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September 4, 2007

Is the death penalty really the "greatest moral challenge facing lawmakers today"?

Though I am never inclined to downplay the significance of sentencing issues, I am inclined to questions the Dallas Morning News' assertion in this editorial that "Texas' relentless pace of state-sponsored killing is the greatest moral challenge facing lawmakers today."  I tend to think that providing poverty relief and even some other criminal justice issues (e.g., reducing wrongful convictions) might be a greater moral challenge.  But I would guess that some readers might agree with the Dallas Morning News' moral compass.

That said, I do support the editorial's suggestion that Texas' legislative leaders "should start the process [of examining the state's death penalty] by ordering Senate and House committees to study capital justice in Texas and doubts about its fairness."   

September 4, 2007 at 05:09 PM | Permalink


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The editorial is laughable. The execution of murderers, even if one concedes that it is immoral, is far far less of an injustice than even the conviction of an innocent man for a simple assault. As a result, if there issues with "false positives" in the Texas justice system (and DMN clearly thinks that there are), then the editorial cannot be correct.

Moreover, this constant bleating about "fairness" in the death penalty has got to stop. If you are a murderer, you have no right to worry about what other murderers get. None. The statutes, passed by the Lege, dictate what crimes are death-eligible. If your crime makes you death-eligible, too bad. Don't commit the murder. As things stand, Texas executes a very small number of murderers, thus, by necessity, there is going to be some cosmic unfairness. So what?

Moreover, the Kenneth Foster case proves nothing (other than Gov. Perry is not of much principle). This is a garden-variety felony murder conviction for which death was comfortably within the Texas LOP statute and the US Constitution. Executing Foster may have been "unfair" in some cosmic sense, i.e., when compared to other murderers who don't get the "big jab", but it certainly is not unfair to execute a guy who drove around looking for armed robbery victims when one of the armed robberies goes bad.

I guess, at the end of the day, I have to scratch my head. What is the big deal about executing murderers? I just don't see how it is anything more than simple squeamishness. Yeah, we need to make sure that substantial questions of innocence (and I mean real innocence, not Mumia Abu-Jamal "innocence") are dealt with and that constitutional protections are adhered to, but, really, with a war going on, and all the other challenges we face as a society, why does killing killers get editorial writers like those in Dallas in a tizzy?

Posted by: federalist | Sep 4, 2007 5:45:36 PM

The DMN also solemnly informs the people of Texas that theirs is the only state in Union that employs the "law of parties" in capital cases. Everywhere else, a murderer who "did not personally take a life" cannot be executed.

Someone tell John Allen Muhammad he is not really on death row in Virginia for a killing committed by Lee Malvo. Better yet, tell Clarence Ray Allen he is not really dead. California couldn't possibly have executed him for the murder of the witnesses to his first murder, a crime he "outsourced" from within prison.

Where does the DMN get its "facts"? Do they read anti-DP press releases and print them as truth without checking?

Posted by: Kent Scheidegger | Sep 4, 2007 6:13:12 PM

How come nobody pays attention to the simple truth that Texans are just worse people than the rest of the country? This is why so many of them need to be executed, and a wall needs to be built to protect the rest of the country from them.

One point need to be addressed:

“Moreover, this constant bleating about "fairness" in the death penalty has got to stop. If you are a murderer, you have no right to worry about what other murderers get.”

How do you propose to stop it? Make it a felony to raise a due process challenge to any sentence? Like it or not, some death penalty decisions have been made on a basis that is unconstitutional. While I realize that the constitution is inconvenient, the actions of prosecutors, for the time being need to comport with the 14th amendment. Of course, the prosecutors could avoid this problem by simply seeking the death penalty for more people, especially in Texas where it is hard to find a single law-abiding person because they are simply born bad.

I agree that the “law of the parties” argument was sort of undeveloped. But, on the other hand, whenever many lawyers talk to non-lawyers, there is a tendency to dumb things down. In the words of one former high-ranked official (in the Bush DOJ), “Those people just wouldn’t understand.”

Posted by: S.cotus | Sep 4, 2007 6:26:17 PM

S.cotus, I was speaking figuratively . . . .

Posted by: federalist | Sep 4, 2007 6:42:14 PM

I think the distinction the DMN was trying to draw was between the people who intend death and the people who do not. The editorial board, of course, garbled this distinction by talking in terms of "personally killed", which, of course, is a very imperfect vehicle for allocating relative blameworthiness. Thus, someone like Claude Allen, who clearly intended death, would be considered to have "personally taken" a life, whereas Kenneth Foster, who joined a criminal enterprise creating a grave risk of death would not. (Of course, I'm giving them the benefit of the doubt.)

