As I have mentioned before, I am a death penalty agnostic. But one thing the irks me about certain death penalty opponents is that they think that not just has an innocent been put to death, but only innocents have been put to death (leastways if they are a minority). Marlin Gray was executed for the rape and death of two sisters, and there are some people who are convinced he was innocent. I don’t know for sure since I wasn’t there, but the evidence is pretty clear and convincing. Even Bill McClellan, who’s a soft touch for a sob story, sits through all the trials and says the mystery isn’t who but why. This reflexive defense of anyone sentenced to death is as annoying than the other extreme – no innocent person has ever been put to death.
Posts Tagged death penalty
What Njal Said
Apr 1
Donald Sensing takes up Tom Bevan’s Op Ed that asks, among other things:
If one is convinced of the moral strength of the argument for saving Terri Schiavo (which millions upon millions of Americans are), and if one further adheres to the proposition that every innocent life is worth protecting and that we as a society must not countenance a system that results in the death of a single innocent soul, are we not then obligated to reconsider support of the death penalty under all circumstances except those in which confessions have been given voluntarily?
I’m a death penalty agnostic, but I don’t buy this argument as a reason not to have a death penalty. Here’s where it falls apart: “a society must not countenance a system that results in the death of a single innocent soul”. Very few systems any human society sets up can make this claim, and certainly none that involves dealing death itself. It simply is an impossible standard, and to set it up foolishness. Set up a system that takes the fewest innocent lives is workable, but any is impossible.
And when I say any system, I pretty much mean any system. Our transportation system kills the innocents at an absolutely ferocious rate – 40,000 in cars and trucks a year in the US alone. Airplanes and trains are killers too. Horsedrawn vehicles, heck horses themselves were killers before mechanical transportation means came into effect. Energy – between coal miners killed, gas explosions, deaths at refineries etc. it too is a killer. Or how about something as mundane as keeping clean – people are killed in showers and tubs every year. And don’t get me started on how many buckets kill kids every year. You might argue that since the purpose of these systems isn’t to kill people, we should be more forgiving of such outcomes, but isn’t that exactly backward?
Now go back to criminal justice, and you’ll find that there are far more innocents locked up than executed. Why nobody worries about that is beyond me; why a life time wrongfully in prison being raped is nothing to care about yet wrongful execution, whoa, can’t have that is beyond me.
The real standard is to minimize the undesirable effects, and death of the innocent is hugely undesirable. It’s something that should and can always be worked on, but there is no absolute possible. We often say that our justice system is designed to let 10 criminals go free rather than wrongly convict 1 innocent person; yet we don’t say we let every criminal go free rather than wrongly convict any innocent person — because it not only sounds absurd, it is absurd. And yet that’s the standard that is raised here.
After winding his way through other knotty problems (it should be remembered that the original knotty problem was solved by one of the original applications of thinking outside the box: the application of a sword to cut instead of fingers to untie) he formulates his larger question:
At its core, the dilemma is this: At what point are we forced to live within the law even if we disagree morally with some of the outcomes resulting from its application?
Now we have a good question. I don’t know that I’d call it a dilemma as that implies a single decision whereas I think this kind of issue is neither a single decision nor a decision alone. As I said before, any system implemented by man is going to have problems, so I take it as a given that I will morally disagree with some of the outcomes of our legal system. And here my options aren’t to only live within or without the law, but to try and change the outcomes and the very law itself. I would argue that it is my moral obligation to try and change outcomes and the law itself in those cases where I think the outcomes are wrong.
Frankly, I think a better question would be phrased:
At what point am I forced to live outside the law because I disagree morally with some of the outcomes resulting from its application.
In other words, at what point does my working within the law, because that should be my default position, become itself wrong? I think the answer my friend varies from person to person. The Declaration of Independence is one attempt to answer that question; I have to be thankful to our forefathers to bequeath a system of government where I don’t have to rebel to effect changes in our laws.
Usurpers and Destroyers
Mar 2
I’m a death penalty agnostic; I still struggle with the issue. If I were in a voting booth with the stark choice before me: Abolish the death penalty, yes or no, I don’t know how I’d vote (as I’ve written before). Oddly enough, the case that gives me pause, the case where I say to myself, “if anybody deserves the death penalty, it’s this guy” — that’s the case that first the Missouri Supreme Court reduced the penalty from death and now the U.S. Supreme Court upheld that reduction in penalty. And I’m really unhappy with both courts — not about what they ruled but how and why. I’m not alone in that — if you think judicial decisions are all dry and windy dissertations without feeling, Justice Scalia’s dissent will disabuse you of that notion rather quickly.
