludgeoned to death as a counterpoint to bruce's suggestion that people "should have to look at" the killer's execution. More broadly, I suggested it to make the point that it is wildly unbalanced to look only at the result (the execution) while keeping the cause (the murder) out of sight.

If we're going to look at the picture, let's look at the WHOLE picture. That is hardly an attack on the adversary system.

In fact, I do not believe either that defense counsel can or should be forced to hang any pictures in their own house, nor do I believe that the public can or should be required to watch executions. But I also do not believe it's a bit honest to talk about the details of the execution without talking about the details of the killing.

Twelve ordinary citizens who presumably care about doing the right thing as much as you or I do simply do not unanimously send a defendant to the death house without reason. It is past time on this blog to have a full discussion of what those reasons are. And that means discussing murders, not just executions.

Posted by: Bill Otis | Apr 25, 2010 9:55:40 AM

Bill, pictures of the victims are burned in my brain. I don't have to hang them on my bedroom wall.

I said I thought that the people who are in favor of capital punishment should have to face the reality of what they are advocating for. Obviously, if they don't want to, there is nothing that can be done about that. Seems to me decision-making should be made with a conscious awareness of the results of the decision.

Bruce

Posted by: bruce cunningham | Apr 25, 2010 10:33:06 AM

Bruce: Although I favor the death penalty, I can suggest arguments for the other side. We share support for the constitution.

I do not see how these could be overlooked, their being simple, easy, obvious.

1) Deterrence. It violates due process right to a fair hearing. It is rare that a person is punished to scare another into not doing harm, unless that person has control of the other person. It is unfair to say, we are fining you $100 to deter the speeding of others. That may take place. It may be a good thing at a policy level. At the trial level, it violates due process. It is an improper motive. I think, if you jumped up with a gotcha as described above, people would learn, don't mess with the Bruce. He will come up with stuff never done before. You would be deterring the prosecution in future trials. You would get better offers. It is proper motive to fine you $100 for speeding to deter your own future behavior, but not that of others. In the case of the death penalty, it is not a punishment. It is an expulsion. Punishment is defined as a consequence likely to reduce the frequency of behavior. The dead have no behavior, and the death penalty is not a punishment.

Most of us are deterred by empathy. We do not kill to get $5 because we would watch someone suffer. So most criminals are weak in the area of empathy. Next, half the murderers and half the murder victims are legally drunk. If you prevent intoxication, you could prevent half the murders. If you do not like punishing people addicted to alcohol, force them into treatment. Jail is much easier than treatment. By forcing a reduction in drunkenness, you get many other benefits, such as a drop in accidents, suicide (30,000/year), health costs (100,000 deaths/year), all other crime. Forced treatment for substance abuse is the sole way to get deterrence. It is lawful. It deters the defendant, not a stranger committing a speculative crime in the speculative future.

2) Set Date. Given the rough way 90% of us will die, there is very little cruelty in any execution methods. Once my fate has been set, I would take execution for myself. It is analogous to a hopeless position in a chess match. You concede rather than enduring every move toward check mate. There is a cruelty in the death penalty even the most moribund patient does not endure. The date. In Japan, the date is announced the day of the execution, and that is more natural, less anxiety provoking, as the person sits counting down. Never saw that argument in an appeal. It is not frivolous, as a complaint the drug is not FDA approved for use in execution, especially when already reviewed and decided. If this argument is upheld, it will cause a moratorium on the death penalty until the laws of the states are amended.

3) Standard of jurisprudence care in the criminal law. You may think of Japan as setting the standard of due care in the criminal law. This is not mandatory, but morally and philosophically compelling, "What works." They have very little crime, and their methods are competent. They are much more physical and brutal. We are tough on victims, soft on crime. They are soft on victims, tough on crime. Anything they do therefore sets a standard of jurisprudence care. Rummaging through their procedures may yield new arguments. (They are a markedly underlawyered country, as well. Think of the top 5% of our law graduates. They would be the only ones getting the law license. The number of law students is unlimited.)

http://search.japantimes.co.jp/cgi-bin/nn20080318i1.html

Somehow, our Justices summer only in Europe to return here with their horrible legal ideas. They should summer in Japan and China for a change of pace.

