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October 30, 2016

Mizzou State Representative wants to consider showing repeat sex offenders to execution chamber

As reported in this local article, headlined "State Rep. wants death penalty as option for repeat sex offenders," a local elected official has a notable idea for punishing certain sex offenders. Here are the details:

It’s the one issue in Jefferson City that State Representative Randy Pietzman says nobody likes to talk about. “This is not a popular topic to talk about if you’re just trying to get re-elected,” he said.  But that’s not going to stop him from tackling it head on because he says it concerns the safety of every Missouri child. “We need to change something. We need to do something to curb this problem,” he said.

And it’s especially relevant for Lincoln County, where the Republican is running unopposed for his second term this November. The rural county, about an hour to the northwest of St. Louis, has a disproportionately high number of sex offenders and sex crimes against children. “If you compare us with other counties in the surrounding area, per capita, we have substantially more sex offenders,” said Detective Sean Flynn with the Lincoln County Sheriff’s Office. “There’s something attracting them here,” Pietzman said.

But whatever the reason for the unwanted popularity, it’s having an impact on multiple levels. “It seems these crimes are impacting people across the socioeconomic spectrum,” Flynn said.... “It’s impacted the department in a way that my time is monopolized by this. Really, we’re at the point where we need more people to investigate,” Flynn said.

And some in law enforcement go a step further to say the situation might be beyond repair. Captain Michael Merkel with the Lincoln County Sheriff’s Office said, “I don’t think stopping it is an option. I think slowing it down is something we could do.”  One way of going about that, he said, is to strengthen the penalties statewide for what’s considered to be some of the most heinous crimes imaginable. “It’s not acceptable that somebody can pass a bad check and be punished more harshly than someone who has victimized a child,” Merkel said.

Capt. Merkel also suggests improving their ability to investigate child sex crimes. Right now, detectives in Missouri can only interview juvenile victims if their parents give permission.  And the problem?  “What we run into is we have a parent or family member who’s a suspect.  And they’re the only ones who can authorize the interview,” Merkel explained.

It’s a loophole in state law that Rep. Pietzman said could help his county, and the state, if it was closed. “We’re talking about our kids. If the punishment doesn’t match the crime, then it’s going to keep continuing,” he said.

That’s why, following our initial report, Pietzman is working on a number of reforms, including one that would make the death penalty a possible punishment for repeat offenders. “That seems cruel when you think about it," he said, "but you got to think about what these guys have done. We’re talking about grown men having sex with kids as young as 3- or 4-years-old.”

There are several cases and states that have pushed for similar measures, but capital punishment in America right now is almost exclusively reserved for the crime of murder. Pietzman said at the very least, he hopes to start a conversation in the legislature that some in law enforcement say is long overdue.

I am eager to help State Representative Randy Pietzman start this conversation about making repeat sex offenders eligible for the death penalty. The first critical point in such a conversation, however, has to be about the Supreme Court's Kennedy ruling which seemingly declared the death penalty unconstitutional for any and all crimes of rape. An argument might be developed that the Kennedy ruling applied formally addressed a first-offense child rapist, and so perhaps a capital statute focused on only the worst of the worst repeat child rapists could be legally viable (and, of course, because Eighth Amendment doctrines evolve perhaps Eighth Amendment precedents have less stare decisis force).

Also important to consider here is the concern expressed by Capt. Merkel about challenges he faces investigating child sex crimes. I suspect and fear that making some sex offenders eligible for the death penalty could actually end up aggravating rather than mitigating this problem as family members fearing a capital prosecution may be uniquely unwilling to cooperate with authorities.

October 30, 2016 at 10:42 AM | Permalink


I can't help but wonder if the fact that the CLEVELAND (OHIO) INDIANS are up 3-1 over the Cubs has put Doug in an aroused mood and this has transferred to his dormant but always present blood lust. Yes indeed 3/4 of all Americans think that felons should be allowed to vote...well, the LIVING ones at any rate...Doug eagerly desires to make the pool of living felons as small as possible, a fact he carefully fails to mention.

Posted by: Daniel | Oct 30, 2016 11:29:42 AM

I'm not eager for this conversation in large part since I don't think it is the best way to protect the victims of sex crimes. I think it will crowd out to some extent more useful discussions, especially given the understandable desire to punish repeat sex offenders in such harsh ways and the emotions this will engender.