I’m unhappy because of the MSC decision in the first place because it ran directly counter to the precedent of the USSC. In the words of Justice Scalia:
To add insult to injury, the Court affirms the Missouri Supreme Court without even admonishing that court for its flagrant disregard of our precedent in Stanford. Until today, we have always held that “it is this Court’s prerogative alone to overrule one of its precedents.” State Oil Co. v. Khan, 522 U. S. 3, 20 (1997). That has been true even where ” ‘changes in judicial doctrine’ ha[ve] significantly undermined” our prior holding, United States v. Hatter, 532 U. S. 557, 567 (2001) (quoting Hatter v. United States, 64 F. 3d 647, 650 (CA Fed. 1995)), and even where our prior holding “appears to rest on reasons rejected in some other line of decisions,” Rodriguez de Quijas v. Shearson/
American Express, Inc., 490 U. S. 477, 484 (1989). Today, however, the Court silently approves a state-court decision that blatantly rejected controlling precedent.One must admit that the Missouri Supreme Court’s action, and this Court’s indulgent reaction, are, in a way, understandable. In a system based upon constitutional and statutory text democratically adopted, the concept of “law” ordinarily signifies that particular words have a fixed meaning. Such law does not change, and this Court’s pronouncement of it therefore remains authoritative until (confessing our prior error) we overrule. The Court has purported to make of the Eighth Amendment, however, a mirror of the passing and changing sentiment of American society regarding penology. The lower courts can look into that mirror as well as we can; and what we saw 15 years ago bears no necessary relationship to what they see today. Since they are not looking at the same text, but at a different scene, why should our earlier decision control their judgment?
However sound philosophically, this is no way to run a legal system. We must disregard the new reality that, to the extent our Eighth Amendment decisions constitute something more than a show of hands on the current Justices’ current personal views about penology, they purport to be nothing more than a snapshot of American public opinion at a particular point in time (with the timeframes now shortened to a mere 15 years). We must treat these decisions just as though they represented real law, real prescriptions democratically adopted by the American people, as conclusively (rather than sequentially) construed by this Court. Allowing lower courts to reinterpret the Eighth Amendment whenever they decide enough time has passed for a new snapshot leaves this Court’s decisions without any force–especially since the “evolution” of our Eighth Amendment is no longer determined by objective criteria. To allow lower courts to behave as we do, “updating” the Eighth Amendment as needed, destroys stability and makes our case law an unreliable basis for the designing of laws by citizens and their representatives, and for action by public officials. The result will be to crown arbitrariness with chaos.
I think the good justice nails that one, but he only considers the effect on judges. How about police and prosecutors, who all too often “interpret” laws to their own advantage. Why should they be left out? The MSC destroyed the stability and respect for the law in an attempt to achieve an outcome that a majority of the Court want but not a majority of the citizens of the state of Missouri – an end to the death penalty.
Supporters of the decision keep saying “The US has joined the rest of the world”. Screw that. My ancestors didn’t come here because the US is like the rest of the world. I don’t keep living here because of the weather; I stay here because we aren’t like the rest of the world. Why do non-Americans get a “vote” on how we live here? If I wanted the unelected to issue decrees, I could go live in Europe or Zimbabwe. Why this pean to peer pressure? When did conformity become a good thing? What happen to the bravery and importance of dissent? I don’t want the United States Supreme Court looking at laws in Europe, ignoring the consensus of the European people which is different, and saying that some mythical foreign consensus should be imposed upon the American people.
But what about this consensus that executing killers under 18 is cruel and unusual punishment? Isn’t that why we have elections and legislators and initiatives? What better way for an emerging consensus to emerge? It certainly beats some jackanape in a robe from taking the temperature of the American people by sticking a thermometer up his own ass, which is what just happened.
In urging approval of a constitution that gave life-tenured judges the power to nullify laws enacted by the people’s representatives, Alexander Hamilton assured the citizens of New York that there was little risk in this, since “[t]he judiciary … ha[s] neither FORCE nor WILL but merely judgment.” The Federalist No. 78, p. 465 (C. Rossiter ed. 1961). But Hamilton had in mind a traditional judiciary, “bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them.” Id., at 471. Bound down, indeed. What a mockery today’s opinion makes of Hamilton’s expectation, announcing the Court’s conclusion that the meaning of our Constitution has changed over the past 15 years–not, mind you, that this Court’s decision 15 years ago was wrong, but that the Constitution has changed. The Court reaches this implausible result by purporting to advert, not to the original meaning of the Eighth Amendment, but to “the evolving standards of decency,” ante, at 6 (internal quotation marks omitted), of our national society. It then finds, on the flimsiest of grounds, that a national consensus which could not be perceived in our people’s laws barely 15 years ago now solidly exists. Worse still, the Court says in so many words that what our people’s laws say about the issue does not, in the last analysis, matter: “[I]n the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.” Ante, at 9 (internal quotation marks omitted). The Court thus proclaims itself sole arbiter of our Nation’s moral standards–and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures. Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent.