Posted by: Supremacy Claus | Apr 25, 2010 10:34:13 AM

Bill, I just went back and read your initial suggestion that I traumatize my ten year old by showing him or her autopsy photos. No responsible parent would do such a thing. I thought you were talking about me confronting the impact on the victim.

bruce

Posted by: bruce cunningham | Apr 25, 2010 10:36:43 AM

"A message that if a juror is given a choice between life and death they should choose life. I look them straight in the eye and say they are about to exercise the most important, most powerful decision they have ever made and will ever make in their life. They are going to decide if someone lives or dies. They are going to sit in judgment over another person's life."

Good grief. Bruce, do you realize how silly that sounds? First of all, saying that they are going to "decide if someone lives or dies" really doesn't get at the crux of the decision, just as saying they are going to decide if someone is free or not. gee, what a surprise, more sophistry from a defense attorney. Second of all, the decision whether to condemn a capital murderer to death isn't the most important decision in one's life--whom to marry, how many kids to have, what career to seek, etc. are far more important decisions than whether some murderer gets to live out his days in prison or will be executed.

And then there's this: "Who gets the death penalty does not depend on what they have done. It depends more on the county in which they did it, the race of the victim and the skill of the defense lawyer."

More sophistry. Putting aside innocence issues, you cannot be sentenced to death unless you commit a capital crime. Thus, getting the death penalty DOES depend on what they have done. Second, are you really insinuating that, for example, murderers in Cali can complain because the death penalty is off the table in San Francisco.

Posted by: federalist | Apr 25, 2010 11:14:16 AM

The adversary system violates the Establishment Clause. It comes from the disputation method of reaching some answer in Scholasticism. OK in 1270 AD, out of the question as an investigatory method today.

1) Imagine a Koran based jurisprudence. I read their hornbook. 90% of it is pretty good. Still, it would be appalling and unlawful to have legal procedures taken from there. There is a lot of church in the court, the architecture, the robes, the gavel, the high bench, the oaths, the standing upon judge entering the room, the pews, the stentorian tones, the high ceilings, the dressing up as if going to church on Sunday.

2) They got an answer, alright, but 100% of the time, it was incorrect by today's standards. There are no validity statistics to support this bonehead method. There are not even reliability (repeatability) statistics to support it.

3) Twelve strangers, using their gut feelings to detect the truth, will detect only likability, of the defendant, the witnesses, the lawyers, the judge's expressions of preference.

4) Rarity. Because over 95% of cases are settled by an agreement, the trial is a privilege of the rich. The trial, in practice, violates the Equal Protection Clause of the Fifth Amendment for everyone coerced into a plea agreement.

5) To avoid the expense of a trial, the prosecution will use progressively coercive and intimidating tactics to get a plea agreement, even one completely unrelated to the original charge. Such coercion violates the presumption of innocence and subjects the defendant to extra-judicial punishment.

6) The person with the most experience in the court is the judge. He is prohibited from investigating for himself. Should he drive to the scene of the crime, just to get an idea, he will be impeached. This is so the lawyer gets its trial billing. The trial is therefore to generate income, not to arrive at any truth. The argument against inquisitorial judges is that they are biased in favor of the prosecution. They will relate better to police of their race, age, and sex. If evidence of such bias can be found, the judge should be impeached.

7) The jury brings the wisdom of the crowd. This benefit is completely negated by 1) excluding any juror with knowledge; 2) allowing open voting and debate after the first secret ballot, all subsequent votes reflecting the decision of the juror who is loudest, and the rest wanting only to go home. There should be only one secret jury vote.