I don't think one necessarily has to share my "abolitionist" views to agree.

I note too that Kennedy v. Louisiana cited experts concerned with the needs of children, including victims of this crime, to help decide the death penalty is not constitutionally appropriate. I would think on balance this would be true even if it was merely a question of policy left open to be done either way.

Reckon there is disagreement there but the small chance a few repeat abusers will be sentenced to die does not seem to me overall to be of much assistance in the long run to deal with this horrible crime. I'm open to discussion but seems of the many things that should be discussed front and center, other things are more worth our time.

Posted by: Joe | Oct 30, 2016 11:38:31 AM

I don't think that Captain Merkel's comments accurately reflect Missouri law governing investigation of child sex cases. (There are circumstances in which a child can request the presence of a non-suspect parent during the interview, but law enforcement can make contact with the child at the child's school -- for example -- without notifying the non-suspect parent. Additionally, if suspect parent is in household, child can be taken into protective custody.)

Even if this law were passed, I do not think that Missouri prosecutors would use it. Death Penalty cases add additional expense and complexity. Given how hard child sex cases are, I can't see any prosecutor wanting the additional problems of a death penalty case especially when higher courts would probably set aside the death sentence under current case law.

Posted by: tmm | Oct 30, 2016 12:52:07 PM

Daniel, what is your basis for stating that "Doug eagerly desires to make the pool of living felons as small as possible"?

If you mean that I am eager for fewer people to commit fewer felonies, you are spot on. But if you are saying that I want a lot more living felons killed, you are way off base. (I do want to make the pool of felons held in cages for no good reason to be as small as possible, but that seems like a different issue.)

I am happy and eager, Daniel, to discuss and defend what I believe and what I say. But, if you are talking about my views on the death penalty, you are mischaracterizing what I believe and what I say if you assert that I want lots and lots of felons executed for lots and lots of crimes.

Posted by: Doug B. | Oct 30, 2016 1:37:26 PM

"If you mean that I am eager for fewer people to commit fewer felonies, you are spot on."

Oh come on Doug, everyone is for that, it's like being for the sun or in favor of water. The only group that I can think of that would be in favor of more felonies is anarchists and I don't think any follow this blog. The key question is HOW do we get fewer people to commit felonies and in that regard there is widespread disagreement. Your desire to be on the "right side" of the culture war against sex offenders means that more people are gonna kick the bucket courtesy of the state government and you can't dodge that truth by hiding behind arguments over incapacitation. There is no evidential support for the idea that capital punishment discourages future crimes...you know that full well.

So explain your sudden blood lust for the lives of sex offenders..come on I wanna hear it. Why are sex offenders so special they deserve to die?

Posted by: Daniel | Oct 30, 2016 3:14:22 PM

It seems that if the money spent on convicting for repeat sex crime, leaving them on death row for years was spent on prevention it would be of better benefit. Why do we always go for the punishment instead of trying to address prevention?

Posted by: Anne | Oct 30, 2016 7:07:17 PM

"I am eager to help State Representative Randy Pietzman start this conversation"
Stop treating the death penalty as an intellectual gaming exercise. The reality is that there is no prospect of the Supreme Court expanding the criteria of eligibility, and a far greater prospect that in line with the prevailing trend throughout the US, they will come to acknowledge that the death penalty itself defies all rational interpretation of the Cruel and Unusual and Decency provisions of the Constitution in the 21st Century. Save the games for your students if you must, with a view to sharpening debating skills, though I can think of better subjects to debate. In the real world of sentencing legislation, this is a poor distraction.

Posted by: peter | Oct 31, 2016 7:47:47 AM

peter: do you think the state rep here (who, it is worth noting, is running for reelection unopposed) is playing a game? I suppose you might say he is playing the "game" of politics, but that game is very important for the future of law and policy. Notably, the Gov of New Mexico played this "game" with death penalty support in order to try to shape her state's legislature and the Gov of Nebraska is spending a lot of his own money to try to win this "game."

