Jim Stillman
NevarFlaws in Capital Punishment
July 21st 2007 17:48
As a self-confessed Liberal, I find it difficult to evaluate most issues as an either “for” or “against” matter. This is where I have a disadvantage to those of the “other” persuasion—I refuse to call these activists “conservatives” on causes with which I disagree. Often, those usually described as “conservative” are extremely activist in a desire to regulate much private behavior. As I noted in another context, “Liberals are very broadminded: they are always willing to give careful consideration to both sides of the same side.” And then there is Robert Frost’s well known quote: “A liberal is a man too broadminded to take his own side in a quarrel.”
While I have serious doubts as to the efficacy of capital
punishment, there is a solid philosophical basis for its existence. There are, however, serious flaws in its operation and “execution”.(Sorry for the pun.)
Should this country continue to have a death penalty? Currently, a majority of Americans would probably answer "yes." The law reflects this position, and both the federal government and quite a few states provide for capital punishment in some cases. .
Interestingly, there is not much in the way of sustained public debate about the basic proposition that death is an acceptable penalty in a civilized nation. Those who favor the abolition of capital punishment typically do not engage the arguments of the majority; in turn, the majority ignores the arguments of the abolitionists.
As a start, this post will discuss the primary arguments raised in support of the death penalty and its serious flaw.
Is the Death Penalty Barbaric and Hypocritical?
Death penalty opponents often argue that the government behaves barbarically and hypocritically when it first condemns a person for deliberately killing another, and then deliberately kills the person as an expression of that condemnation. Upon closer examination, however, this claim loses much of its force.
The rule of law rests on the principle that private individuals surrender to the State their prerogative to use physical force and self-help to fight wrongful behavior. The urge for retribution is not inherently barbaric or unjust, but the law tells citizens that as a cost of being part of a society, they must resist it. In exchange, the State assumes responsibility for addressing harmful acts through the criminal law.
Most commonly, the State imprisons the perpetrator, taking his freedom away and forcing him to live in a custodial setting. If a private individual decided to substitute her own custodial setting for the State’s, however, his or her act would represent kidnapping or false imprisonment. The punishment for these crimes is itself imprisonment. Yet when a kidnapper is convicted and incarcerated, no one argues that it is barbaric or hypocritical for the State to hold him captive as a penalty for having held another captive.
In short, the State may punish criminals in ways that private individuals may not, through the use of physical force — whether it be imprisonment or infliction of the death penalty. That is because we believe that the State is usually in a better position than a private individual to determine whether it has the right person in custody (through the trial process) and if so, to issue a uniform and fair penalty. Sometimes it doesn’t work out that way.
Death Penalty as Deterrence
Death penalty supporters assert that the death penalty deters crime and criminals. Certainly, the death of a criminal will prevent him or her ever committing another crime. Statistics, however, are not consistent. States that eliminate the death penalty do not show any statistical increase in murder; conversely, states that re-instated the death penalty after the Furman decision show no statistical decrease.
The problem about executing some defendants.
This is the area in which most people have concerns. Yet this is the one area that is poorly addressed by our legal system!
The Eighth Amendment to the Constitution forbids “cruel and unusual punishment”. In a major consideration of excluding certain persons from the death penalty, Atkins v Virginia, (2002), the Supreme Court noted that that phrase must be interpreted in the light of current and evolving standards. The basic issue of capital punishment was still approved by many states and, therefore, not, per se, unusual.
Justice Paul Stevens wrote: “A claim that punishment is excessive is judged not by the standards that prevailed in 1685 when Lord Jeffreys presided over the "Bloody Assizes" or when the Bill of Rights was adopted, but rather by those that currently prevail.” Stevens then quoted from a 1958 decision. "The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. ... The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."
The Atkins case raised a very specific issue: would the execution of a mentally retarded defendant be barred by the Constitution? The Court looked at the federal death penalty statute and those of the various states. While a few states did not bar execution of the mentally retarded, most did either by law or by custom. Therefore, the ruling barred execution of the retarded; the details were left to the states to fashion.
The Supreme Court has also held in Roper v Simmons that it is unconstitutional to impose capital punishment for crimes committed by a juvenile. Again the Court searched for a national consensus. In support of the "national consensus" position, the Court noted the increasing infrequency with which states were applying capital punishment for juvenile offenders. At the time of the decision, in 2005, 20 states had the juvenile death penalty on the books, but only six states had executed prisoners for crimes committed as juveniles since 1989. Only three states had done so in the past 10 years: Oklahoma, Texas, and Virginia. Furthermore, five of the states that allowed the juvenile death penalty at the time of an earlier 1989 case had since abolished it.