Fundamentally, of course, the DMN's editorial is simply wrong. The editorial board is arguing that Texas is an outlier. Foster's case would be, in most states, a simple application of the felony murder rule, and Texas is not alone in allowing death to Foster on Foster's facts. Moreover, other states (e.g., Virginia) would likely join Texas were it not for statutes enacted in reaction to Enmund v. Florida.

Posted by: federalist | Sep 4, 2007 6:59:54 PM

"especially in Texas where it is hard to find a single law-abiding person because they are simply born bad." And you expect to win anyone to your side with that argument? Perhaps Texas executes more people because they don't have activist courts like NY willing to find a due process violation were none exist.

More to the point, are we really to believe that the death penalty is unconstitutional? On what grounds? Unusual? Clearly not since the Constitution directly refers to it ("no person shall be deprived of life...) Cruel? How so? Because it may inflict pain? Since when is there any guarantee that punishment should not involve pain? And if pain was the issue, a bullet to the head could eliminate all that. No, death penalty opponents dislike the death penalty based on their own moral beliefs (that's fine) and seek the courts to impose their morality on all of us (that's not okay by me).

What's so striking about the death penalty is how so many Americans support it and so few elitist academics and lawyers do and the latter so no problem in forcing their view upon everyone in a country supposedly founded on democratic principles.

Posted by: | Sep 4, 2007 7:41:04 PM

To the last commentator, it is hard to really tell what “support” for the DP means. It is easy for most people to support it in the abstract, but when you start giving them hypotheticals based on real cases their “support” waivers. Whatever the case, their involvement with the process is remote, and there are few efforts to remotely democratize the death penalty (e.g. public executions, and/or elected executioners).

As to whether the DP is “unusual” there are various definitions of “unusual” that are employed by the courts. One of them (which the Supreme Court – and Justice Scalia appears to have adopted) is simply to count the noses of jurisdictions that employ certain punishments. If the number is “low” it is “unusual.” Of course, your historic analysis might carry the day, but it is hard to see how any has any claim to moral superiority.

Like it or not “elite” academics and lawyers are the people that control things in this country. Sure it is nice to tell people that are not lawyers and are not academics that those people are not like them, but when it all comes down to it, the people that matter go to real schools (even the president) and are usually lawyers. What the uneducated masses think is usually viewed as sort of a pesky annoyance of politics, which can be manipulated, but usually needs to be ignored.

Posted by: S.cotus | Sep 4, 2007 7:56:02 PM

S.cotus, I believe the word you search for is "waver", not "waiver".

Posted by: | Sep 4, 2007 7:59:07 PM

As a rule, without exception every decision that I dislike is the product of an “Activist” judiciary. Every decision I like sticks to the history, text, or spirit of whatever document is being construed. This is obviously pure coincidence.

Anyway, I have been to Texas, and more importantly, I saw “Urban Cowboy.” Those people are criminals and the Texas courts reach the right result in executing so many of them.

Posted by: S.cotus | Sep 4, 2007 10:24:58 PM

What incredibly banal banter in evidence from responders! You have clearly distanced yourselves so far from the people whose lives depend on the practice of law that you are unable to see beyond the abstract. The truth is that a handful of states, Texas presently at the forefront, perpetuate the practice of the death penalty in the US beyond both the intention of the Constitution and the norms of most of the rest of the world. While in a brief editorial one might allow for imprecise analysis, the message of this one is spot on. The fact that much of the remainder of the law (sentencing) is also in an appalling state of confusion and unfairness, and that there are other important moral issues apart from the application of the law, in no way diminishes the importance of the argument that the death penalty, being the ultimate punishment in the US, needs review and ultimate abolition.

Posted by: peter | Sep 5, 2007 10:18:38 AM

Peter, I am unsure whether the framers of the constitution specifically contemplated a limited use of the death penalty. In fact, the framers of the constitution were not specifically thinking about state government actions (at as regards most parts of it). Also, Texas was not a state back then. But that doesn’t mean that the DP or its administration is unconstitutional.

There has always been some “confusion” in the law, and there has never been a point in history when all parties agreed that the “law” was completely fair. Much of the “confusion” much easier to see your way through if you make the intellectual commitment to understanding it. But, this takes time and most people would rather watch TV.

