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June 1, 2008
Some sober reflections on emotions and the death penalty
Inspired in part by the Kennedy capital child rape case and other notable recent death penalty debate, Stephanos Bibas and I put together a new commentary (now available here at SSRN) titled "Engaging Capital Emotions." Here is the abstract:
The Supreme Court, in Kennedy v. Louisiana, is about to decide whether the Eighth Amendment forbids capital punishment for child rape. Commentators are aghast, viewing this as a vengeful recrudescence of emotion clouding sober, rational criminal justice policy. To their minds, emotion is distracting. To ours, however, emotion is central to understand the death penalty. Descriptively, emotions help to explain many features of our death-penalty jurisprudence. Normatively, emotions are central to why we punish, and denying or squelching them risks prompting vigilantism and other unhealthy outlets for this normal human reaction. The emotional case for the death penalty for child rape may be even stronger than for adult murders, contrary to what newspaper editorials are suggesting. Finally, we suggest ways in which death-penalty abolitionists can stop pooh-poohing emotions' role and instead fight the death penalty on emotional terrain, particularly by harnessing the language of mercy and human fallibility.
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Two leading sentencing scholars have posted a paper revolving around the Louisiana v. Kennedy case. Here is the abstract on SSRN:The Supreme Court, in Kennedy v. Louisiana, is about to decide whether the Eighth Amendment forbids capital punishment for ... [Read More]
Tracked on Jun 3, 2008 10:29:59 PM
Comments
True, see Descartes' Error: Emotion, Reason, and the Human Brain by Antonio R. Damasio. (Neurologist Damasio's refutation of the Cartesian idea of the human mind as separate from bodily processes draws on neurochemistry to support his claim that emotions play a central role in human decision making.)
Emotionally speaking though the greatest error would be putting the responsibility of the execution at the feet of a child. It is irresponsible to place that burden on someone so little he/she cannot comprehend the harm child abuse does. But then no compassionate person would say to that same child he or she has a murdered soul either, which is what justifies the death penalty for child rape. What is the child believes it?
The issue is not a lack of emotion or empathy, but a proper direction and harnessing of both to the most effective end.
Posted by: George | Jun 2, 2008 12:35:07 AM
Child rape is an absolutely horrible, and any individual found guilty should serve hefty jail time, but to give these people the death penalty is taking things way too far. It's a highly emotional issue, and parents groups and child welfare organizations might try to point the finger and say that opposition to their cause might mean they are weak on crime or don't care about children. But whether a person's perspective is strictly according to the law, or even going by religious guidelines, capital punishment for child rape is grossly inapropriate.
Posted by: Joe | Jun 2, 2008 11:31:56 AM
I think, Doug, when you say appeal to emotion, what you really mean is sentimentality and squeamishness. In all but the most unusual of cases, a killer's (or some sick pervert's) appeal for mercy, should, to any moral observer, ring pretty hollow. So and so had a tough childhood etc. etc.--ok, fine, but that really pales in comparison with the pain and suffering caused by murdering someone or penetrating a prepubescent girl or boy. Why should someone who has committed such an awful crime be the beneficiary of mercy? What possible claim could he or she have to mercy?
The person has none. Rather the appeal is to a weepy sentimentality and squeamishness about doing what is to be done. I am sure that sentencing someone to death is difficult, but I really do not understand the hand-wringing. The crimes are horrible, and the person has forfeited his right to exist in society by his own acts. Putting innocence issues aside, what is the big deal about killing him? It's either that, or throw him in prison for a long stretch. My point is that society is going to ruin this guy's life, so what's the point of getting worked up about whether he's executed or not? For me, a FAR more worrisome prospect, if I ever sat on a jury, would be to erroneously convict someone or erroneously acquit someone. I would lose far more sleep over that than any decision about death.
Moreover, the idea that because someone had a tough life growing up a jury is now supposed to stay its hand? Is it just me, or does anyone else wonder how silly that sounds? If the transgression was as bad as capital murder or capital child rape, how are the emotions about that transgressions changed because Johnny had a tough childhood? The answer is that they should not be, but putting on some sob story allows an appeal to some mushy sensibility.