Posted by: Supremacy Claus | Apr 25, 2010 11:33:35 AM

Why does anyone respond to Bill? Anyone who reads this blog regularly knows the type of response it is going to engender. It just ends up cluttering up the comments section with irrelevant nonsense. Please, do the rest of us a favor and just let his comments go. (At least people have seemed to finally learn with SupremacyClause.)

Thanks,
Long time reader

Posted by: Question | Apr 25, 2010 2:14:32 PM

"First of all, saying that they are going to "decide if someone lives or dies" really doesn't get at the crux of the decision, just as saying they are going to decide if someone is free or not."

Were you able to keep a straight face while you were typing that? That one deserves an honorary Doctor of Sophistry from the University of Complete and Total Nonsense. You should consider changing your screen name to "Federalist, D.Soph."

Posted by: JC | Apr 25, 2010 2:14:50 PM

Question. Even as a liberal, tell me you have not learned anything from me that is not appellate brief ready. I am the ambassador from Earth to this lawyer Twilight Zone. The small dose of reality I bring here is making you sick.

The lawyer is in denial about the cult nature of the profession, its unlawful supernatural doctrines, and the failure to meet every self-stated goal of every law subject. Everyone in the public knows this. The lawyer does not.

Shunning is cult.

There is no bigger troll for our nation than the lawyer.

Posted by: Supremacy Claus | Apr 25, 2010 2:39:24 PM

JC, it's painfully apparent that you have an inability to see the issue for what it is. The issue is not "decid[ing] if someone lives or dies", but deciding whether someone who has committed capital murder lives or dies. There's a lot in that omission. Perhaps you think that a juror exercising this power in a capital murder case is akin to a despot having the power of life or death--most of us don't.

Posted by: federalist | Apr 25, 2010 2:40:56 PM

Fed: What do you think is the rate of false guilty verdicts? If beyond a reasonable doubt means about 80% certainty, is that enough certainty for death penalty verdicts? Could this fraction be improved by making the court liable for its mistakes, not in a strict liability sense, but in a professional standards sense?

By the way, the verdict meets all criteria for strict liability exposure, as a product dangerous in its ordinary use, requiring the producer to take every possible precaution.

I would also enjoy seeing government defunded by class action litigation, as it seeks to defund all productive entities in its attempt at a Communist takeover of the economy. Tort litigation would be preferable to violence (see the Civil War).

Lastly, the court's self dealt immunity is full moral and intellectual justification for violent self-help by the victims of its carelessness. Tort liability would increase its physical safety.

Posted by: Supremacy Claus | Apr 25, 2010 2:53:37 PM

Prof. Berman,

You appear to be a very logical idiot.

Posted by: Walter | Apr 25, 2010 3:10:34 PM

Question __

I think your analysis could use to be a bit more specific there in Step B.

Posted by: Bill Otis | Apr 25, 2010 3:12:59 PM

Bruce --

"Bill, pictures of the victims are burned in my brain."

What operational difference has that made in your practice? Has it ever inspired you to say to a client, "Do you have a grasp on the suffering you caused the victim? His kids? Have you thought about owning up to it rather than seeing how much dust we can kick up?"

"I said I thought that the people who are in favor of capital punishment should have to face the reality of what they are advocating for."

Should those OPPOSED to capital punishment have to face the reality that a refusal to impose to death penalty is the predicate to the murders of yet more innocent people? Exactly that happened in Allen v. Woodford, 395 F.3d 979 (9th Cir. 2005), in which Clinton-appointed Judge Kim Wardlaw ended the Court's unanimous opinion with these words:

"Evidence of Allen's guilt is overwhelming. Given the nature of his crimes, sentencing him to another life term would achieve none of the traditional purposes underlying punishment. Allen continues to pose a threat to society, indeed to those very persons who testified against him in the Fran's Market triple-murder trial here at issue, and has proven that he is beyond rehabilitation. He has shown himself more than capable of arranging murders from behind bars. If the death penalty is to serve any purpose at all, it is to prevent the very sort of murderous conduct for which Allen was convicted."