Related to these cases are the decisions of Ford v Wainwright (1986) and the U.S. Court of Appeals case of Singleton v Norris (2003).
In the first case, the Supreme Court held that executing a person who is incapable of comprehending what is happening to him or why violates the Eighth Amendment's prohibition against cruel and unusual punishments. There are all sorts of rationales for this holding. In the latter case, court there approved the forcible medication of death row inmates who would otherwise be incompetent - that is, too mentally impaired - to be executed.
In justifying its decision, the court explained that it had balanced the government's interest in carrying out a scheduled execution, against the inmate's right not to endure forcible medical treatment. In that balancing, the court said, the state's interest had prevailed. (The issue of forcing medication on someone is most interesting and will likely be the topic of a future post.)
OK, so there are limits on execution for juveniles and the retarded and even the mentally incompetent. Notice one group is conspicuously absent: the convicted defendant who has discovered absolute evidence or absolute proof of innocence. And this is one of the real reasons that many oppose the death penalty.
The person awaiting execution who is innocent and can prove it.
The story of Troy Anthony Davis is illustrative. Davis was scheduled to be executed last week; he has now received a 90-day stay of execution and he has an appeal pending in the Georgia Supreme Court asking for a new trial. I have no idea if he is an innocent person. I do know that he was convicted of the 1989 killing of a police officer, Mark Allen MacPhail, in Savannah, Ga. And I know that he was on the scene, a Burger King parking lot, on that night.
Davis has always maintained his innocence. And that no physical evidence - no gun, no fingerprint, no DNA - ever tied him to the crime. He was convicted on the testimony of nine key witnesses. And that seven of them have now recanted.
They lied, they say. They were scared, they were bullied and threatened, and they said what the police wanted to hear. Of the two witnesses who have not recanted, one is a man named Sylvester "Red" Coles; some witnesses claim he's the one who actually shot MacPhail when the officer tried to break up a parking lot altercation.
Davis' lawyers have likely explained to him the 1996 federal law, signed by President Clinton, which is throwing roadblocks in his way. Designed to streamline capital cases, it restricts the introduction of exculpatory evidence once the state appeals process is done. But how he could have presented evidence he didn't yet have. How can there be a time limit on truth - especially when a human life is at stake. How can you execute a man when there remain serious questions about his guilt?
It is not as uncommon as one might think.
According to the Death Penalty Information Center, in the past 25 years, 124 people on Death Row have been exonerated and released. The largest number were on Florida’s Death Row (22), with Illinois next (18). The same source notes the names and cases of a number of persons shown to be wrongfully executed. The number reflects that, after the defendant dies, there is little necessity to prove innocence --usually.
Of course, there is the case of a lady from Georgia. In 2005, the Georgia Board of Pardons and Paroles announced that it would issue a formal pardon for Lena Baker, the only woman executed in that state during the 20th century. The document, signed by all five of the current board members, stated that the parole board's 1945 decision to deny Baker clemency and allow her execution was "a grievous error”. Not much consolation to Lena!
There are a number of Innocence Projects associated with a number of law schools and other organizations. Most, but not all, of these projects have been able to exonerate 205 defendants, mostly through DNA evidence; 39 of these persons were awaiting execution. The project at the Cardozo School of Law in New York identified errors in false testimony, eyewitness testimony, prosecutable misconduct, and inadequate defense counsel, all of which established innocence after DNA evidence raised doubts.
The fear of executing an innocent person trumps all other reasons for keeping or eliminating the death penalty.
I will not discuss the religious or moral issues, the arguments for or against capital punishment often raised, or anything else. Just that we are all fallible, the justice system included. We are all capable of making mistakes. Execution is not reversible.
While I have serious doubts as to the efficacy of capital
punishment, there is a solid philosophical basis for its existence. There are, however, serious flaws in its operation and “execution”.(Sorry for the pun.)
Should this country continue to have a death penalty? Currently, a majority of Americans would probably answer "yes." The law reflects this position, and both the federal government and quite a few states provide for capital punishment in some cases. .
Interestingly, there is not much in the way of sustained public debate about the basic proposition that death is an acceptable penalty in a civilized nation. Those who favor the abolition of capital punishment typically do not engage the arguments of the majority; in turn, the majority ignores the arguments of the abolitionists.
As a start, this post will discuss the primary arguments raised in support of the death penalty and its serious flaw.
Is the Death Penalty Barbaric and Hypocritical?
Death penalty opponents often argue that the government behaves barbarically and hypocritically when it first condemns a person for deliberately killing another, and then deliberately kills the person as an expression of that condemnation. Upon closer examination, however, this claim loses much of its force.