Executing a murderer is not that big of a deal--it certainly is a far less a deal than convicting someone of murder.
Posted by: federalist | Jun 2, 2008 9:02:01 PM
"I think, Doug, when you say appeal to emotion, what you really mean is sentimentality and squeamishness."
Who would that be? Browse liberal site comments on the FLDS raid and you will find absolutely no squeamish sentimentality. Quite the opposite. Most would throw due process and the rule of law under the bus for prosecutions.
Posted by: George | Jun 3, 2008 12:17:50 PM
federalist, "executing a murderer is not that big a deal?"
Have you ever planned a funeral for a healthy person? Have you ever attended an execution and watched as the daughter of the defendant bolts out of the room screaming, scarred for life? Have you ever met with a warden who goes over the checklist of an execution, visitations, last meal, gathering personal effects, etc. And then after the meeting you realize the warden omitted from the checklist, "then we kill your client?" I believe the only way the warden can continue to do his job execution after execution after execution is to become emotionally detached from the reality of what he is doing.
I don't like flies. I also don't like people who pull wings off flies. I don't like situations that require good people like wardens to develop a callous over their soul so they can get through their job.
Capital punishment harms the executioner, (who in a democracy is all of us) just as it harms the executed.
Bruce Cunningham
Posted by: | Jun 3, 2008 12:35:14 PM
Bruce, is that supposed to back me off? The thrust of my point, of course, is that we ask jurors to lock people up in cages for life, and they do it. That is a far more weighty decision than the marginal difference between execution and a serious stretch, if not life, in prison. It cannot be forgotten that condemned murderer intentionally (generally speaking anyway) killed another human being. Let that sink in. Executing such a person is a solemn occasion etc. etc., but killing the murderer is simply the carrying out of justice.
One would hope, of course, that a father knowing he is to be executed would explain to his daughter that he deserves his fate and that this is the price you pay when you kill someone.
Perhaps, I would feel differently if I had to be a warden. I doubt it though. I wouldn't like killing--who does? But I don't think I would shrink an inch from it. Executions reflect the sad reality that we live in an imperfect world, where murderers work their bloody deeds. Those bloody deeds cry out for justice. And giving a murderer the "big jab" brings justice.
Your appeal is to squeamishness--what, we're not going to execute someone because his daughter would be upset?
Posted by: federalist | Jun 3, 2008 1:28:53 PM
since you didn't answer any of my questions, I assume the answer is no and you have no firsthand knowledge of what you are talking about. And my appeal was not to something as trivial as squeamishness. I should resist the temptation to continue this discussion because if you don't already know what is fundamentally wrong with your statement that executing a person is no big deal you will never understand. I can respect someone who supports capital punishment for their own reasons but appreciates the seriousness of the issue. I cannot abide flippancy.
Posted by: bruce cunningham | Jun 3, 2008 9:57:56 PM
It's by no means flippancy, and it is by no means fundamentally wrong. Do you dispute that the guilt determination for murder is far more of a big deal than the decision to execute? And what's so profound about a killer paying for his crime with his own life?
You, of course, choose to distort what I have written. I'll quote the whole thing: "Putting innocence issues aside, what is the big deal about killing him? It's either that, or throw him in prison for a long stretch. My point is that society is going to ruin this guy's life, so what's the point of getting worked up about whether he's executed or not?" The "delta" between a long long sentence and executing a man isn't that much. I think my point plain.
In any event, you may think what you will of me. I can tell you this--I am proud of the fact that our society still has the moral courage to put down some of these animals. They richly deserve their fate. And in my view, getting worked up about the execution of heinous murderers is silly. Do you get worked up when a burglar is shot by a homeowner? Or how about this--Iranian terrorists, as I write this, are sending weapons into Iraq to kill our guys. That's something to get worked up about. Executing a murderer--all in the day's work of justice.
Squeamishness. It's pathetic. If you oppose capital punishment, fine. I can respect that. But weepiness over a killer's fate, it's moral preening more than anything else--a faux outrage, and fundamentally unserious.