All this was after Allen had escaped the death penalty for an earlier capital murder and was "safely" behind bars.

And then there was the case of Kenneth McDuff, who escaped the death penalty after Furman came down, and went on to kill at least four, and more likely a dozen, additional people.

Do they count?

Over the last few years, 25 independent academic studies have been done on the death penalty and deterrence. They are collected here: http://www.cjlf.org/deathpenalty/DPDeterrence.htm. Every one of them concludes that the DP deters murder. Some have been criticized as defecient or misinformed. Many have not. What do you think the chances are that ALL of them are wrong?

I support preserving the option for the jury to impose death because, among other things: (1) it is the only punishment that even remotely reflects justice for some grotesque or sadistic murders; (2) the evidence that it saves lives by deterrence is at this point overwhelming; and (3) it is the response of a justly morally confident nation to crimes grossly outside accepted norms of civilized behavior. Having worked in the system for about as long as you have, I also reject the idea that jurors are a bunch of yahoos and/or racist thugs who choose to impose the death penalty because they hate minorities. They are no such thing.

I likewise reject the notion that I or others who support capital punishment, ranging from Abraham Lincoln to Barack Obama, and consisting of a large majority of your fellow citizens, believe as we do without "conscious awareness of the results of [our] decision."

Posted by: Bill Otis | Apr 25, 2010 4:04:44 PM

"JC, it's painfully apparent that you have an inability to see the issue for what it is. The issue is not "decid[ing] if someone lives or dies", but deciding whether someone who has committed capital murder lives or dies. There's a lot in that omission. Perhaps you think that a juror exercising this power in a capital murder case is akin to a despot having the power of life or death--most of us don't."

What's painfully apparent is the fact that you are actually trying to defend a completely indefensible statement. Bruce's initial comments do not even remotely warrant the characterization that you are now attempting to attribute to them. You already knew that, of course, but under the circumstances I don't see any harm in pointing out the obvious.

Posted by: JC | Apr 25, 2010 4:15:30 PM

This discussion has certainly digressed but I can't let Bill's comment about racial issues not being part of the reality of death penalty trials go unanswered. In my last trial seven jurors were removed because they felt interracial relationships were contrary to the Bible. In the capital trial before that a juror was excused when I asked if any juror had any reason they felt they shouldn't serve. One candid fellow said, "It won't do him any good for me to be on the jury. He's black, I'm white and I'm prejudiced."

bruce

Posted by: bruce cunningham | Apr 25, 2010 5:03:04 PM

bruce --

What I said was, '"I also reject the idea that jurors are a bunch of yahoos and/or racist thugs who choose to impose the death penalty because they hate minorities. They are no such thing."

Neither I nor any serious person believes that racism or anti-Semitism has vanished from the world. But your comment above falls short of demonstrating the jurors would, out of racial animosity, GIVE A DEATH SENTENCE to a person they otherwise would have spared.

Having read the Fourth Circuit opinion in which you represented a black who was sentenced to death, I would like to put up here the Court's description of what your client did, and let people draw their own conclusion about whether it was his race or his behavior that got him executed.

I will not post the excerpt, however, without your permission. I was able to find it only because you are among those who don't hide out and who will use your true name. I decline to punish good behavior. However, if I publish the facts, I do not believe it will be to the advantage of abolitionism.

I appreciate your informed perspective and professional demeanor. But I am quite sure you are wrong about this. The death penalty saves lives, both directly (see Allen and McDuff) and through deterrence.

Posted by: Bill Otis | Apr 25, 2010 5:23:45 PM

JC, by excising out a critical fact, i.e., why the defendant is facing a jury with the power of life or death, bruce not too subtly changes the framing of the issue. If you cannot see that, you are either obtuse or dumb. Which is it?

The bottom line, JC, is that when you talk in terms of "life and death" without specifying why the defendant is in that position, you don't differentiate between the despot and the citizen pressed into service to the polity in order to determine what is just. Forgive me for noticing the lack of differentiation.