The rule of law rests on the principle that private individuals surrender to the State their prerogative to use physical force and self-help to fight wrongful behavior. The urge for retribution is not inherently barbaric or unjust, but the law tells citizens that as a cost of being part of a society, they must resist it. In exchange, the State assumes responsibility for addressing harmful acts through the criminal law.
Most commonly, the State imprisons the perpetrator, taking his freedom away and forcing him to live in a custodial setting. If a private individual decided to substitute her own custodial setting for the State’s, however, his or her act would represent kidnapping or false imprisonment. The punishment for these crimes is itself imprisonment. Yet when a kidnapper is convicted and incarcerated, no one argues that it is barbaric or hypocritical for the State to hold him captive as a penalty for having held another captive.
In short, the State may punish criminals in ways that private individuals may not, through the use of physical force — whether it be imprisonment or infliction of the death penalty. That is because we believe that the State is usually in a better position than a private individual to determine whether it has the right person in custody (through the trial process) and if so, to issue a uniform and fair penalty. Sometimes it doesn’t work out that way.
Death Penalty as Deterrence
Death penalty supporters assert that the death penalty deters crime and criminals. Certainly, the death of a criminal will prevent him or her ever committing another crime. Statistics, however, are not consistent. States that eliminate the death penalty do not show any statistical increase in murder; conversely, states that re-instated the death penalty after the Furman decision show no statistical decrease.
The problem about executing some defendants.
This is the area in which most people have concerns. Yet this is the one area that is poorly addressed by our legal system!
The Eighth Amendment to the Constitution forbids “cruel and unusual punishment”. In a major consideration of excluding certain persons from the death penalty, Atkins v Virginia, (2002), the Supreme Court noted that that phrase must be interpreted in the light of current and evolving standards. The basic issue of capital punishment was still approved by many states and, therefore, not, per se, unusual.
Justice Paul Stevens wrote: “A claim that punishment is excessive is judged not by the standards that prevailed in 1685 when Lord Jeffreys presided over the "Bloody Assizes" or when the Bill of Rights was adopted, but rather by those that currently prevail.” Stevens then quoted from a 1958 decision. "The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. ... The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."
The Atkins case raised a very specific issue: would the execution of a mentally retarded defendant be barred by the Constitution? The Court looked at the federal death penalty statute and those of the various states. While a few states did not bar execution of the mentally retarded, most did either by law or by custom. Therefore, the ruling barred execution of the retarded; the details were left to the states to fashion.
The Supreme Court has also held in Roper v Simmons that it is unconstitutional to impose capital punishment for crimes committed by a juvenile. Again the Court searched for a national consensus. In support of the "national consensus" position, the Court noted the increasing infrequency with which states were applying capital punishment for juvenile offenders. At the time of the decision, in 2005, 20 states had the juvenile death penalty on the books, but only six states had executed prisoners for crimes committed as juveniles since 1989. Only three states had done so in the past 10 years: Oklahoma, Texas, and Virginia. Furthermore, five of the states that allowed the juvenile death penalty at the time of an earlier 1989 case had since abolished it.
Related to these cases are the decisions of Ford v Wainwright (1986) and the U.S. Court of Appeals case of Singleton v Norris (2003).
In the first case, the Supreme Court held that executing a person who is incapable of comprehending what is happening to him or why violates the Eighth Amendment's prohibition against cruel and unusual punishments. There are all sorts of rationales for this holding. In the latter case, court there approved the forcible medication of death row inmates who would otherwise be incompetent - that is, too mentally impaired - to be executed.
In justifying its decision, the court explained that it had balanced the government's interest in carrying out a scheduled execution, against the inmate's right not to endure forcible medical treatment. In that balancing, the court said, the state's interest had prevailed. (The issue of forcing medication on someone is most interesting and will likely be the topic of a future post.)
OK, so there are limits on execution for juveniles and the retarded and even the mentally incompetent. Notice one group is conspicuously absent: the convicted defendant who has discovered absolute evidence or absolute proof of innocence. And this is one of the real reasons that many oppose the death penalty.
The person awaiting execution who is innocent and can prove it.
The story of Troy Anthony Davis is illustrative. Davis was scheduled to be executed last week; he has now received a 90-day stay of execution and he has an appeal pending in the Georgia Supreme Court asking for a new trial. I have no idea if he is an innocent person. I do know that he was convicted of the 1989 killing of a police officer, Mark Allen MacPhail, in Savannah, Ga. And I know that he was on the scene, a Burger King parking lot, on that night.