Posted by: federalist | Jun 4, 2008 12:21:11 AM
Since Federalist isn’t a lawyer (as he admitted), I don’t really expect a serious response. His brain is simply wired different and his kind does a different job in society.
But, I wonder how the non-lawyers consider killing someone to be an act of “moral courage.” Does this mean that not killing someone, but choosing to pay money to keep them in a hole is immoral or cowardly.
Perhaps a lawyer that supports the killing practice can provide some background as to what the non-lawyers think they mean by “morality” and “courage.”
If you are a felon or a non-lawyer, don’t bother to respond. I want a serious and in-depth answer to this question.
Posted by: S.cotus | Jun 4, 2008 8:16:41 AM
Federalist - do you realize that Bruce Cunningham actually represents death row inmates? Hardly helps your case to be attacking a person with experience based on a rather bizarre theory that death is no big deal. I know when I represented defendants, even ones that I knew were guilty, that when they got sent to prison for a long time, it hurt - because you work with a person, even a criminal who did something horrible, you are going to see them as a person and even like them as a person. One of the main reasons why I moved to civil law rather than criminal was that it was too stressful to have to deal with another person's freedom. I cannot imagine what it is like to have a client face the death penalty or actually get killed - but it must be horrible. Keep on fighting the good fight Bruce - must be a tough job in North Carolina and I don't know how you can do it, but keep on fighting.
The death penalty can only exist through the dehumanization of criminals in the mind of the general public. If the general public sees the criminal as a person who made a horrible mistake, they are not likely to support the death penalty (in fact, that is why most defense attorneys seek to humanize their clients as much as possible). That is why death penalty supporters need to get people to act emotionally with emotionally charged terms like "animal." To act as if the death of another person is not a big deal is pure sociopathy. Fortunately, most judges, politicians, and prosecutors take their responsibilities serious and treat death penalty cases as being a big deal even if they support the death penalty. If the death penalty is no big deal, that means that a society views life as cheap (and in fact, if you really think about it, if the defendant thought that life was a big deal in the first place, they probably would not have been facing the death penalty). That Hobbesean state of nature is hardly something for a society to aspire to because it places society on the same level as the murderer. It is hardly concern for "a murderer" that drives opposition to the death penalty - it is concern for society itself. It is concern about what does the death penalty does to society and the message it sends to society.
Yes, federalist it is true that keeping a person in a cage for the rest of their life isn't much different from killing them. However, that is hardly an argument for the death penalty. Instead, it shows how weak the arguments for the death penalty really are.
Posted by: Zack | Jun 5, 2008 1:28:52 PM
I do realize Bruce Cunningham represents death row inmates. So what? Just because he feels bad when one of his clients gets executed, he has some deep and unique insight. I think not.
Zack, your post has some good self-parody in it. But before that, I'll address a distortion in your post.
"Hardly helps your case to be attacking a person with experience based on a rather bizarre theory that death is no big deal."
I didn't say that death is no big deal, I said that executing murderers is no big deal, when compared to the alternative of locking them up for life. Moreover, there is nothing profound about making a moral judgment that a killer deserves to pay for his crime with his own. Carrying out that decision is simply doing what is to be done. I am reminded of a surpassing silly editorial in some South Dakota paper about that state's first execution in a number of decades. It called on citizens of the state to reflect on the enormity of what the state was doing that night. Risible. There's a war on, and most people are working hard trying to provide for their families and build their lives--and some self-important prigs are asking them to engage in emotional onanism over the fate of some guy who helped torture a young man to death.
"The death penalty can only exist through the dehumanization of criminals in the mind of the general public."
Oh, that's right, people have to be tricked into believing that some people who commit murder forfeit their own lives.
"That Hobbesean state of nature is hardly something for a society to aspire to because it places society on the same level as the murderer."
Ok, society carrying out a punishment authorized by law puts it on the same level as a murderer.
"It is hardly concern for 'a murderer' that drives opposition to the death penalty - it is concern for society itself. It is concern about what does the death penalty does to society and the message it sends to society."
