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October 17, 2013

"The Federal Death Penalty and the Constitutionality of Capital Punishment"

The title of this post is the title of this notable new article by Scott Howe recently posted to SSRN. Here is the abstract:

The federal death penalty results in few executions but is central to the larger story of capital punishment in the United States. In the last decade, federal statutes governing the federal death penalty seem to have exerted outsize influence with the Supreme Court in its development of “proportionality” doctrine, the rules by which the Justices confine the use of capital punishment under the Eighth Amendment.  In three cases rejecting capital punishment for mentally retarded offenders, juvenile offenders and child rapists, the Court noted that federal death-penalty statutes would have conferred protection against federal death prosecutions.

These decisions, and current federal death-penalty law, suggest that the Court could resolve certain nuanced proportionality problems by restricting the death penalty in the states.  However, for observers who hope to see the Court eventually use proportionality analysis to abolish the death penalty or greatly restrict its use, these developments seem to carry mostly negative implications.  The relatively broad application of federal death-penalty law would weigh against sweeping proportionality restrictions on the death penalty for murder.  However, the article explains why the Court’s proportionality analysis fails adequately to consider low execution rates and why the rarity of federal executions, if persistent, should undermine any notion that federal death-penalty law and practice supports a national consensus favoring capital punishment for ordinary murder.

October 17, 2013 at 08:11 AM | Permalink


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An unpleasant but excellent report from Syracuse details a “Federal Death Penalty”
case, with the pretense of the - capital defense bar - writ large.

The tortured logic, Machiavellianism, railing accusations, and moral poverty emanating from
their own mouths – Peebles & Moynihan - is staggering, no?

| U.S. Weighs Death Penalty for Renz, Defense: Execution would be ‘vengeful’|

+1 Renz pleaded guilty to the murder and rape in July .. Renz murdered Bresnahan and raped the girl after he escaped from an electronic ankle bracelet

+2 The U.S. Attorney's Office notified Renz's lawyers in April that prosecutors were considering .. the death penalty.

+3 The threat of the death penalty was a bargaining chip the Onondaga County District Attorney's Office used with Renz to get him to plead guilty
and avoid a lengthy trial process, District Attorney William Fitzpatrick has said.
-1 But just because Renz committed crimes while under federal supervision shouldn't justify it becoming a capital offense, Peebles said.
-- "Because they dropped the ball, does that mean they should in fact be trying to prosecute him twice for the same offense?" she asked.
--"That seems somewhat vengeful. They had an opportunity to supervise him. It didn't work."

-2 Whether (federal prosecutors) want to get some kind of revenge for him doing this while he was on pretrial releases .. It makes no sense."

-3 Renz's lawyer for the county court case, Kenneth Moynihan, agreed that life in prison without parole should be enough.
-- "There would be no point to the death penalty," he said. "I guess it would just be to satisfy them because this happened on their watch."

[ The Federal Public Defenders Office gave a 60-page letter to federal prosecutors arguing against
certifying the case as death-penalty eligible, according to Federal Public Defender Lisa Peebles. ]
~~online version@ www.syracuse.com/news/index.ssf/2013/10/

Posted by: Adamakis | Oct 17, 2013 2:00:07 PM

Proportionality implies fairness and symmetry between an offense and a punishment. The Godfather told the funeral director whose daughter was raped and who wanted the rapists murdered, that they had not killed his daughter, so they could not be killed.

1) Punishment is not effective for the violent career criminal since the rewards of crime are irresistible.

2) Punishment and retribution are from the Bible, as the analysis of the mens rea is from the catechism analysis of mortal sin (a violation of the 10 Commandments). As such, Sharia would be unacceptable in our secular nation, Well, so are the Bible and Catechism as sources of law. (Sharia law is 90% sensible, 10% nutty.)

3) The death penalty is not a punishment, since it ends all behavior not just the targeted behavior. It is an expulsion. Incapacitation is acceptable as a category of goal of criminal law.

4) 123D solves the problem of false confessions, false convictions, and putting innocent people to death. If the deceased is innocent, that is OK because he is a proven bad guy from 1 and 2.

5) The Supreme Court should be impeached for making up doctrines, in insurrection against the constitution.

6) The defendant should be waterboarded before execution, full time, to solve many other unsolved crimes.

7) Appellate lawyers bringing up pretextual arguments should be made to pay costs from personal assets.

8) Legislation should enable wrongful death litigation in the cases of innocent people being executed.

9) Improve the Court by increasing its member to a more legislative 400, moving it to the center of the Nation, such as Kansas, and making the number of Justices an even number.

10) The death penalty is paid for by the public to enhance its safety. It is not to give lawyers and judges jobs.

Posted by: Supremacy Claus | Oct 17, 2013 4:16:36 PM

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