I surmise, peter, think you think that discussion of the death penalty is a (savage?) "poor distraction" from other topics covered on this blog. But you are, in a sense, like an elite sports fan who dislikes NASCAR and urges a sports page to stop covering that which a huge number of other sports fans find interesting and important. You are, of course, welcome to ignore my coverage of the topic you dislike, but calling an issue that is of interest to hundreds of millions of Americans a "distraction" reflects only your own disaffinity for a conversation on topics you dislike.

Daniel: instead of trying to "shoot the messenger," you accuse me of having a "sudden blood lust for the lives of sex offenders." I sincerely do not think my eagerness to discuss the possibility of death eligibility for the worst REPEAT CHILD RAPISTS --- e.g., folks like Ariel Castro who kidnap/rape/enslave multiple teens for over a decade --- reflects any kind of "blood lust." Rather, as my response to peter is meant to highlight, it reflects a desire to discuss seriously AND WITH THOUGHTFULNESS rather than name-calling, a recent proposal put forward by a serious politician in response to a serious concern about serious crime.

Posted by: Doug B. | Oct 31, 2016 9:06:49 AM

We already have the registry for sex offenders, that IS a death penalty.

Posted by: kat | Oct 31, 2016 9:53:33 AM

@Doug who writes, "eagerness to discuss the possibility of death eligibility for the worst REPEAT CHILD RAPISTS --- e.g., folks like Ariel Castro who kidnap/rape/enslave multiple teens for over a decade"

Of course you are going to frame the debate this way except (a) that is not what the state representative actually said and (b) even it were what the state representative actually said that framework cannot hold. Time and time again DP moderates like myself have been told "oh we only want the DP for the WORST of offenders, the baddest of the bad, the worst of the worst." And time and time again we have seen that as soon as our backs are turned the blood lusters come out of the woodwork and start demanding the DP for all sort of crimes that are not only not the worst of the worst they are crimes that historically were never DP eligible.

Doug, to me you are pandering. You think that someone like Governor Martinez is someone who you can parley with in order to some how cabin the DP within the the bounds of reason. You are the Neville Chamberlain of the DP. The State Rep. is not a reasonable person. Nothing in his comments reflects a reasoned approach to the public policy.

The harsh truth is that Doug's position has nothing to do with public policy. It has to do with the fact that he doesn't want to go into the law school faculty meetings and be given the evil eye by his female compatriots for defending sexual offenders. Doug saw what happened to Corey Young and wants no part of that shit.

I kinda like that though, Neville Berman. It has a ring to it. Makes me think of the gospel singer. That's Doug, up there singing the feminist gospel thinking that maybe they will like him more when in truth they think he is a craven fool.

Posted by: Daniel | Oct 31, 2016 11:22:45 AM

Actually, Daniel, historically cases like Doug described were eligible for the death penalty. It is only post-Furman that the rule has been that such cases are not eligible. Since it unlikely that the Supreme Court will reconsider its cases that limit the death penalty, I see the proposed legislation as one of those "it will sound nice to the voters even if the courts later reject it" proposals that politicians are known to do.

Posted by: tmm | Oct 31, 2016 11:56:41 AM

Doug. There is a world of difference between discussion of the merits of the death penalty per se and with the process and environment in which it takes place, and the promotion of ideas to expand it (which in itself is clearly an exercise in futility since it will never happen). I see in your latest blog post you now say that you ".. strongly believe our death sentencing systems have become much, much more reliable and much less arbitrary as we have gotten much, much more careful about how gets subject to capital prosecution and about who ultimately gets sent to death row." Well, since the number of States and Counties actually still applying the death penalty has been somewhat reduced over the past decade, numerically you are probably correct. However a) there is clear evidence in recent reports (that you have posted and now ignore) that there continues to be great disparity geographically, racially, in terms of what qualifies for the death penalty and what does not, in the quality of defense made available by the public purse (both in terms of quality of representation and in the adequacy of resources made available), and in the degree of prosecutor zealousness for execution (to name a few points); b) there are still inmates working through appeals some 15, 20 or more years after trial, of which some at least have not had the benefit of the "improvements" you claim; and c) there are huge numbers still sitting on death row throughout the US who will never have their death sentence carried out. If you can see any sense in promoting an expansion of the eligibility of the death penalty at such a time then I can only say you are turning out to be as over-zealous as the rogue prosecutors recently named. The real debate should be how to close down this outdated and irrational system where it still exists, not play mind-games with academic and political entities to help pursue their and your own prejudices. The evidence is clear that more prosecutors, juries and the public at large are increasingly reluctant to accept that the death penalty is a necessary or appropriate punishment in 2016, and it is that which needs to be addressed .... not tub-thumping for politicians like Pietzman who see no further than their own ambition.