This is the chicken little argument. Oh no, we executed a small number of murderers, and it's turning us into barbarians or whatever perjorative term some self-righteous abolitionist can dream up. Of course, the same threat to our social fabric doesn't occur when we foist violent criminals on our streets to do their bloody work. If executing a guilty murderer is such a stain on our society, one is left to wonder how the deaths of those innocent who die at the hands of murderers or other proven violent criminals released from prison. Oh, my bad, that's enlightened. Sorry.
"To act as if the death of another person is not a big deal is pure sociopathy."
This one is simply too good to pass up. First, it smacks of that trite "There's a life at stake" nonsense whenever someone wants to overturn some killer's death sentence for some cockamamie reason or when some judge wants to drag out proceedings. Second, it is completely over the top to suggest that positing that the bulk of the moral agonizing over what is to be done with a man accused of murder should be on whether or not he did it is sociopathic. No. Executing murderers is not sociopathic. It is an exercise in moral courage.
I support capital punishment. It's that simple. I think it deters crime, and I think it sends the proper moral message to society. It is not something to be ashamed of. I think it is a net social good, and it should be carried out more often.
Posted by: federalist | Jun 5, 2008 9:51:47 PM
There is no reliable evidence either way on whether the death penalty actually deters crime. As I have stated previously, there is little or no motivation for people to do an actual serious study on the deterrence factor. In any case, economic modeling is often weak in that it assumes a rational actor and eliminates all but one variable. In my opinion, law and economics theory makes little sense when it comes to violent felonies - even Judge Posner has implicitly acknowleged that his law and economics model has some serious issues in dealing with violent felonies. The deterrence model for the death penalty is very weak because it rests on the assumption that people value life above freedom. Because many people value freedom above life or have religious convictions that the end of life is not such big deal (such as a belief in an afterlife or reincarnation) the deterrence model of the death penalty collaspes from the start because it is based on faulty assumptions.
Yet, it is also notable that historically the death penalty flourished at time and in societies where life was cheap. Thus, it seems there is pretty strong historical and current evidence that there is at least a corrilation between the death penalty and a view that life is cheap. It defies all reasonable thought to not think that there is a connection between China having the most active death penalty and the numerous industrial accidents and poor safety conditions of the Chinese factories. At the time that the United States had the most dangerous working conditions in factories, railroads, and the like, the death penalty was very active. Consider the late 19th and early 20th centuries - the rates of execution were undoubtably much higher than today (especially when one adds in lynchings and other executions outside of the normal judicial system). The executions took place much quicker. Yet, society as a whole was much more dangerous - dangerous products were allowed to be sold, factories, coal mines, railroads, ocean transport, and other industries were extremely dangerous to work for or travel on. It is interesting that support for the death penalty declined and the number of executions declined at the same period that there was more emphasis on safe working conditions, safe products, etc. Interesting that the reemergence of the death penalty closely parellels the movement to limit regulation of businesses and government protection of workers and consumers from dangerous conditions. Thus, there is pretty strong evidence of a connection at least between the death penalty and a view that life is more expendable.
The death penalty can only send a "proper moral message to society" if one rejects Christian theology. There is no way that support for the death penalty can be reconciled with the teachings of Jesus Christ and the New Testament. Yes, the Old Testament provides support for the death penalty, but the New Testament specifically rejected the need to follow Jewish law (and it also helps to remember that the parts of the Old Testament cited for supports of the death penalty were in actuality a civil law code and that parts are identical to the ancient Babylonian law code). At the same time, since there appears to be a connection between support for the death penalty and disregard for public safety it does appear that the death penalty does cheapen life. There is pretty solid historical evidence that shows that at the same time support for the death penalty is highest, support for public safety and public safety steps are at the lowest. Far from evidence that the death penalty protects society, there is much evidence (historical and current) that the death penalty and the attitude behind support for the death penalty that killing can be okay causes grave harm to society. The arguments for the death penalty are extremely weak and do not withstand close scrutiny because they are based on faulty assumptions of human behavior and ignoring the historical evidence which shows that there is a clear connection between having the death penalty and having a cheap view of life.
Posted by: Zack | Jun 6, 2008 10:25:08 AM
"There is no reliable evidence either way on whether the death penalty actually deters crime."
