A Response to the Language Guy, on the Death Penalty

The Language Guy recently wrote this post on the death penalty. You don't have to read it to understand my response, since I quote it in most relevant respects. A litle background: to impose the death penalty, the state must prove that there are certain "aggravating factors" beyond the fact that the defendant committed first degree murder. The defendant can raise "mitigating factors" to convince the sentencer that the death penalty should not be imposed. Here is my response:

It should be noted that the state must clearly define and enact, as a statute, anything that can be considered an aggravating factor. Many of these are quite contentious issues, but that's a discussion for another day. In contrast, a defendant can raise any factor (as LG hints) as a mitigating factor.

LG said: "The Supremes sided with the state of Kansas in allowing the state to stipulate that if the mitigating factors do not outweigh the aggravating circumstances, then the death penalty is the appropriate jury choice."

This is true, but do you really think it makes a difference? Honestly. Do you think that jurors can really empirically weigh each of these factors and believe that they come out on balance? And that they would then grudgingly impose a different penalty from what they feel is right? No. Juries will do what they think is right. If they think the bastard deserves to die, they will kill him (I use the word "bastard" because that's the kind of language you would use in referring to a person who does deserve the death penalty). If they think he's the kind of guy that deserves a break, they won't kill him. It's as simple as that.

LG said: "So, robbing a liquor store while brandishing a weapon cannot result in your being put to death but killing the clerk while robbing the store can."

This is also true. It is also true that if the clerk shoots an innocent bystander and kills them in the process of this, then you can also be put to death. It should be noted that under the merger doctrine, you can't be found guilty of felony-murder when the felony in question is assault. (It's unfortunate but unrelated that in the law there are many different, wholly unrelated doctrines called the "merger doctrine".)

LG said: "What is interesting in this particular case is that the Supremes affirm that the burden of proof can be placed on the defendant rather than the state."

This is not what is happening, LG. The state still has to prove the aggravating circumstances. They still have to prove them beyond a reasonable doubt. On the other hand, the defendant need only prove his mitigating factors by a preponderance of the evidence (more likely than not).

LG said: "I ask you which is more important in the grand scheme of things -- whether or not someone is guilty of felony murder or whether or not someone should be put to death for felony murder? Reasonable people could, I suppose, disagree as to the answer to this question."

And reasonable people, as I believe we both are, do in fact disagree, it would seem. This is related to the above issue as well, because actual guilt is not at issue in this stage.

Also related to these issues is that it wasn't all that long ago that all first-degree murder was punished by an automatic death penalty. It is spurious judicial reasoning that has led us to this ridiculous aggravating/mitigating scheme. While it may provide fairness in the individual circumstance, it does lead to unequal treatment. Which ties in with the next issue.

LG said: "Pretrial publicity, racial and ethnic and religious biases, gender biases, and social class and other biases may very well play a role in any given juror's thinking. Asking prospective jurors whether they can render an unbiased verdict is one of the silly exercises the justice system goes through. . . . Do these people really think that prospective jurors are going to always tell them the truth?"

Ah, but these are unavoidable necessities of having a jury system, or perhaps indeed any criminal justice system. And to your question, I think you'd be surprised. Employers put a lot of stock into character tests which asks questions like "Would you ever steal from your employer if you knew you wouldn't get caught?" Many people answer honestly and incriminatingly to such questions.

LG said: "The Kansas statute in contrast to the presumption of innocence demanded of what is called the "guilt phase" of a death penalty case, allows a presumption of guilty . . . ."

See my above comment on the real burden of proof. As far as biasing the jury in favor of imposing the death penalty, I don't see why this is a problem even if it is true. People meeting this phase have already been found guilty, beyond a reasonable doubt by a jury of twelve people, of committing a heinous crime--the ultimate crime of first degree murder. It has to be pretty bad before the prosecutor can prove such a thing, and in many (if not most) cases they will have had the option prior to this of pleading guilty to second degree murder or manslaughter.

The source you then quote shares some of your misperceptions, and I note that it is a biased source affiliate with Amnesty International. As to number 5, I wonder again whether this is such a bad thing.

LG said: "Given how often it has been determined that persons given the death penalty have been proved innocent of the underlying crime, one would think a fair society would bend over backwards in an effort to minimize imposition of the death penalty."

I don't think the penalty phase is the problem. Something is going horribly wrong in the guilt phase, and that is what needs the real attention, not the penalty phase.

As to the ability to have a hung jury in the penalty phase, I have no opinion and no particular knowledge to add any light to the discussion. Maybe it would be good to allow them to hang. Maybe not.

LG said: "Another problem is the absurdity of 'weighing' aggravators versus mitigators."

I have already noted such absurdity and the results of which above, that is, that jurors will follow their gut. This is not the only place where such a gut instinct can be determinative. It goes from everything from deciding the veracity of a witness to determining relative fault in car collision cases in which both parties did something wrong. It's the only way to make a decision, and a decision must be made. We know in our guts that such decisions can be right or wrong, although we can't put it into words.