Posted by: peter | Oct 31, 2016 12:54:35 PM


1. I defend sex offenders all the time, and I have frequently filed expert reports in federal court stating that the federal child porn guidelines produce unreasonable sentences for those who only download child porn. To my knowledge, my female compatriots do not give me the evil eye for that reason. (My colleagues definitely give me the evil eye a lot, but that is usually because I am so a loud-mouth. And I continue to find it funny how many commentators on this blog think I do/say stuff with concern for "law school faculty meetings"; having tenure means I do not have to, thankfully, worry so much about my colleagues' glare.)

2. The so-called "blood lusters" you decry, Daniel, are hardly having much success for late. When Bill Clinton was Prez, they were getting 280+ death sentences each year. Now we are down to less than 50 per year circa 2015. Seems like I am much more like Churchill than like Chamberlain if I were just trying to figure out how to deal with those who favor capital punishment. (Even more telling is that you consider those who favor the death penalty to be modern-day Nazis. No wonder Bill Otis got fed up with some of the commentary over here -- as you now seems to be calling roughly 60% of the country to be Nazi-like in their views.)

3. Perhaps feminists (and lots of others) think I am a craven fool. I think I am always trying to speak truth to power. And my truth is that nobody should be fearful of an honest and truthful conversation about important public policy issues unless they fear that their version of the truth cannot stand up to scrutiny during such an honest and truthful conversation.


1. I agree 100% that there is still "great disparity geographically, racially, in terms of what qualifies for the death penalty and what does not, in the quality of defense made available by the public purse (both in terms of quality of representation and in the adequacy of resources made available), and in the degree of prosecutor zealousness for execution." Then again, the same could be said about LWOP, and life with parole, and prison sentences of 20+ years and a whole lot of other extreme sentences, many of which get imposed without the input of judges or juries. What makes the death penalty distinctly less worrisome, practically speaking, is that nobody gets the death penalty for a non-violent crime nor do they get it unless a jury of peers have decided they should die for their crimes.

2. In other words, the limited reach of capital crime statutes + jury sentencing realities serve to greatly limit the power of "rogue prosecutors" when it comes to the application of the death penalty. Sadly, these critical safeguards do not protect the thousands of NON-VIOLENT drug offenders who are subject to LWOP sentences based on "great disparity geographically, racially .... [and] in the quality of defense made available by the public purse."

3. State Rep Pietzman is apparently running unopposed, so I am not sure why you think his proposal is about only his "own ambition." Indeed, if it is true that "more prosecutors, juries and the public at large are increasingly reluctant to accept that the death penalty is a necessary or appropriate punishment," then State Rep Pietzman's proposal would seem to hurt his political ambition, no?

Posted by: Doug B. | Oct 31, 2016 4:28:45 PM

@Neville Berman

Your words claim that you want a serious conversation about the DP but your behavior says otherwise. Your example of Castro is a perfect example of a reductio ad absurdum argument. People who make appeals to the most extreme cases to buttress their argument have no argument, they have an extreme example and they want everyone to cower before it. I asked you a simple question, a question that you repeatedly dodged (what Bill O. used to call your "shuck and jive") about sex offenders. Not sex offenders and kidnappers and enslavers... just sex offenders. The same thing the state rep. is concerned about. Sex offenders.

If you want other people to take your talking points seriously you can start by taking other people's talking points seriously.