And as for the idea that there should be a bright line based strictly on age, well, again I’ll let Justice Scalia do the talking:
Indeed, this appears to be just such a case. Christopher Simmons’ murder of Shirley Crook was premeditated, wanton, and cruel in the extreme. Well before he committed this crime, Simmons declared that he wanted to kill someone. On several occasions, he discussed with two friends (ages 15 and 16) his plan to burglarize a house and to murder the victim by tying the victim up and pushing him from a bridge. Simmons said they could ” ‘get away with it’ ” because they were minors. Brief for Petitioners 3. In accord with this plan, Simmons and his 15-year-old accomplice broke into Mrs. Crook’s home in the middle of the night, forced her from her bed, bound her, and drove her to a state park. There, they walked her to a railroad trestle spanning a river, “hog-tied” her with electrical cable, bound her face completely with duct tape, and pushed her, still alive, from the trestle. She drowned in the water below. Id., at 4. One can scarcely imagine the terror that this woman must have suffered throughout the ordeal leading to her death. Whatever can be said about the comparative moral culpability of 17-year-olds as a general matter, Simmons’ actions unquestionably reflect ” ‘a consciousness materially more “depraved” than that of’ … the average murderer.” See Atkins, 536 U. S., at 319 (quoting Godfrey v. Georgia, 446 U. S. 420, 433 (1980)). And Simmons’ prediction that he could murder with impunity because he had not yet turned 18–though inaccurate–suggests that he did take into account the perceived risk of punishment in deciding whether to commit the crime. Based on this evidence, the sentencing jury certainly had reasonable grounds for concluding that, despite Simmons’ youth, he “ha[d] sufficient psychological maturity” when he committed this horrific murder, and “at the same time demonstrate[d] sufficient depravity, to merit a sentence of death.” See ante, at 18.
…
In the instant case, by contrast, the moral proportionality arguments against the juvenile death penalty fail to support the rule the Court adopts today. There is no question that “the chronological age of a minor is itself a relevant mitigating factor of great weight,” Eddings, 455 U. S., at 116, and that sentencing juries must be given an opportunity carefully to consider a defendant’s age and maturity in deciding whether to assess the death penalty. But the mitigating characteristics associated with youth do not justify an absolute age limit. A legislature can reasonably conclude, as many have, that some 17-year-old murderers are mature enough to deserve the death penalty in an appropriate case. And nothing in the record before us suggests that sentencing juries are so unable accurately to assess a 17-year-old defendant’s maturity, or so incapable of giving proper weight to youth as a mitigating factor, that the Eighth Amendment requires the bright-line rule imposed today. In the end, the Court’s flawed proportionality argument simply cannot bear the weight the Court would place upon it.
The details are why ever since I heard them I’ve always thought that if anybody deserved death for his crimes, it was Christopher Simmons. And it’s those details that should matter, not age.
On a side note, the state park Shirley Crook was murdered in was Castlewood — the park my cub scout pack has camped in, and I posted pictures of just below. That beautiful shot from the bluffs – around the river bend on the left is the railroad trestle Simmons shoved her off of to her death.
I agree pretty much with everything Dale at QandO had to say about this decision, especially his final words: “It was never the Framers’ intention that the court become a judicial oligarchy with the power to legislate from the bench. The clear intent of the Framers was to provide a government where the will of the people prevailed. That is why we have a government with congressional supremacy. Congress wields substantial power over both the executive and legislative branches for precisely that reason.
Clearly, it’s time for congress to begin exercising their prerogative to bring the Supreme Court under control.
llinois Governor George Ryan commuted every death sentence to life without parole. I happened to catch part of his speech announcing his decision. He found that the process in Illinois was fundamentally flawed – it applied the death penalty capriciously, it convicted the innocent, and it was biased against minorities and the poor. I could understand his reasons except for one – he cited the fact that some blacks were judged, “not by their peers, but by all white juries.” Excuse me, but I find that remark offensive and racist. It simply assumes that white people are biased against blacks, and it explicitly states that blacks and whites are not peers – we aren’t equal.