Of course, we do know that the death penalty is a specific deterrent. Moreoever, one would think that the burden of proof is on those opposing capital punishment to overcome the commonsense view that people don't want to die and that some, though by no means all, people are therefore deterred.
"It is interesting that support for the death penalty declined and the number of executions declined at the same period that there was more emphasis on safe working conditions, safe products, etc. Interesting that the reemergence of the death penalty closely parellels the movement to limit regulation of businesses and government protection of workers and consumers from dangerous conditions. Thus, there is pretty strong evidence of a connection at least between the death penalty and a view that life is more expendable."
There go those meanie Republicans again . . . .
"Far from evidence that the death penalty protects society, there is much evidence (historical and current) that the death penalty and the attitude behind support for the death penalty that killing can be okay causes grave harm to society."
Killing most certainly can be ok. If someone tries to come into my house, I will do my utmost to kill him. I have kids, and I am not about to risk their lives or safety for the benefit of someone trying to get in my house. But more to the point, I noted in my previous post that anti-capital punishment people get so worked up about how executions cause grave harm to society, but say nothing about the costs of foisting violent criminals upon society after short stints in prison. I never can seem to get an answer on that. Killing Kenneth McDuff was such a bad thing, but letting him out (to kill at least 6 more people) after he senselessly murdered three teens was no big deal. Interesting.
Posted by: federalist | Jun 9, 2008 9:36:55 PM
emotion and reason are the foundation of legal statutes and the process which follows.
Jay walking doesn't produce much emotional hand wringing, but is a danger and is addressed appropriately.
The rape and murder of children produces an immense outpouring of emotion, anger, sorrow and disgust and alwasy should. However, the criminal process which follows is guided by reverence for due process.
All violent crimes produce an emotional response and they should.
But, death penalty due process protections are extreme, for that very reason.
Death Penalty: Incredible due process protections for the defendant
Dudley Sharp, Justice Matters, contact info, below
TRIAL
A death sentence requires that the prosecution must prevail in 60 out of 60 issues, or 100%.
To avoid death, the defendant/defense counsel must prevail in only 1 out of 60 issues, or 1.67%.
This is a huge advantage for the defendant/defense and an incredible mountain to climb for the prosecution.
See DEATH PENALTY PROCEDURES, below.
APPEALS
If convicted and sentenced to death, the inmate may begin an appeals process that could extend through 23 years, 60+ appeals and 200+ individual judicial and executive reviews of the inmate's claims, which can number in the dozens or hundreds -
The inmate needs to prevail on only one issue to overturn the death sentence or verdict.
The state needs to prevail on all issues to enforce the death sentence.
A huge advantage for the inmate and an incredible burden on the state.
The average time on death row, prior to execution, is about 10 years.
DEATH PENALTY PROCEDURES
To punish with death, each one of the 12 jurors must agree with the prosecution in each of five specific areas ( 12, 14, (a)14, (b)15, (c)16, and (d)17 (with 18 & 19), as below.
