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December 30, 2013

NY Times editorial talks of "Slow Demise of Capital Punishment"

The title of this new New York Times editorial, "The Slow Demise of Capital Punishment," is probably better viewed as wishful thinking rather than a sound prediction. Nevertheless, as excerpted below, the New York Times editorial board makes its most potent pitch against the death penalty in this piece:

More states are coming to recognize that the death penalty is arbitrary, racially biased and prone to catastrophic error. Even those that have not abolished capital punishment are no longer carrying it out in practice.

In 2013, Maryland became the sixth state to end capital punishment in the last six years. Eighteen states and the District of Columbia have abolished the penalty, and it is dormant in the federal system and the military. Thirty states have had no executions in the last five years.

As it becomes less frequent, the death penalty also becomes more limited to an extremely small slice of the country, and therefore all the more arbitrary in its application. All 80 death sentences in 2013 came from only about 2 percent of counties in the entire country, and all 39 executions — more than half occurred in Texas and Florida — took place in about 1 percent of all counties, according to a new report by the Death Penalty Information Center. Eighty-five percent of all counties have not had a single execution in more than 45 years.

Public support for the death penalty — an important factor in the Supreme Court’s consideration of its constitutionality — is at its lowest level in four decades, and 40 percent of people surveyed by Gallup say they do not believe it is administered fairly....

Of course none of this matters to, say, Troy Davis or Cameron Todd Willingham, both of whom were executed in recent years despite deep doubts about their guilt. Nor is it of much use to the 3,100 people still sitting on death row around the country.

The argument is not that all of these people are innocent, or that they deserve to be released. Most would be justly imprisoned for most if not all of their life. But the death penalty as applied in America now — so thoroughly dependent on where the defendant lives and how much money he can spend on his defense — violates the constitutional guarantees of due process and equal protection, and no longer can overcome the Eighth Amendment’s ban on cruel and unusual punishments.

The dishonor and shame of capital punishment are further highlighted by the current shortage of lethal-injection drugs, a “crisis” resulting from the refusal of European drug makers to provide them for executions. As a result, states that use lethal injection have turned to unregulated compounding pharmacies, and have even passed laws to hide the identity of those pharmacies and the chemical makeup of the drugs. This only underscores the fact that when it comes to the death penalty, the United States is virtually alone in the Western world.

Actually, all of these developments are in fact of great "use to the 3,100 people still sitting on death row around the country." Given that all these developments help explain why the US now averages less than 50 executions each year (and only a few dozen outside of Texas), the vast majority of murderers serving death sentences now should know that they are far more likely to die of old age in prison rather than in an execution chamber. (And, perhaps better yet for these murderers, their legal appeals are far more likely to get extra attention from lawyers and judges than the tens of thousands of defendants serving life sentences for lesser crimes.)

December 30, 2013 at 10:35 AM | Permalink


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As other threads have pointed out, the DNA exonerations have provided strong ammunition to the anti D-P crowd. Even rabid D-P proponents have been shaken.

The other factor (as pointed out by others) are the never-ending cases of prosecutorial cheating--hiding favorable evidence from the defense. See Case of Michael Morton.

In light of the above, even in cases where evidence appears overwhelming, one or more jurors (at least in the penalty phase) --have lingering doubts.

Prediction: Regardless of popular sentiment, the number of cases where death is imposed will continue to decline.

Posted by: anon | Dec 30, 2013 11:25:53 AM

Anon. Stop driving until the error rate, 30,000 traffic deaths of innocent people has been corrected.

OK, you can walk. No. Stop walking until the error rate of 1000 pedestrian deaths has been corrected.

The exoneration rate means tort liability is justified, not that the death penalty should end. Tort liability is available for traffic and pedestrian fatalities.

Posted by: Supremacy Claus | Dec 30, 2013 12:12:10 PM

Where the death penalty has been ended by law, massive numbers of appellate lawyers have become immediately unemployed.

Posted by: Supremacy Claus | Dec 30, 2013 12:14:14 PM

Anon is correct. I was on a recent jury. During deliberations, several folks brought up the DNA exonerations and one talked about prosecutors playing dirty hiding the ball. We voted for LWOP.

Posted by: former juror | Dec 30, 2013 12:27:01 PM

former juror --

Why did you vote to convict at all, and then to send the must-really-have-been-innocent-because-prosecutors-cheat defendant to what is really just a death penalty in slow motion?

Posted by: Bill Otis | Dec 30, 2013 2:28:05 PM

Absolutely not clear if death penalty is more cruel than any long prison sentence. I invite all DP obstructionists to spend just 48 hours in a prison. Tell us about cruelty.