Posted by: federalist | Apr 25, 2010 7:29:05 PM

"JC, by excising out a critical fact, i.e., why the defendant is facing a jury with the power of life or death, bruce not too subtly changes the framing of the issue. If you cannot see that, you are either obtuse or dumb. Which is it?

The bottom line, JC, is that when you talk in terms of "life and death" without specifying why the defendant is in that position, you don't differentiate between the despot and the citizen pressed into service to the polity in order to determine what is just. Forgive me for noticing the lack of differentiation."

Oh, I'm sorry. I didn't realize that Bruce was talking about choosing between life and death at one of Sarah Palin's death panels. I was confused by the fact that he's a capital defense attorney talking about capital trials on a blog devoted to criminal sentencing. Please excuse my ignorance.

P.S.

Being dumb and being obtuse are synonymous, genius.

Posted by: JC | Apr 25, 2010 8:18:53 PM

Good grief, JC. I think obtuse describes you better than dumb (obtuse can have a connotation of wilfullness). Bruce is telling US what he tells the jury. And what he tells the jury is deliberate--he doesn't want them focusing on the why they are in that position--he wants them to focus on the natural recoil anyone would feel with having the life of another in their hands. I get why he does that, but (a) I don't have to like it and (b) like I said, it's certainly less than the whole story. And his position as a capital defense attorney doesn't supply the context. There's something missing from bruce's plea--namely what the guy did to make the capital trial a necessity.

JC, please tell me you're not so dumb as to not see the intellectual dishonesty here.

Posted by: federalist | Apr 25, 2010 10:27:21 PM

Bill, I make no contention that in the David Brown case the race of the defendant or the race of the victim played a role in the decision of the jury to impose a sentence of death.

bruce

Posted by: bruce cunningham | Apr 25, 2010 10:38:32 PM

The reason Mr. Bill suggests crime scene photos, as if we couldn't find any on TV at any hour, is because Mr. Bill is a propagandist.

Joe Keohane: The crime wave in our heads

The implications for the country at large are stark. Democracy is based on an informed public calling upon its representatives to address problems facing their society. If we believe crime is on the march in the streets all over the country, it influences our beliefs on critical issues from gun control to sentencing laws, from how we run our prisons to how much money we spend on law enforcement. Misinformation on the part of the public makes for bad lawmaking on the part of the government.

How did we get this idea in our heads? Why do we persist in believing the United States is inexorably sliding into lawlessness when we should be rejoicing that exactly the opposite is happening? The short answer is that we've been taking our cues on crime from a host of things that are both abstract and wholly unrelated to crime. And perhaps, by understanding why we've come to believe what we believe, we can take some steps toward mending our relationship with reality.

See also Television's Crime Wave.

The real propaganda is that tough-on-crime is far from that wimpy socialism. It's tough. Who needs mousy nurse-like prevention and rehabilitation when you got bullets and the needle?

Posted by: George | Apr 25, 2010 11:23:32 PM

"Good grief, JC. I think obtuse describes you better than dumb (obtuse can have a connotation of wilfullness). Bruce is telling US what he tells the jury. And what he tells the jury is deliberate--he doesn't want them focusing on the why they are in that position--he wants them to focus on the natural recoil anyone would feel with having the life of another in their hands. I get why he does that, but (a) I don't have to like it and (b) like I said, it's certainly less than the whole story. And his position as a capital defense attorney doesn't supply the context. There's something missing from bruce's plea--namely what the guy did to make the capital trial a necessity.

JC, please tell me you're not so dumb as to not see the intellectual dishonesty here."

I fail to see exactly how Bruce's position is intellectually dishonest in any way. Please enlighten us, federalist.

Posted by: JC | Apr 26, 2010 12:40:53 AM

JC, I can explain it to you, I cannot understand it for you. But I'll try one more time--this time by repeating the analogy above.