There are at least 28 procedures necessary in reaching a death sentence. They are: (1) The crime must be one listed as a capital crime in the penal code; (2) a suspect must be identified and arrested; (3) Beginning with the Bill of Rights, the Miranda warnings and the exclusionary rules, U.S. criminal defendants and those convicted have, by far, the most extensive protections ever devised and implemented; (4) in Harris County (Houston), Texas a panel of district attorneys determines if the case merits the death penalty as prescribed by the Penal Code (See 12-19); (5) a grand jury must indict the suspect for capital murder; (6) the suspect is presumed innocent; (7) the prosecution must prove to the judge that the evidence, upon which the prosecution will rely, is admissible; (8) the defendant is assigned two attorneys. County funds are provided to defense counsel for investigation and trial; (9) it takes 3-12 weeks to select a jury; (10) trial is conducted; (11) the burden of proof is on the state; (12) all 12 jury members must find for guilt, beyond a reasonable doubt. In most cases, the jury knows nothing of the defendant's previous criminal acts, at this stage. If found guilty, then, the punishment phase of the trial begins; (13) the prosecution presents additional damning evidence against the murderer, i.e., other crimes, victims, victims’ or survivors’ testimony, police reports, etc; (14) In order to find for death, the issues to be resolved by the jury are {a}(14) did the defendant not only act willfully in causing the death, but act deliberately, as well, {b}(15) does the evidence show, beyond a reasonable doubt, that there is a likelihood that the defendant will be dangerous in the future, {c}(16) if there was provocation on the part of the victim, were the defendant's actions unreasonable in response to the provocations and {d}(17) is there something about the defendant that diminishes moral responsibility or in some way mitigates against the imposition of death for the defendant in this case, whereby, (18) the defense presents all mitigating circumstance, which may lesson the probability of the jury imposing death , i.e., family problems, substance abuse, age, no prior criminal record, mental disability, parental abuse, poverty, etc. Witnesses, such as family, friends, co-workers, etc., are presented to speak and offer the positive qualities of the defendant; (19) the jury must take into consideration those mitigating circumstances (Penry decision) and, if only 1 juror believes that the perpetrator deserves leniency because of any mitigating circumstances, then the jury cannot impose the death penalty; and (20) when the death sentence is imposed, the perpetrator receives an automatic appeal. (21& 22) the death row inmate is provided an attorney, or attorneys, to handle the direct appeal, at county expense, through both the state and federal courts; (23 & 24) the state pays attorneys for the inmate's habeas corpus appeals, at both the state and federal level; (25 & 26) death row inmates may be granted a hearing, in both state and federal court, to present post conviction claims of innocence. The burden of proof for these claims of innocence mirrors that used by the Federal courts; and (27 & 28) Convictions and sentences are subject to pardon or sentence reduction through the executive branch of government, at both the state level (Governor) and federal level (President).
These 28 procedures represent the broad categories of defendant and inmate protections. Within these 28 procedures, there are hundreds, if not thousands, of additional procedures and protections.
In some jurisdictions, the defense must prove mitigating circumstances by a preponderance of the evidence and the prosecution must prove aggravating circumstances beyond a reasonable doubt. This is a huge advantage for the defendant and a major disadvantage for the prosecution.
NOTE: PROCEDURES MAY BE SOMEWHAT DIFFERENT IN YOUR STATE
Dudley Sharp, Justice Matters
e-mail [email protected], 713-622-5491,
Houston, Texas
Mr. Sharp has appeared on ABC, BBC, CBS, CNN, C-SPAN, FOX, NBC, NPR, PBS , VOA and many other TV and radio networks, on such programs as Nightline, The News Hour with Jim Lehrer, The O'Reilly Factor, etc., has been quoted in newspapers throughout the world and is a published author.
A former opponent of capital punishment, he has written and granted interviews about, testified on and debated the subject of the death penalty, extensively and internationally.
Pro death penalty sites
homicidesurvivors(dot)com/categories/Dudley%20Sharp%20-%20Justice%20Matters.aspx
www(dot)dpinfo.com
www(dot)cjlf.org/deathpenalty/DPinformation.htm
www(dot)clarkprosecutor.org/html/links/dplinks.htm
www(dot)coastda.com/archives.html
www(dot)lexingtonprosecutor.com/death_penalty_debate.htm
www(dot)prodeathpenalty.com
www(dot)yesdeathpenalty.com/deathpenalty_co
yesdeathpenalty.googlepages.com/home2 (Sweden)
www(dot)wesleylowe.com/cp.html
Permission for distribution of this document, in whole or in part, is approved with proper attribution.
Posted by: dudleysharp | Jun 15, 2008 11:24:33 AM
Let's be objective.
The Death Penalty: More Protection for Innocents
Dudley Sharp, Justice Matters, contact info below
Often, the death penalty dialogue gravitates to the subject of innocents at risk of execution. Seldom is a more common problem reviewed. That is, how innocents are more at risk without the death penalty.
Living murderers, in prison, after release or escape or after our failures to incarcerate them, are much more likely to harm and murder, again, than are executed murderers.
This is a truism.
No knowledgeable and honest party questions that the death penalty has the most extensive due process protections in US criminal law.
Therefore, actual innocents are more likely to be sentenced to life imprisonment and more likely to die in prison serving under that sentence, that it is that an actual innocent will be executed.