LWOP is an absolutely immune license to kill. That is highly foreseeable, like saying the sun will rise in the East tomorrow. Therefore LWOP parole violates the due process rights of all future victims, prisoners, guards, visitors. Lifer kills female guard not returning his sexual advances. The guard supervisor replies, "He definitely lost his cafeteria privileges, now."

It is moral if not a duty for the families of the murder victims killed inside prisons to bring the lash to all judges and legislators obstructing a productive death penalty, as in 10,000 violent criminals are executed a year. Dropping murder rates are from advances in trauma care from our misadventures abroad. If 5000 warriors have been killed, their sacrifice has saved many multiples of that number in civilian trauma care.

Posted by: Supremacy Claus | Dec 30, 2013 7:40:32 PM

Mr. Otis, you wrote: "Why did you vote to convict at all, and then to send the must-really-have-been-innocent-because-prosecutors-cheat defendant to what is really just a death penalty in slow motion?"

A couple of the jurors had a lingering doubt as to guilt. I did not. They talked about other DNA exonerations and prosecutors hiding the ball. They said maybe in the future, something would turn up. They were adamant. We couldn't refute their arguments. So we all went along with AWOP.

Posted by: former juror | Dec 30, 2013 7:42:03 PM

former juror --

Thank you for the information.

The way to refute a "but-something-might-turn-up" argument is to point out that it is no more an actual argument than saying, "Anything is possible."

Things like that are not thinking. They are substitutes for thinking.

In the district where I used to work, the Eastern District of Virginia, Zacarias Moussaoui escaped the death penalty by the vote of a single juror who must have been "thinking" that "something might turn up."

In a sense, of course, he was right. Something did turn up: The next batch of Jihadist murders.

Posted by: Bill Otis | Dec 30, 2013 8:22:21 PM

Bill Otis, you wrote "Things like that are not thinking. They are substitutes for thinking."

If only jurors thought the way prosecutors do, everything would turn out right.

Posted by: anon12 | Dec 30, 2013 8:47:00 PM

anon12 --

No, of course, as you suggest, jurors should vote based on any freelance speculation that the defendant did something other than what the evidence established.

Or they could just take the defendant's bribe and get to your favored result the quick way.

Posted by: Bill Otis | Dec 30, 2013 9:14:17 PM

The death penalty is allowed by Jewish and Islamic sources. The New Testament as Mark Osler has noted is centered on someone believers think was a wrongly convicted person that was executed by the state. Others would say he earned it, the zealot.

There is an account of someone who actually confessed to Muhammed. He was adamant. Muhammed, it is said, really tried to find an out. Guy simply wouldn't accept it. He was executed, some said for stupidity. Both Jewish and Islamic sources often make the evidence required (e.g., multiple witnesses to an act of adultery) basically impossible. So, the death penalty, if desired, become more a technicality than anything else.

If you are going to have unanimous juries required for an execution, going to have many cases where prosecutors and even many non-prosecutors will find the holdouts. The system enables "wrong" thinking jurors. As to Jihad murderers, I'm unsure why adding to their "martyr" pool would help much, either way. I think in fact that was the idea -- not that he was innocent.

Posted by: Joe | Dec 30, 2013 10:57:59 PM

I am wondering if this time next year we will be seeing newspaper editorials on the return of the death penalty.

As the editorial note, those otherwise evil pharmaceutical corporations have been a major part of the problem with carrying out the death penalty over the past few years. This year, several states have found their way around the attempts by those corporations to prevent those states from carrying out the punishment set by law. As the experience of those states show a way through this obstruction, more states are following suit.

Thus, states that had trouble with carrying out executions in the first part of 2013 managed to carry out several toward the end of the year. They should be joined by other states in 2014. Many of these states have large numbers of inmates who have completed federal review and would have been executed a long time ago but for the problem with finding chemicals to use. Given this situation, I would not be surprised if 2014 sees 50 or more executions.

At the end of 2014, however, I would be surprised if anybody is writing about the return of the death penalty.

Posted by: tmm | Dec 31, 2013 9:37:51 AM

|"Slow Demise of Capital Punishment" |

“Slow Demise of Traditional Punishment”
“Slow Demise of Biblical Morality”
“Slow Demise of Justice”
▼… … … … … …▼
“Steady Rise of Psychological Defenses for Capital Murders”
“Steady Rise of Intellectual Defenses for Capital Murders”
“Steady Rise o' Immaturity Defenses for Capital Murders”
“Steady Rise of Lesser Sentences for Drug Offenses”
“Steady Rise of Presidential Pinnochios, Selfies”
“Steady Rise of Persecution of Conservatives”
“Steady Rise of GBL-Trans-Q”

Posted by: Adamakis | Dec 31, 2013 11:55:54 AM

Adamakis, I hope you won't be on any juries in the near future.