Davis has always maintained his innocence. And that no physical evidence - no gun, no fingerprint, no DNA - ever tied him to the crime. He was convicted on the testimony of nine key witnesses. And that seven of them have now recanted.
They lied, they say. They were scared, they were bullied and threatened, and they said what the police wanted to hear. Of the two witnesses who have not recanted, one is a man named Sylvester "Red" Coles; some witnesses claim he's the one who actually shot MacPhail when the officer tried to break up a parking lot altercation.
Davis' lawyers have likely explained to him the 1996 federal law, signed by President Clinton, which is throwing roadblocks in his way. Designed to streamline capital cases, it restricts the introduction of exculpatory evidence once the state appeals process is done. But how he could have presented evidence he didn't yet have. How can there be a time limit on truth - especially when a human life is at stake. How can you execute a man when there remain serious questions about his guilt?
It is not as uncommon as one might think.
According to the Death Penalty Information Center, in the past 25 years, 124 people on Death Row have been exonerated and released. The largest number were on Florida’s Death Row (22), with Illinois next (18). The same source notes the names and cases of a number of persons shown to be wrongfully executed. The number reflects that, after the defendant dies, there is little necessity to prove innocence --usually.
Of course, there is the case of a lady from Georgia. In 2005, the Georgia Board of Pardons and Paroles announced that it would issue a formal pardon for Lena Baker, the only woman executed in that state during the 20th century. The document, signed by all five of the current board members, stated that the parole board's 1945 decision to deny Baker clemency and allow her execution was "a grievous error”. Not much consolation to Lena!
There are a number of Innocence Projects associated with a number of law schools and other organizations. Most, but not all, of these projects have been able to exonerate 205 defendants, mostly through DNA evidence; 39 of these persons were awaiting execution. The project at the Cardozo School of Law in New York identified errors in false testimony, eyewitness testimony, prosecutable misconduct, and inadequate defense counsel, all of which established innocence after DNA evidence raised doubts.
The fear of executing an innocent person trumps all other reasons for keeping or eliminating the death penalty.
I will not discuss the religious or moral issues, the arguments for or against capital punishment often raised, or anything else. Just that we are all fallible, the justice system included. We are all capable of making mistakes. Execution is not reversible.
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Comment by youranter
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Comment by katyzzz
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20-30 year appeals are ridiculous.
If we could guarantee certain individuals would never be set free I'd feel more comfortable.
But, like it or not, I have no qualms in seeing some people executed. I don't think it necessary to enter into a long discussion on that one.
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Comment by Damo
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Comment by Jim Stillman
Comment by Jim Stillman
Your comment's' sarcasm seems a bit over the edge. If you would, please send me a private message pointing out any lapses in propriety. I would immediately publically apologize if that were called for.
In the meantime, how do you feel about issues that I raised?
Comment by S.L. Bradish
I guess you could say I have a vested interest in the death penalty, Jim. My oldest daughter was murdered a week after her 15th birthday. There is talk now that her killer might get off Death Row because one of his rights might have been violated during his arrest. There is no question whatsoever about his guilt. It'll be 21 years next month since she died and he was arrested, tried and convicted the following year. Youranter is right. 20 or 30 years is ridiculous! The victims of these monsters didn't get an extra minute to live. Maybe we should make the punishment fit the crime? (If you kill someone with a gun, die by one. A rapist/murderer could be raped and killed... I rather like the idea.)
Now that we have DNA evidence, many innocent people have been freed and many more guilty ones have been caught. I think that's wonderful! Punishment and retribution are due the guilty, not the innocent.
Comment by youranter
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I intend to blog on this in the future and I'm sure I'll hear from you Jim. In fact, I look forward to it. But don't you see how far we are bending backwards to mollycoddle the perpetrator and ignore the victim?
Comment by S.L. Bradish
Comment by Jim Stillman
I am more bothered by the execution of an innocent person than most other matters.
SL. why is a prisoner allowed to marry in prison? The issue of conjugal visits is much debated. How can correction officers permit improper behavior? Simple, they are lazy or incompetent or both.
Comment by youranter
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Truscott recently was granted a reprieve for the crime he was accussed of. Good for him. But had he been hanged, how important would he be today? Here's a couple of bucks, now go and bother someone else. His reparations will cost us plenty. Taxpayer dollars that otherwise would not have been spent.
Closer to home, look at how long it took to get Dr. Mudd's name cleared. And what did the family get out of it?
Is it better to let a thousand guilty men free in case you execute one innocent man? I'll go with killing the innocent man. It's cheaper by far.
Comment by S.L. Bradish
Yes, Jim, there is anecdotal evidence for every situation. That's what proves or disproves the value of laws. Is it not?