That is. logically, conclusive.
16 recent studies, inclusive of their defenses, find for death penalty deterrence.
A surprise? No.
Life is preferred over death. Death is feared more than life.
Some believe that all studies with contrary findings negate those 16 studies. They don't. Studies which don't find for deterrence don't say no one is deterred, but that they couldn't measure those deterred.
What prospect of a negative outcome doesn't deter some? There isn't one . . . although committed anti death penalty folk may say the death penalty is the only one.
However, the premier anti death penalty scholar accepts it as a given that the death penalty is a deterrent, but does not believe it to be a greater deterrent than a life sentence. Yet, the evidence is compelling and un refuted that death is feared more than life.
"This evidence greatly unsettles moral objections to the death penalty, because it suggests that a refusal to impose that penalty condemns numerous innocent people to death." (1)
" . . . a serious commitment to the sanctity of human life may well compel, rather than forbid, (capital) punishment." (1)
"Recent evidence suggests that capital punishment may have a significant deterrent effect, preventing as many as eighteen or more murders for each execution." (1)
Some death penalty opponents argue against death penalty deterrence, stating that it's a harsher penalty to be locked up without any possibility of getting out.
Reality paints a very different picture.
What percentage of capital murderers seek a plea bargain to a death sentence? Zero or close to it. They prefer long term imprisonment.
What percentage of convicted capital murderers argue for execution in the penalty phase of their capital trial? Zero or close to it. They prefer long term imprisonment.
What percentage of death row inmates waive their appeals and speed up the execution process? Nearly zero. They prefer long term imprisonment.
This is not, even remotely, in dispute.
Life is preferred over death. Death is feared more than life.
Furthermore, history tells us that "lifers" have many ways to get out: Pardon, commutation, escape, clerical error, change in the law, etc.
In choosing to end the death penalty, or in choosing not implement it, some have chosen to spare murderers at the cost of sacrificing more innocent lives.
--------
Furthermore, possibly we have sentenced 20-25 actually innocent people to death since 1973, or 0.3% of those so sentenced. Those have all been released upon post conviction review. The anti death penalty claims, that the numbers are significantly higher, are a fraud, easily discoverable by fact checking.
6 inmates have been released from death row because of DNA evidence. An additional 9 were released from prison, because of DNA exclusion, who had previously been sentenced to death.
The innocents deception of death penalty opponents has been getting exposure for many years. Even the behemoth of anti death penalty newspapers -- The New York Times -- has recognized that deception.
"To be sure, 30 or 40 categorically innocent people have been released from death row . . . ". ' (2) This when death penalty opponents were claiming the release of 119 "innocents" from death row. Death penalty opponents never required actual innocence in order for cases to be added to their "exonerated" or "innocents" list. They simply invented their own definitions for exonerated and innocent and deceptively shoe horned large numbers of inmates into those definitions - something easily discovered with fact checking.
There is no proof of an innocent executed in the US, at least since 1900.
If we accept that the best predictor of future performance is past performance, we can reasonable conclude that the DNA cases will be excluded prior to trial, and that for the next 8000 death sentences, that we will experience a 99.8% accuracy rate in actual guilt convictions. This improved accuracy rate does not include the many additional safeguards that have been added to the system, over and above DNA testing.
Of all the government programs in the world, that put innocents at risk, is there one with a safer record and with greater protections than the US death penalty?
Unlikely.
-----------------------
Full report - All Innocence Issues: The Death Penalty, upon request.
Full report - The Death Penalty as a Deterrent, upon request
(1) From the Executive Summary of
Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs, March 2005
Prof. Cass R. Sunstein, Cass_Sunstein(AT)law.uchicago.edu
Prof. Adrian Vermeule , avermeule(AT)law.harvard.edu
Full report http://aei-brookings.org/admin/authorpdfs/page.php?id=1131
(2) "The Death of Innocents': A Reasonable Doubt",
New York Times Book Review, p 29, 1/23/05, Adam Liptak,
national legal correspondent for The NY Times
Posted by: dudley sharp | Jun 15, 2008 11:27:09 AM
