Friday, February 24, 2006

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.


  1. I have carefully read your comments re the practicality of the death penalty and the relevant moral issues.

    I base my opposition to the death penalty on primarily three things: (1) that the standard of decency has evolved and we are more civilized now (plus it is immoral to take the life of someone); (2) the death penalty violates the equal protection clause of the Fourteenth Amendment (I would also argue that it violates substantive due process clause of the Fourteenth Amendment); and (3) there will always be a chance, regardless of the burden of proof, that innocent people will be killed.

    In regards to my first point: you should read the South African Supreme Court's decision in State v. Makwanyane. For the second point, follow the progeny of McCleskey v. Kemp, 481 U.S. 279 (1987). As per the third one, you propose a higher standard of proof than beyond a reasonable doubt. Do you really think that the jurors know the difference between your standard, beyond a reasonable doubt, or clear and convincing evidence. Many studies have found that they don't.

  2. The std you are proposing, the only one above the reasonable doubt std, would be beyond any doubt. A daunting std, but achievable in a few cases.

    My only other comment would be that I am uncomfortable drawing a line for capital punishment on the basis of status of the victim. Would the person have to intend to kill a judge, or would it apply if they intended to kill the person and later discovered s/he was judge?

    Could anyone reasonably say that the family of a police officer suffers more or loses more than the family of wage-earner in another vocation? You kind of open up another can of worms, and that can of worms involves its own set of value laden ambiguities, if you see what I mean.

    Intentional killing is intentional killing from my perspective. If you're going to put down intentional killers, there seems to be an important sense in which it is unfair to favor some intentional killers over others, even it is done in a principled manner.

  3. M.U.F.: Thanks for reading it all. I appreciate it, I really do, and thanks for commenting.
    (1) I assume this is an 8th Amendment argument. I simply don't buy that, but it is a reasonable position. I guess on these lines you could consider me to be in the Scalia school.
    (2) I assume you mean that it violates it because of racism (I will look at the case later, but it sounds familiar and I probably read it in Crim Law). But if you apply it automatically with no options for discretion, then it can't be applied racistly.
    (3) There is a chance, yes, and so I would suppose that you are one that would never under any circumstances apply it if you could be wrong. This is also a reasonable position, but I'm going to borrow a bit from Frank Herbert's book Dune Messiah here in a (likely) vain attempt to sway someone: he wrote in that book that wasting someone's time (like incarceration) is the same thing as killing them. It's simply a matter of degree.

    Both of you:
    I don't think jurors will know the difference when you put it so vaguely, but as I suggest there will be certain kinds of evidence that meet this standard, and the combinations would be laid out after careful study. Of course, video evidence pretty much does erase any doubt, absent an identical twin or some bizarre cloning argument. If you have fingerprints and video, I don't see how there could be any doubt.

    I should have been more specific, knowing that you would be reading this and you are a lawyer. I'm actually not drawing it on the lines of the status of the victim, but rather on the intent of the perpetrator. The intent being a desire to interfere with law enforcement or the criminal justice system itself. So if you find a cop in bed with your wife and kill him, it doesn't meet this standard. If you instead kill a uniformed officer then you likely meet this standard, as you would if you killed him because he had arrested you or a friend. The reason for this is to use it as an added deterrent for interfering with the criminal law system.
    I realize of course that the mens rea element is not susceptible of the same level of proof as the actus reus, but I think that's acceptable.
    Does this address your concerns and alleviate the problem referred to in your last statement?

  4. Sorry, I didn't make it clear that the overwhelming evidence standard could only be met in certain, stated situations, and wouldn't even be a question for the jurors, but rather in sentencing. Jurors would have no role in deciding whether capital punishment should apply because there's a chance that they could apply it racistly (is that a word?).

    And I guess I have one more thing to add to your last statement TG. If treating some intentional killers different from others is wrong, in your mind, then you have erased the distinction between 1st and 2nd degree murders in Nebraska (which has an odd definition of malice) and you have also destroyed the Supreme Court's requirement of aggravating factors. Not that this is an invalid thing to do, but I was just hoping you would note this.

  5. Good points. Yes, I see what you mean about the 1st degree, 2nd degree offenses, etc, but then, I've always thought that we nitpick definitions of offenses far too much. I do feel that intentional killing is intentional killing. I'm also a bit of a nut for consistency in the law (and yes, I know "consistency for its own sake is the hobgobblin of small minds" and all that). That said, I'm not sure why people are so quick to presume that because one is premeditated and one is in the "heat of the moment" that there is some kind of objectively reduced culpability associated with it. The victim is dead, and wrongfully so. I see it as more of a threshold than a continuum.

    Hey, but that's just me.

    Also, msg received on the "interfere w/law enforcement" std. Maybe it could work. I do feel that as a practical matter, proving intent would be much more difficult than meets the eye, particularly because you would be up against organized defenses that would evolve purely for the purpose of negating that element. We as attys would "get it" so to speak, but juries probably wouldn't. Hard to say for sure, though.

  6. I could accept the elimination of capital punishment if a few other conditions were to change:

    1) Prison should only be for felons who are physically threatening to the public. Wasting jail space on Leona Helmsley and Martha Stewart is the province of morons. Non-violent felons should wear a GPS bracelet, enjoy very restricted freedom of movement (well away from their victims), work all day, and pay taxes like the rest of us slobs. This would greatly reduce the cost of incarceration. No one keeps a shotgun under their bed for pot growers and ENRON executives.

    2) Felons (homicidal or otherwise) who are violent or express any desire to be feared by others should live in a small cell with a bed, a sink, a toilet, a shower, and a small desk and chair. They don't get out, ever. If they want to throw feces around, let them. Only a stupid bird fouls its own nest. Further, each cell should be lit 24 hours per day and should have a webcam and a unique internet address so that the public, and especially victims can see in real time that violent criminals are actually being punished. Too many victims have been informed of a criminal's early release when he shows up at their door.

    What do you think of this?

  7. Well, aside from the webcam part it seems to be a pretty reasonable scheme.