As to the proof that many innocent people were sent to death, I have already made my points, but I wish to add that I wonder how many people are being properly put to death in comparison. I know that a system with perfect results is something we should strive for, but it is impossible and we need some kind of system for making these decisions. If you have a better one, then I'm sure you'll get the Nobel Peace Prize.

"The first is that District Attorneys are elected. The second is that Judges are elected."

While I agree that judges should not be elected for these kinds of reasons, I disagree on the district attorneys. The things they do are the very kinds of things that the concept of democracy demands the people have input into, suh as decisions whether to be tough on certain types of offenders and whether and to what extent to prosecute various unique individuals who have very different circumstances. These kinds of decisions should be left to elected, accountable people.

As to the standard of "beyond a reasonable doubt" itself, your suggested standard is one often given to explain what that standard means. At least, that is the case in Nebraska. In other words, your suggestion restates the standard and does not change it.

Capital Punishment: Implementation

Last week I discussed the moral issues involving the death penalty. Now, I will move on to the application of the death penalty.

Some major goals of the criminal justice system are
1. Rehabilitation
2. Removing dangerous persons from society
3. Retribution
4. Maintaining respect for and enforcing the law (this includes but is not limited to deterrence)
Mr. K has suggested that he doesn’t believe in free will. If you don’t, then the retribution goal doesn’t make much sense, but I think overall my scheme will still make sense (except for execution for particularly heinous crimes).

The major problems with the death penalty that I have identified (with your help) are
1. The possibility that we are wrong
2. That life in prison is just as good as far as removing dangerous persons from society
3. It does not meet the rehabilitation goal of the law
4. It’s randomly and prejudicially applied

The random application problem cannot be addressed unless SCOTUS changes its position (that mercy must always be allowed to be applied on an individual basis) so that it applies automatically in certain situations. Justice Scalia has expressed support for this position, so time will tell whether we ever get there. The interesting thing is that mercy is applied today simply as reverse prejudice. Once we get over this hump, we can move on.

Capital punishment should only apply when
1. One of the following is met:
a. The crime is particularly deserving of retribution
b. The crime directly undermines the criminal justice or penal system
2. AND there is a very low chance for executing the wrong person

Is this a good summary? Of course, the issue remains that some people would be against the death penalty in all cases, or if there is any chance for executing the wrong person. Speak up if that’s the case. But if you apply it automatically under certain extraordinary circumstances, then it better meets the retribution rationale. Also, if it remains an extraordinary punishment, and is applied automatically, then it will better serve the deterrence rationale.

How do we reduce the chance for error?

One thought that I had is that it would require an overwhelming evidence standard. This would be met by any number of factors, such as multiple murders (a pattern reduces the chance for error), little or no exculpatory evidence, video evidence, the culprit was captured immediately after committing the crime with no chance for mistaken identity, a large number of eye witnesses, or DNA evidence with no reasonable alternative explanation. Some of these could possibly stand alone, while others would need to be in combination.

The good thing, though, is that this standard is likely to be met in most situations when the death penalty should apply.

What crimes meet the other criteria?

Of course, to some extent all crimes undermine the legal system, but not all of them directly undermine the criminal justice system or the penal system. An obvious answer is that capital punishment should apply when someone commits murder while in prison. When someone has done this, they are interfering with the penal system—in fact, they are interfering with the right of others to rehabilitation and they have exhibited an abandonment of their own right to rehabilitation. I do have some concern for abuse in this category (it would be easy to frame someone for murder in prison) but the overwhelming evidence requirement should rectify this.

Other crimes that undermine all the goals of the criminal justice system are also especially deserving of extreme punishment. The criminal justice system deserves special protection from crime so it can more adequately perform its duties and to increase respect for the workings of the system. Crimes that fit this criteria include murders of people involved in investigations, law enforcement, criminal trials, or grand jury proceedings, including
1. Judges
2. Prosecutors (or possibly even a defense attorney in some circumstances)
3. Witnesses
4. Jurors
5. Investigators
6. Police officers
7. Others?

Finally, crimes that are extraordinarily heinous are more deserving of retribution. This is a category of aggravating circumstance that has received much abuse because it is very subjective. So we should restrict it and better define it. I would suggest allowing it only when the perpetrator has killed on more than one occasion (killing several people at once is less cold-blooded than killing, thinking about it, and killing again) and killing after torture (which should be narrowly defined). I actually can’t think of any other circumstances that should meet this criteria. This criterion, however, meets only the retribution rationale and does not better promote any other goals, and so it is probably the least useful instance for implementing the death penalty.

What am I missing here? Is this system morally acceptable? Is it practically possible? Does it still fail to do something significantly better than life imprisonment? Let me know what you think about my alternative capital punishment scheme.