It's as dishonest as characterizing a jury's guilt/innocence determination thusly: "You have the power of freedom--choose freedom." It's true, but not the whole story. Divorcing the life and death decision from what the defendant did is also not the whole story.

Posted by: federalist | Apr 26, 2010 8:25:23 AM

Several references here to decisions by "juries" and "unanimous juries." I'd just like to note for the record that in at least one state - Alabama - a death sentence does not require the vote of even 1 juror, let alone all of them. In fact, around 40 of the 200-some inmates on Alabama's death row were sentenced to death by judges after at least 7 jurors voted for life. The number with non-unanimous (10-2 or 11-1) death verdicts from their juries is probably closer to half. This unique set of circumstances helps account for Alabama leading the nation in per capita death sentences... I know some of you know this, but I thought it might be useful for a casual reader to know that not every state requires a unanimous jury in capital sentencing.

Posted by: Southerner | Apr 26, 2010 10:05:39 AM

celebrate?

Posted by: dch | Apr 26, 2010 10:06:08 AM

George --

"The reason Mr. Bill suggests crime scene photos, as if we couldn't find any on TV at any hour, is because Mr. Bill is a propagandist."

I keep trying to reach Kieth Olberman levels, but I'm not even close.

Actually, George, I never suggested crime scene photos. As a counterweight to Bruce's suggestion that the majority in favor of the DP should have to watch this Utah firing squad, I suggesed, to balance the scales, that capital defense lawyers should have to bring home autopsy photos of the people their clients bludgeoned to death. If we're going to eyeball the result (the execution), then let's give equal attention to the cause (the murder).

What's your objection to that, and why is that propaganda?

Still, I read the Dallas Morning News op-ed you linked. I particularly noticed this part:

"The murder rate rose and fell over the 20th century, climbing to an early peak in 1933, then dropping sharply and staying low through the Depression, World War II and into the 1960s. It rose to a record level in 1974, broke that record in 1980, and stayed prodigiously bloody through the early '90s.

"This is when Bill Clinton boosted funding for local police forces, and police began experimenting with radical new approaches to policing, such as those employed in the so-called Boston Miracle. In 1994, the murder rate started to fall, and it's been falling ever since. Rape, robbery and aggravated assault have dropped along with it."

Do you see what is conspicuously NOT mentioned there? I mean, we get Bill Clinton and police innovation, etc., associated with the lowering of the murder rate starting in 1994. This is contrasted with the (correct) lamentation about the "sky high" murder rate from the 1960's, peaking in 1974, and continuing at high levels for several more years.

What's omitted? Here's a clue: It rhymes with DEATH PENALTY.

What the op-ed omits to say is that in the ten years when the murder rate was galloping forward (1967 - 1977) there was exactly one execution in the United States. But from the end of 1994, the year your op-ed specifies, and for next ten years in which, as it correctly notes, the murder rate fell substantially, there were 678 executions. Go to the DPiC website and see for yourself.

Imagine that! The murder rate correlates with the punishment for murder!!! How inexplicable! When we have zilch exections, the murder rate skyrockets, and when we have hundreds, it plummets.

Now you might say this is "propaganda," but if so, it's an odd sort. I'm reading this right out of the article YOU linked.

Many thanks!

Posted by: Bill Otis | Apr 26, 2010 10:14:17 AM

The analogy you keep trying to draw is about as intellectually dishonest as anything I've ever read here. The procedural similarity between a penalty phase verdict and a verdict in a non-capital trial does not change the fact that they are profoundly different matters in substantive terms, yet you talk about them as though they were interchangeable. In contrast, nothing Bruce said even comes close to intellectual dishonesty.

Posted by: JC | Apr 26, 2010 10:33:16 AM

I'm opposed to the death penalty, and that's one of the reasons I practice in Michigan, the first state to abolish the death penalty. If there is to be a death penalty, I prefer methods in which the state kills the prisoner, instead of, in practical terms, forcing him to kill himself involuntarily, as happens with lethal gas and lethal injections.