Posted by: Daniel | Oct 31, 2016 4:46:59 PM

Daniel, it seems the State rep is looking at "mak[ing] the death penalty a possible punishment for REPEAT offenders," so I brought up Castro as an example of a repeat sex offender. But if you want a couple other examples, how about:

Ricky Randall Rex Smith, whose repeat sex offenses included in 2000 "having filmed the sexual abuse of several minor children in his care, including a 3-year-old girl" after being a fugitive from justice for 18 years after being convicted in 1983 of sodomy of a child under 14: https://archives.fbi.gov/archives/mobile/press-releases/2010/mo032610a.htm

Paul Edward Pavulak, whose most recent offense was described this way: "From September 2008 to January 2009, just months after being released from custody on his second child molestation conviction, Pavulak developed an online relationship with a young woman in the Philippines who had a two-year-old daughter. In December 2008, Pavulak traveled to the Philippines and met the woman and her daughter. Pavulak produced a sexually explicit movie of himself and the woman, and described the movie as the two-year-old girl's 'training video'." https://www.ice.gov/news/releases/repeat-child-sex-offender-sentenced-life-prison

Am I wrong to think that these are the kinds of offenders that the State Rep wants to have a conversations about making "the death penalty a possible punishment"? The state rep does not seem to be asserting that these folks must get the death penalty for their repeat sex offenses --- rather he is just saying he wants to start a conversation about whether these folks ought to at least possibly be eligible for capital punishment.

Do you want more example? I few minutes on google was all it took to find the two above, and sadly I am sure I can find many, many cases that are much, much worse.

Posted by: Doug B. | Oct 31, 2016 5:01:21 PM

Everyone is throwing around the term "sex offender" as if it means the same for everyone.
Keep in mind that this ridiculous broad-stroke term covers crimes from public urination, skinny-dipping, teen-age sex, non-contact CP and kidnapping to crimes committed by true pedophiles and serial rapists.

Also Detective Flynn mentions that his county has more than their fair share of sex offenders and that something must be attracting them to that area. Were these sex offenders born and raised there. Are these crimes occurring within families that have always lived there and there's always been problems? It doesn't make it right of course, but that's a lot different from "flocks of sex-offenders" decending on his county because they are attracted to something. What is he suggesting?

Maybe the county needs to start with some good old public education rather than rushing to societal hysteria using terms like sex-offender and death penalty in the same sentence. Geez!

Posted by: kat | Oct 31, 2016 5:22:52 PM

@Doug writes,

"Am I wrong to think that these are the kinds of offenders that the State Rep wants to have a conversations about making "the death penalty a possible punishment"?

Yes I do think you are wrong. Your examples confuse repeat offenders of the type that the state rep is talking about with recidivist offenders. That is to say there is a difference between a repeat offender in fact and a repeat offender in law. The examples offered by the state rep do not address recidivist offenders (repeat offender in law) they address repeat offenders in fact--people who have engaged in repeated sexual conduct over time but who have never been convicted of a crime.

In my view these two classes of sex offenders are not equally blameworthy. I find recidivist offenders much more blameworthy than repeat offenders for the simple reason that recidivist offenders have actually suffered punishment at the hands of the state--and do it again, anyway--whereas repeat offenders have not.

In short, once again your examples are not apposite.

Posted by: Daniel | Oct 31, 2016 6:24:20 PM

Well, FWIW, I think only repeat in law offenders are worth discussing, and that is the discussion I would like to have. If the discussion is limited to those kinds of recidivist sex offenders --- whom you call "much more blameworthy" --- can we have a serious conversation on this topic? That is all I am seeking --- a serious conversation on a serious topic.

Posted by: Doug B. | Oct 31, 2016 10:08:58 PM

Doug "What makes the death penalty distinctly less worrisome, practically speaking, is that nobody gets the death penalty for a non-violent crime nor do they get it unless a jury of peers have decided they should die for their crimes."
It may be less worrisome to you yet the reversal rate of such sentences remains high - through a mixture of innocence, legal error, and a re-evaluation of intent or other level of culpability. It is too often the case that only through the initial efforts of third parties (not available to all), usually voluntary non-legal and at their own expense, is evidence uncovered that leads to these outcomes. Numerically small perhaps, but then the death penalty is supposed to represent the ultimate punishment.
Some years ago I proposed to you that one would expect crimes loosely capable of being represented by a pyramid and that it would be entirely reasonable to expect punishments to mirror this. It would not of course be a perfect pyramid but sentencing law broadly accepts that the worse the crime the worse the punishment. I have no difficulty agreeing with you that there are massive aberrations in the application of this principle running through the entire justice system. The only way to begin to address this is to re-impose that principle of pyramid or hierarchy at the top end of sentencing, banning all sentences above LWOP which itself should be limited to a clearly defined and limited "worst of the worst" (eg. serial and mass killers). Until persons such as yourself pursue THAT debate, you are whistling in the wind for all those other injustices that you identity and have such empathy with. It takes something special and dramatic to put the genie back in the bottle.