Posted by: Dave12 | Dec 31, 2013 12:37:35 PM

tmm --

Excellent points, as usual.

Posted by: Bill Otis | Dec 31, 2013 12:38:58 PM

Joe, you write: "The New Testament as Mark Osler has noted is centered on someone believers think was a wrongly convicted person that was executed by the state. Others would say he earned it, the zealot."

If Jesus had had someone like Judy Clark representing him, he would have been acquitted. Wait a minute. Had that happened, there would have been no crucifixion, no resurrection, and no Christianity. Hmmm. I think I'm beyond my pay grade now.

Posted by: curious | Dec 31, 2013 1:46:15 PM

True. If you are guilty, you should wish for a Casey
Anthony-calibre juror, with Clarence Darrow morality.

Posted by: Adamakis | Dec 31, 2013 1:48:25 PM

curious --

Judy Clark almost never gets an acquittal. Her specialty is in avoiding the DP at sentencing -- but we all know what sentencing follows.

Posted by: Bill Otis | Dec 31, 2013 2:37:05 PM

"will find the holdouts"

I need to work on my editing in '14 -- this should be "will find the holdouts unreasonable" or some such adjective.

I also thought I posted a reply to tmm that noted that in the next year or two something else will cause a delay to executions, doubts about the punishment enabling one thing or another, including novel things, to do that. Don't see it. No problem, but if it does show up again, that's why I said it here too.

As to curious, don't know how useful she would be back then, and I personally think Christianity reflected something that in some form was going to come regardless, perhaps not in that specific way. But, yes, believers would have to address that somehow. And, there is even a Gospel of Judas that puts him a good light.

Posted by: Joe | Jan 1, 2014 9:16:41 PM

"The foundation of our religion is a basis of fact - the fact of the birth, ministry, miracles, death, resurrection
by the Evangelists as having actually occurred, within their own personal knowledge." ~ Simon Greenleaf, “The Testimony of the Evangelists

Would you say anything so complementary about the “Gospel” of Judas?
Has anyone attested to its historicity?


Posted by: Adamakis | Jan 2, 2014 8:35:21 AM

I am not familiar with Simon Greenleaf, but the general understanding of scholars and quite a few believers would support the idea is that the canonical gospels are not just fill with material "within their personal knowledge" nor just stuff that "actually occurred" (which would be a problem with given gospels have conflicting accounts, putting aside such things as probably non-existent censuses and so forth). Many believers do have a different understanding.

Use of quotes around the word gospel there is a subjective statement of determining what is truly the good news. I think, like the birth narratives of the gospels etc., the Gospel of Judas has value based on the religious message it promotes.

Posted by: Joe | Jan 2, 2014 11:28:30 AM

Former juror's comment above is telling. Brady violations in the news are seeping into public consciousness. In the deliberations of the jury room, a memory of these violations undermines even the most ethical prosecutors' arguments for imposition of the death penalty. As recently stated by the Chief Judge of the Ninth Circuit, "There is an epidemic of Brady violations abroad in the land." United States v. Olsen, 737 F.3d 625 (9th Cir. 2013)(Kozinski, Chief Judge, dissenting from denial of rehearing en banc).

Posted by: Michael Levine | Jan 2, 2014 1:36:58 PM

Michael Levine --

Did you ever argue before Kozinski? I'm kind of recalling that he was the youngest person ever appointed to the federal appellate bench. And he is very smart -- a fact he never lets you forget, and never forgets himself.

There's a reason he never made SCOTUS -- his ego could never get through a confirmation hearing.

Posted by: Bill Otis | Jan 2, 2014 3:34:04 PM

Bill, greetings. I have argued before Kozinski several times--just recently two months ago in Hawaii (another story). He came to U.S. from Romania when he was 12. His parents were Holocaust survivors. I understand that he hardly spoke English upon his arrival. And yes he is super smart. And you are right. He was appointed to the Ninth Circuit when he was 35 years old-at that time, the youngest court of appeals judge.

As for his ego, well, since I will no doubt be appearing before him again, and since he may well read this blog, I firmly disagree with your characterization. All I can say is, he is brilliant, handsome, beneficent, wise, and courageous.....

Posted by: Michael R. Levine | Jan 2, 2014 3:53:24 PM

Michael R. Levine --

I KNEW there was a reason beyond your encyclopedic knowledge of law that you're so sought after.

Posted by: Bill Otis | Jan 2, 2014 5:06:51 PM

Joseph Story was 32 when appointed to the Supreme Court.

Posted by: Joe | Jan 3, 2014 11:08:58 AM

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