Posted by: Greg Jones | Apr 26, 2010 11:28:12 AM

Nowhere do I say that they're the same (actually, I think the guilt/innocence phase is far more of a weighty decision); what I do is use the omission of a relevant fact to illustrate the intellectual dishonesty of bruce's post. It's the same intellectual dishonesty we see when some killer is about to be executed and a defense attorney throws out some last minute argument (that could have been brought earlier in about 99% of cases) and predictably bleats how there is a man's life at stake. True. But leaving out that the "man" is a killer and has had years of flyspecking appeals is dishonest.

Posted by: federalist | Apr 26, 2010 11:46:47 AM

Bill--

I was attacked by a dog about a year ago (true story). About a week later, I purchased a new wallet (also true). Ever since then, I have not been attacked by a dog (still true). Obviously, it was the wallet.

I believe the death penalty does have some deterrent effect, but to seriously claim that the plummet in capital punishment is due to strong use of capital punishment--or the converse--is, well...dodgy. If that were the case, we would have seen skyrocketing murder rates every time a state abolishes (as a legal or practical matter) capital punishment. Thus far, I haven't seen it--though I am certainly willing to change my view if you know of some good science to back it up.

Posted by: Res ipsa | Apr 26, 2010 1:38:45 PM

Res ipsa --

Please tell me where you got your wallet. The dogs in this neighborhood are bad news.

Moving right along....

"...to seriously claim that the plummet in capital punishment is due to strong use of capital punishment--or the converse--is, well...dodgy."

That's why I don't claim it. What I said was that the murder rate CORRELATES with the punishment for murder. When we have zilch exections, the murder rate skyrockets, and when we have hundreds of executions, the murder rate plummets. That's what happens. Indeed the correlation is extremely strong.

As you say, causation is a dodgier question. I would not claim that the death penalty entirely accounts for the variation in murder rates. But civilization, for all of its history that I know about, has thought there is a relationship between crime and punishment. If that is correct, then there simply has to be some causal relationship between the DP and the murder rate. (Numerous modern deterrence studies virtually all suggest the same thing, http://www.cjlf.org/deathpenalty/DPDeterrence.htm).

The short of it is that, while it is difficult to believe that more frequent carrying out of death sentences is completely responsible for suppressing the murder rate, it is even more difficult to believe that the DP has no effect. If it has any significant effect at all, then it saves massively more innocent life than it is even alleged to have taken.

Posted by: Bill Otis | Apr 26, 2010 4:23:05 PM

So we are back where we started before Mr. Bill tried to inject more propaganda.

Joe Keohane: The crime wave in our heads

Maybe the blue ribbon commission can determine which factors are certainly contributors to a lower crime rate. Maybe the ultimate reason is tough on crime, maybe not.

My first guess might be science (forensics) which has become exponentially more reliable since the reinstatement of the DP.

History of Forensic DNA Analysis

DNA typing, since it was introduced in the mid-1980s, has revolutionized forensic science and the ability of law enforcement to match perpetrators with crime scenes.

Posted by: George | Apr 26, 2010 6:55:56 PM

George --

Give it a rest. The statistics are what they are. I didn't make them up. Go look for yourself on the DPIC website.

When the numbers as stark as they are in this area, you have to be crazy to think they don't establish a causal connection between the incidence of the punishment and the incidence of the crime.

Posted by: Bill Otis | Apr 26, 2010 7:36:19 PM

DPIC = Direct Propaganda Inciting Confusion.

Posted by: George | Apr 26, 2010 10:45:18 PM

George --

The DPIC is OK when simply reciting numbers it gets from BJS, but, other than that, I would be hard pressed to disagree with your characterization.

Posted by: Bill Otis | Apr 26, 2010 11:11:14 PM

So, once again, we are back to Joe Keohane: The crime wave in our heads.