Posted by: peter | Nov 1, 2016 6:40:57 AM

In the last, say, 5 years, peter, when we have had less than 100 death sentences annually, have we had capital convictions of plausibly innocent persons?

All the problems you cite were rife in the 1990s but are greatly reduced now. In other words, we have improved greatly on improving the top of your pyramid. And that is why I think it now so much more important to focus much more attention on the mass and massive injustices more common elsewhere in the system.

Notably, in recent years, a number of notable capital states --- e.g., California, Georgia, Texas --- have been willing and able to improve lower parts of the pyramid without DP abolition.

Posted by: Doug B. | Nov 1, 2016 7:04:47 AM

Doug. My perspective is rather different being very closely associated with both past and currently problematic dp cases, yes and all of them from the late 1990's. That legacy hasn't gone away and neither have many of the inherent issues that made that period especially bad (which we have both listed). Many people from that period, who are still wasting away on death row today, are still being represented by the same tired faces going through the motions, or where there has been a change, hampered by years of missed opportunities. That means many who have appeared on death row since the 1990's are still being represented by those same people who have, by reasons not necessarily of their own making, provided inadequate defense. There is nothing systematic about your approach, no overarching proposal of structural reform. And that is at the root of the problem. You are disregarding the legacy and condemning those trapped by it. At the same time, because you see some signs of current improvement (but ignore or misinterpret the reasons for it) you are prepared to walk away, disassociating it from the wider problems of sentencing. That doesn't, I'm afraid, satisfy or inspire me.

Posted by: peter | Nov 1, 2016 10:57:32 AM

"In the last, say, 5 years, peter, when we have had less than 100 death sentences annually, have we had capital convictions of plausibly innocent persons?"

From what I can tell, yes, you can find various accounts that suggest among those hundreds, you can at least find a few "plausibly" innocent. We repeatedly only find out about those innocent (and this to me includes any legally so) a long time down the road from the actual sentencing as well.

"And that is why I think it now so much more important to focus much more attention on the mass and massive injustices more common elsewhere in the system."

If we grant that, talking about EXPANDING the death penalty in this context seems to work at cross purposes even on that level. tmm's comment only helps me think that -- it again doesn't speak from an "abolitionist" standpoint.

Posted by: Joe | Nov 1, 2016 11:06:11 AM

Actually, peter, there is something "systematic" about my interest in expanding the death penalty NOW: everyone subject to capital charges in 2016 in the US gets a WHOLE LOT more resources spent on their defense AND gets a whole lot more attention from the courts and liberal activists. I think it is interesting to speculate whether, for example, Ricky Randall Rex Smith or Paul Edward Pavulak would have gotten LWOP sentences if they received even 50% of the defense resources (and media attention) that mass murderers like James Holmes and Dyllan Roof have received.

You yourself, peter, serve as one great example of the extra attention condemned murderers get: you eloquently document on this blog all the problems that were "baked" into death sentences in the 1990s. I do not dispute those problems, but I note that a whole lot more people/lawyers/media are focused on those problems in a few hundred capital cases than the problem of many tens of thousands of persons still serving lengthy prison sentences for nonviolent (and often "victimless") drug crimes throughout the 1990s. And, as bad as the defense team/resources might have been for all those 1990s murderers still on death row, I am pretty sure the defense team/resources was even worse for all the 1990s nonviolent drug offenders.

I am not eager to condemn anyone --- indeed, I am trying to do just the opposite in light of the modern reality that if one is charged with a capital crime (and especially if you are given a death sentence) in the US circa 2016, your case is going to be the focal point of extraordinary resources and attention no matter how bad your crime for as long as you are on death row. But if "only" a long prison sentence is at stake, your case is going to be, relatively speaking, all but ignored by the media and liberal activists no matter how minor your crime is.

And if you are truly and deeply concerned about wrongful convictions/innocence, Joe, I will wager there are many, many, many more persons wrongfully convicted and serving a "death in prison" sentences now than persons who on death row. A quote from the national exonerations registry discussing 2015 exonerations makes the point this way:

"We have reliable statistical evidence that the rate of false convictions among death sentences in the United States is about 4%, but we don’t have comparable information about non-capital convictions. The rates for other types of criminal cases could be lower or higher. But even a false conviction rate of 1% translates into tens of thousands of miscarriages of justice a year, and thousands more who were convicted in past years but remain in prison.