Posted by: S.cotus | Sep 5, 2007 10:44:41 AM

Peter: The "founders" had no problem with making the DP available for piracy, cattle russlin', theft, and a myriad of other offenses. It is awfully brave labeling the comments here "banal" when you post something as boneheaded as the "intention of the Constitution" doesn't embrace the practice of capital punishment. Not only is there nothing that prevents the DP in the Constitution (as the SCOTUS has noted several times), the deprivation of "life" is mentioned prominently.

The problem, obviously, is in the administration of such justice. While Federalist, in his glee to see poor people killed by hooded state employees, likes to gloss over those niggling details, there is no doubt that there needs to be a nationwide moratorium and a Federal mandate that trial counsel meet stringent qualifications and the states who chose to enforce the DP must be forced to supply the defense with (very) ample cash and resources to try these cases. Texas' system (in particular Harris County) is a complete joke. While counsel ostensibly has to meet certain criteria, and some court appointed counsel in Houston are fine lawyers, the funds expended for experts, investigators, and other aid are criminally low. Every expense must be approved by the district judge, and the lack of quality lawyers and resources at trial lead to the majority of both direct and habeas appeal issues. While some problems might be solved by Harris County adopting a public defender service instead of a court-appointed system, lack of resources will still be an issue. Much like our health care system, the problem with the death penalty isn't that it can't be done right or the resources don't exist, it's that it can't be done right on the cheap.

If Texas want to inject everyone that shoots a 7-11 clerk that's fine by me, but Texans will have to pony up the serious $$$ the defense needs for this to be a fair system.

Of course Chuck Rosenthal and his crew at the Harris County DA's office will stringently oppose this since they already have the LOWEST % of securing the DP of any DA's office in Texas (despite lots of practice), and faced with an opponent on equal footing they'll look even more pathetic.

If DP proponents would just take a few minutes away from rooting for the next execution to think about making trials more fair then they might realize that properly lawyering and funding the defense of DP cases at the beginning, thus leaving less error for the "post conviction law industry" (sorry fellas, you might have to get real jobs or learn how to try a case), might actually make for a lot more fun evenings standing outside the death house in Huntsville with "inject 'em all!" placards.

Posted by: dweedle | Sep 5, 2007 11:32:40 AM

Dweedle, To be fair, many of us think that the act of state-sponsored killing is unconstitutional, regardless of how great the procedures are. While I have not completely resolved the argument in my head, many people hold the belief that the “unusual” part of the constitution requires the courts to ascertain whether a given punishment if rare (throughout the world or country) and prohibit it if it is.

Posted by: S.cotus | Sep 5, 2007 3:36:11 PM

federalist writes, "If you are a murderer, you have no right to worry about what other murderers get. None."

Except that the courts have an interest in fair application of sentences and equal justice under the law, and in the adversarial system it's the defense typically charged with raising the question, if applicable. So federalist, I think you're wrong. (A first, I know.) Not only do defendants have the right to raise that concern, I'd argue that there may be cases where their defense counsel has an ethical obligation to do so. best,

Posted by: Gritsforbreakfast | Sep 5, 2007 5:05:53 PM

Grits: "Fair application" as it applies to DP is no different than with any other crime. States have various and sundry statutes and penalties that range all over the map for just about any offense (just one reason the Federal Sentencing Guidelines are preferable, IMHO), and all of it, including the disparity between DP states and non-DP states, has been found constitutional. I mean, you can't have your cake and eat it too... either you believe in parity and consistency and will drink Dweedle's Sentencing Guideline Kool-Aid, or you like the fact that each judge is his or her own master of the universe. So which is it?

And "unusual"? There ain't nothing unusual about killin' in (or by) America... turn on the teevee S.cotus. Further, in the specific case, people get kilt all the dern time in Texas. "Some folks need killing" (as a old Judge liked to say) and some folks don't. Thems that done kilt the ones that didn't rank it - well, they get the rope.

Not unusual at all. What's "cruel" (but not "unusual") is to give a defendant a lawyer that don't know come here from sic 'em. A qualified and well funded defense is what will cure the real problem... that and a healthy dose of EDPA and we'll see once and for all if there is any deterrent beyond the "direct" deterrent on the individual murtherer.

Posted by: dweedle | Sep 5, 2007 5:57:53 PM

Grits, perhaps reading what I wrote in context would help you out--"equal justice under the law" is a slogan, not an argument.

Posted by: federalist | Sep 5, 2007 8:19:23 PM

What part of "thou shalt not kill" does thou not get?

Posted by: M.P. Bastain | Sep 7, 2007 9:59:50 AM

M.P.: what about "seperation of church (i.e. cults) and state" don't you get?

Posted by: dweedle | Sep 12, 2007 4:34:59 PM

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