Posted by: George | Apr 27, 2010 2:37:57 AM

Bill--

I agree with you that the two are correlated. What I fear is that you're overstating your case. I read your prior post as dismissive of the non-DP modes of fighting crime (e.g. additional police). And then, you state again in your last one, that when there is no death penalty, the murder rate "skyrockets"; where we have hundreds of executions it "plummets." Though you say "correlation not causation," a broad statement like that is coming awfully close to a distinction without a difference. It seems to indicate that if we remove the death penalty, the murder rate will skyrocket, regardless of other methods of crime control in place (and conversely as well). I just don't see the statistics to support it.

I agree with you that a higher rate of the death penalty likely plays a role in reducing murder, but I wouldn't go so far as to say that California's murder rate would "plummet" if the state started executing one a week. Drop, sure, I'll give you that--but I think there's a lot more to it than that.

All that said, I think that, likely, we're arguing the same point, but in different ways.

By the way, I got the wallet at Dillard's. I'm usually not a fan, but they had a good sale going.

Posted by: Res ipsa | Apr 27, 2010 8:26:12 AM

DP statistics are hashed and rehashed. Some states without the DP have lower murder rates than some states that do. Due to the "brutalization effect," it is probable that the murder rate would rise if California started executing again.

Deterrence versus Brutalization: Capital Punishment's Differing Impacts Among States

My results have three important policy implications. First, if deterrence is the objective, then capital punishment generally succeeds in the few states with many executions. Second, the many states with numbers of executions below the threshold may be executing people needlessly. Indeed, instead of deterring crime, the executions may be inducing additional murders: a rough total estimate is that, in the many states where executions induce murders rather than deter them, executions cause an additional 250 murders per year. Third, to achieve deterrence, states must generally execute many people. If a state is unwilling to establish such a large execution program, it should consider abandoning capital punishment.

Posted by: George | Apr 27, 2010 12:17:34 PM

Res ipsa --

The murder rate when executions resumed in earnest (which is to say roughly after 1990, after states got their capital punishment laws in line post-Gregg and the cases worked their way through the system at the usual snail's pace) was 41% lower than in the murder heyday of the seventies. That is, between 1990 and 2005, the murder rate dropped by a little over two-fifths. Whether one wants to call this a plummet or a drop is a matter of wording. It's a lot less.

The specifics are this: In 1990, the population was roughly 2248,700,000. The number of murders was 23,440, and the murder rate was 9.4 per hundred thousand. Fifteen years and close to a thousand executions later, the population was roughly 293,650,000. The actual number of murders had declined by about 7300, to 16,148, and the murder rate had fallen to 5.5. The reduction in the number of persons murdered annually in the Modern Era of Executions is staggering.

Thanks for the tip on Dillard's. I do a lot of Christmas shopping at the Dillard's in South Park.

Posted by: Bill Otis | Apr 27, 2010 7:14:00 PM

Bill: Assume each execution can be proven to prevent a 1000 murders. Do you have an answer to the legal argument (never made before) that punishing a defendant for the purpose of preventing the speculative crimes of others at speculative times in the future is 1) an improper motive of prosecution; 2) violates procedural due process rights to a fair hearing, punishing a person for the crime of another not under his control. Deterrence of the defendant is proper and lawful, as in torts. But, the death penalty is just total incapacitation not deterrence of the defendant in the case of murder.


Do you have a rebuttal to those legal problems with deterrence, punishing to intimidate others unknown to the defendant.

Posted by: Supremacy Claus | Apr 28, 2010 1:39:20 PM

SC --

One of the principal bases for ANY punishment is general deterrence. The overall reduction in crime that deterrence brings about is absolutely a proper goal of public policy and of those charged with its implementation, incuding prosecutors.

I do not approve of imposing the DP or any other penalty simply to achieve deterrence. The punishment must be just on its own merits in the case in which it is imposed. That it will have the further benefit of deterrence is all to the good, but would be insufficient per se to alone justify its imposition.

Posted by: Bill Otis | Apr 28, 2010 2:55:23 PM

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