My first reaction was that Governor Ryan had abdicated his responsibilities as Governor by issuing a blanket commutation. While some of the people on death row might not be guilty or deserving, certainly not all were. To exercise his responsibility properly, shouldn’t he have reviewed the cases and made a case by case decision? But wouldn’t doing that be replacing the jury’s judgement with his own? Wouldn’t that be in effect saying that his judgement was superior to the jury’s? I many of the cases, there is no doubt about the guilt of the defendant. The Post Dispatch ran synopsizes of the affected cases from the Metro East, and they were all clearly guilty, and guilty of heinous crimes. But in other cases, there would doubt. And people could draw different conclusions, and perhaps to do justice in those cases life imprisonment or even release would be more appropriate. And if the system itself truly was fundamentally flawed, then how could you accept any of the applications of the penalty? You would be facing the choice of doing nothing, substituting your judgement for the jury’s, or invalidating the death penalty system as a whole.
The next question is what comes next? Shouldn’t he have made every effort during his term to fix the problems with the justice system in Illinois – frankly, if the death penalty process is as broken as he claims, I can’t believe the rest of the system is just fine. If confessions are being coerced, then there aren’t being coerced just in death penalty cases. If the application is of the death penalty is biased, capricious, and punishing the innocent with the guilty, I simply can’t believe that these problems affect only death penalty cases – the entire justice system must be shot through with them. Well, Governor Ryan has tried to fix the death penalty (along with other reforms), but his efforts haven’t gone anywhere in the legislature. And the incoming Governor Rod Blagojevich doesn’t seem inclined to do anything either. So what we are left with is a dramatic gesture and more polarization; and rather than needed reform, we’ll have a more angry status quo.
The Death Penalty
Jan 9
USA Today has an article about the death penalty. I think it does a pretty good job of covering the subject. Some of the main objections to the death penalty are: sometimes the innocent die, it’s unfair to minorities, it doesn’t deter crime, and (unmentioned in the article) is it’s immoral.
Guess what – any system designed and executed by man is not going to be perfect. You cannot reject the good because it’s not perfect. If we stop the death penalty because it’s not perfect, why not end life imprisonment – surely there are those who are wrongly imprisoned. Ah, but we can correct lesser sanctions, although I doubt the resources will be devoted to investigating the merely incorrectly incarcerated that are devoted to investigated those slated to die. But we really can’t correct the lesser sanctions – we can’t give someone back 20 years of life spent behind bars. You can let them out, but you can’t return to the status quo ante. Frankly, if you stand on this principle, the entire edifice of government comes crashing down because nothing it does is perfect.
If the death penalty is being applied unfairly, isn’t the remedy to apply it fairly, not scrap it altogether? Is there something intrinsic to the death penalty that means it will be applied unfairly, but simple imprisonment won’t? Nope. The stand here seems to be it’s not okay to unfairly kill someone, but it’s fine to lock them up until they die unfairly.
Does it deter crime? Some view murder as a crime of passion or insanity, and so obviously it won’t deter crime. But what about pre-meditated murders? Certainly having some penalty deters crime; the question is does the death penalty deter murder more than life in prison. And frankly, I find the newer studies where going back to the death penalty lowered murder rates more persuasive than the older ones that compared states with and without the death penalty. But as Robert Blecker points out, don’t certain crimes simply demand the death penalty, whether it deters or not?
And that brings us to the moral aspect. One strand of thought is that the state morally is the same as an individual. You won’t hear this pronounced as such, but it usually takes the form that if it’s wrong for me to kill someone, it’s wrong for the state. The problem with that view is that it’s wrong for me to lock someone up in my basement until they die of old age, but these same people don’t question the morality of imprisonment of prisoners, since the alternative offered to death is usually a life sentence without parole. So we’re left to balance the state’s moral duty and status as a state to punish evil, or if you prefer, wrong behavior. And I think many of us know of a case that we say to ourselves, if anyone deserves the death penalty, it’s this guy. Jeffery Daumer perhaps. The killer of Barbara Jo Brown for Robert Blecker; the killers in Valley Park who burglarized their neighbor’s trailer, then worried about her identifying them, led her with her hands tied behind her back and a towel around her head to a nearby railroad bridge where they pushed her off to drown in the Meremac River for me. And to me that’s the crux of the issue – do certain crimes demand the death penalty. People will arrive at their own answer to that question – one I’m still grappling with.