With only 49 capital verdicts in 2015, even a continuing 4% wrongful conviction rate in capital cases would mean only two innocent persons were sent to death row last year. (I think and hope we have now brought that error rate very close to 0% in recent capital punishment years, but I won't even use that reality in this calculation.) This would also suggest that, of roughly 3,000 persons still on death row, there may still be 60 innocent persons languishing on death row for crimes they did not commit. (Again, I think we have overturned or commuted many wrongfully capital sentences, but I won't use that reality either when running the modern numbers.) Meanwhile, according to data from the Sentencing Project "Approximately 10,000 lifers have been convicted of nonviolent offenses." If it turns out that only .5% of these persons are innocent, that means that 500 innocent persons are serving a "death in prison" sentence for nonviolent crimes they did not commit.

Posted by: Doug B. | Nov 1, 2016 11:38:46 AM

Doug writes,

"Well, FWIW, I think only repeat in law offenders are worth discussing, and that is the discussion I would like to have."

That is well and good but it is, as I have already pointed out, not the discussion the state representative wants to have. So now you are changing the subject.

FWIW I am willing to have the serious discussion on the topic you want to have at the appropriate time and place. However, I don't feel the appropriate time and place is in the comment section of an article that raises an entirely different set of issues.

Posted by: Daniel | Nov 1, 2016 12:14:41 PM

"Actually, peter, there is something "systematic" about my interest in expanding the death penalty NOW: everyone subject to capital charges in 2016 in the US gets a WHOLE LOT more resources spent on their defense AND gets a whole lot more attention from the courts and liberal activists."

That is perverse. You want more people exposed to the death penalty so that the defense bar has more profitable opportunities to engage in rent seeking? My chin is going to be sore at the end of the day from dragging my jaw off the floor. It's times like these than make me miss Supremacy Claus.

Posted by: Daniel | Nov 1, 2016 12:20:55 PM


1. The news report's headline says "State Rep. wants death penalty as option for repeat sex offenders," and the article goes on to explain that the Rep "hopes to start a conversation" about making "the death penalty a possible punishment for repeat offenders" who have "sex with kids as young as 3- or 4-years-old." Given that reporting, I really do not think my interest in having a discussion about "repeat sex offenders" is "changing the subject" to an "entirely different set of issues." In fact, I think it is having a conversation about the precise issue that the state representative, according to this article, hopes to start.

I get Daniel that, for whatever reason, you do not want to talk about repeat sex offenders like Ricky Randall Rex Smith and Paul Edward Pavulak and whether they might possible get better defense representation if they were possibly eligible for the death penalty. But please do not say you will not engaging this conversation because I am somehow "rais[ing] an entirely different set of issues" when, in fact, I am trying to talk about the very issue discussed in the article.

2. Are you asserting, Daniel, that the defense bar gets involved in capital defense only to engage in "rent seeking"? I know of not a single person doing defense work who gets involved in capital cases "for the big bucks." Are you aware of anyone who is truly getting rich off this work or is really engaging in so-called "rent seeking"?

I want more people exposed to the death penalty if and only when there is reason to be hopeful that doing so could help (1)reduce serious crimes and victims who have their lives destroyed by serious criminals AND (2) reduce the number of wrongful convictions AND (3) increase the quality of defense services even indisputably guilty defendants will receive. I am at least open to the possibility that, circa 2016, making the "worst of the worst" repeat sex offenders subject to capital punishment might help advance these goals. I am not certain about any of this, and thus my interest in having a serious conversation on this topic. (I surmise you would rather talk about defense bar "rent seeking" with Supremacy Claus, and that is certainly your prerogative. However, I think I recall that SC advocated for all three-strike defendants to be executed regardless of the nature of their crimes.)

Posted by: Doug B. | Nov 1, 2016 1:36:59 PM

Doug. Recognizing you definitely want the last word I was in two minds whether to respond yet again. However of course I feel I must, owing to the extraordinary nature of this post, and the comments made in a more recent one. So:

How conflicted you are. In recent months you have argued that:
- the death penalty might be brought down by the immense cost to State coffers, yet now you propose to greatly increasing that cost by extending the scope of the death penalty (I'm sure the treasury section of the Ohio legislature will be thrilled!)
- you optimistically joined a taskforce to bring reform to the flawed death penalty process in your own great state of Ohio but finding the recommendations rejected, you consequentially suggest the state might better seek ways to abandon the death penalty .......... and now, suddenly, you find great encouragement and evidence that actually everyone is doing so much better and therefore the scope of the death penalty can safely be extended without the reforms you once thought so pertinent

Finally, you have the gall to suggest that when it all goes pie-eyed, 68 yr old foreign Human Rights citizens and other concerned observers will gladly come along and ensure the mess is cleared up. Nice.

I hope you are preparing something a little more rational and substantial for the benefit of listeners at the Northwestern JCLC symposium. I regret I won't be there but I dare say you will give us a link to the transcript.

Posted by: peter | Nov 1, 2016 4:30:08 PM

peter, two quick replies:

1. I have felt conflicted by the death penalty for decades: I wrote about my views, in the hope of reducing my conflicting feelings, in a high school paper before I was old enough to legally vote; I studied moral philosophy and read classic works by Kant and JS Mills and others in the hope I could figure this out before I was old enough to legally drink; I did pro bono litigation on behalf of condemned prisoners (and visited one on death row in Texas) while in private practice and won a Thurgood Marshall award for my work before I became a law professor; and I have spent the last 20 years thinking even more and writing (too much) on these topics. And yet, as you astutely note, I am still conflicted.

2. I am not conflicted, however, in my passion for the text of the US Constitution and for its commitment to democratic self-governance. And the text of the US Constitution, as it current stands, permits the people of the nation and/or of individual state to consider using the punishment of death for certain criminals. I think, generally speaking, that citizens (especially state citizens) ought to recognize that in modern America that the various costs of running a fair and effective capital punishment system, generally speaking, are greater than any benefits such a system might produce. But my commitment to democratic self-governance makes me eager to see "the people" decide this policy issue --- ideally after being informed by various informed folks about the CURRENT state of affairs. We generally do not NOW "abolish" government programs because they worked poorly 20 years ago. Critically, this is not a statement that the current DP system in Ohio (or California or anywhere else) is working perfectly --- rather it is a statement that I tend to make about any and every government program that I study closely: it tends to get a little better over time, but there are lots of ways we might make it better still. The problem is, as my most recent article was meant to showcase, those on both sides who really are passionate about capital punishment are not really at all interested in making it work "better." But I am, at least until voters say they do not want to waste time and money improving this part of government.

3. Not sure if the folks at Northwestern will consider that rational and substantial, though rarely do I see much of the advocacy around the death penalty to be truly all that rational or substantial.

Posted by: Doug B. | Nov 1, 2016 6:05:29 PM

Here we have another scumbag pig calling people listed on their glorious Registries "s*x offenders". F the police. I wouldn't help them if the future of the world depended on it. I will continue to work to keep them broke.

Posted by: FRegistryTerrorists | Nov 1, 2016 8:24:43 PM

Doug, I think that you are being taken to task for "eagerly" taking up the issue of capital punishment for sex offenders and encouraging a kind of pornography of blood lust which has come to dominate our society and sustain its limitless appetite for the salacious.

As for the "worst-of-the-worst" exemplars you cite as being those problems such a discussion might address, we've all seen how that phrase inevitably comes to include those who are clearly not the "worst-of-the-worst."

Whether it be super-max prisons, ludicrously savage sentences, Guantanamo detainees or sex offender civil commitment, anyone with actual experience in these areas of criminal jurisprudence knows that the phrase "worst-of-the-worst" is used as a reality distortion field to drive through ghastly policies.

We expect better from you.

Posted by: David Kennerly | Nov 16, 2016 11:20:36 AM

“We’re talking about our kids. If the punishment doesn’t match the crime, then it’s going to keep continuing.”

I don't know how the death penalty matches the crime, but that being said, the majority of kids are abused by family. How would the death penalty serve the child? So not only was the child abused by brother Billy, he now believes he is responsible for Billy's death. Win, Win?


Posted by: Huh? | Dec 5, 2016 5:36:18 PM

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