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Monday, October 02, 2006

The Supremes Dance With Death

The Supremes say that the death penalty in the United States requires that the state "rationally narrows the class of death-eligible defendants and permits a jury to consider any mitigating evidence relevant to its sentencing determination." 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, as the Supremes note, puts the burden of proof on the defendant in regard to whether or not he or she should be put to death and says that that is fine and dandy with them.

I have posted on the death penalty twice before and you may want to review the posts. They are the first two items under "Law." For those who don't have the time to do so, let me just say that an aggravating circumstance is some specific characteristic of the crime named by the state such as that the defendant killed two people or a police officer or that he or she killed someone during the course of committing a felony, the famous "felony murder" one hears about all the time. 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. Mitigating circumstances are anything the jury wants to consider from his or her being very young, or acting under duress, or being a pretty blond.

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. Forgive me for being a little dim but this seems as un-American as anything I can think of. In our system of justice, the burden of proof that a defendant is guilty of felony murder lies squarely with the state and it must meet a very high standard of providing proof beyond a reasonable doubt. 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.

But consider this point. The defendant is presumed innocent of any crime until proved guilty beyond a reasonable doubt. This standard is designed to make sure that the jury approaches the testimony in a case without bias. Now, we are grown ups here and we all know that that is a pipe dream. 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. I suppose the legal community goes through this exercise so that it can feel good about itself. Do these people really think that prospective jurors are going to always tell them the truth? Surely they are not that stupid. No one else does.

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 (more precisely, a presumption that the defendant should be put to death) in the "penalty phase" of a death penalty trial. During my work on death penalty cases in Ohio, I argued that the jury instructions at that time did bias the jury in favor of imposing the death penalty despite the fact that Ohio law labored under the pretense that there should be no such bias. Imagine my surprise in discovering that one state, at least, made a verdict of death the default choice.

Here are the differences between the guilt phase and penalty phases of death penalty laws in Kansas.
1. The guilt phase presumes a verdict favoring the defendant at the outset but the penalty phase does not.
2. Guilt must be proved beyond any reasonable doubt but not only is this not true of the penalty phase in any state I am familiar with, Kansas allows for "ties" favoring the state.
3. In the guilt phase, as in Ohio, Kansas does not allow as an aggravating circumstance that the crime be heinous, brutal, or something else ugly or that the defendant is incapable of rehabilitation, but you can be absolutely sure unless Kansas is very different from Ohio, that prosecutors will routinely stress one or the other or both things in their closing statements without objection by the defense attorney or admonishment by the judge.
4. Juries can hang during the guilty phase of a death penalty case but not during the penalty phase.
5. Jury nulification during the guilt phase favors the defendant but in the penalty phase if favors the state.
In regard to the third point, in the several cases I am familar with where lawyers in the Ohio Public Defenders office did interviews with jurors, it was these factors, especially the first, that swung the jury over to the determination to impose the death penalty. In short they totally ignored the jury instructions. This is what I meant by item five above. 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. But not in the Good Old USA.

As I noted, in Kansas, a tie in regard to whether or not the aggravators outweigh the mitigators goes to the state. What this comes down to is that if a juror is uncertain whether the aggravators outweigh the mitigators he or she should vote for death. But what should happen if the vote is, say, 7-5 for death or 8-4 or even 11-1? In Ohio back when I was doing my work on the death penalty, the law said that the jury/court was supposed to impose a life sentence unless it is 12-0 for death. In practice, that didn't happen. Jurors were forced in fact to come up with unanimous verdicts. It will be no surprise to you, I suppose, that imposing the death penalty became a higher priority for jurors than being sequestered over a weekend for further deliberations. The problem here is that while juries can "hang" in the guilt phase, they cannot hang in the penalty phase.

Another problem is the absurdity of "weighing" aggravators versus mitigators. How does one weigh the killing of a police officer against the fact that the defendant was 18, had never been arrested for a crime, and who always got good grades? I have no clue how that is to be done. This is the classic issue of judging between apples and oranges. Worse than this is the fact that Barry Scheck, Peter Neufeld and Jim Dwyer, authors of "Actual Innocence," have claimed, "in the last ten years, DNA testing has uncovered stone-cold proof that sixty-five completely innocent people were sent to prison and death row." As of April 22, 2002, 100 persons on death row had been found to be innocent of the underlying crime, not all because of DNA evidence. In July 19, 2006, a study documented that 26 people convicted of crimes in New Jersey were innocent. Not all were death penalty cases.

The fact is that our legal system is fallen and can't get up. There are two principal reasons for this. The first is that District Attorneys are elected. The second is that Judges are elected. I believe only federal and state Supremes (and perhaps appellate judges) have life appointments. There is constant pressure on DAs to get convictions, on the police to testilie, and judges not to be lenient, especially when the public is up in arms about upsurges in crime. This is where much of the corruption of the system comes from.

So far, everything I have written stamps me as a liberal. Here is where I throw you a curve ball. I believe also that the notion of "proof beyond a reasonable doubt" is both too vague a concept and too high a standard to be workable and is another major source of the corruption in the law including, specifically, police fibbing on the stand to strengthen a case. The fact is that scientists rarely can prove that this or that scientific principle is true beyond any reasonble doubt. One needs a standard that is comprehensible by the average juror, is strong enough to protect the defendant, and weak enough to be attainable. I am open to suggestions. How about: After evaluating the evidence, I am as certain as I expect myself to be before making a major life decision such as to marry someone or buy a house that the defendant is guilty.



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17 Comments:

Blogger Kelly said...

I'm going to go through this step-by-step. It'll be a long comment.

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.

Thanks for this great opportunity to engage in an interesting discussion, LG!

10:56 PM

 
Blogger Kelly said...

Great, now Begstodiffer is trolling my site. I reposted this there, and for some bizarre reason he accuses me, inter alia, of agreeing with LG on everything. I'm not sure how he can maintain such an accusation after reading this.

12:14 AM

 
Blogger Eric Dutton said...

You might remember me; I tend to show up when the subject is gay marraige, the death penalty, or Kansas.
You could almost justify a "Kansas" category in your sidebar. It would, unfortunately, be a hall of shame. I wish my state could stay out of the news until it gets its politics together with reason.

3:11 AM

 
Blogger Le vent fripon said...

Kelly, how can you justify a system which has put even one innocent person to death? How can the hypothetical benefit that it reduces crime outweigh the fact that it kills the innocent? Such a point of view leaves me baffled.

I'm curious as to why movements to abolish the death penalty have succeeded in all or most of Europe, while it seems to have overwhelming support in the US. Anybody have any ideas on this?

The country has a unique relationship to crime in general. We feel the need to kill criminals, while making a few of them into folk heroes, (e.g. Jesse James). There are no criminal heroes, for all I know, in Germany.

7:01 AM

 
Blogger Language Guy said...

One great difficulty with your position, Kelly, is that there is no evidence that having a death penalty deters murder. In fact, what deters crime in general, which is committed by the young more than the old, is access to decent employment. When people get to the state where murder is on their minds, the prospect of punishment is usually not going to stop them. The new edgy show, Dexter, is predicated on the thesis that only about 20% of murders are solved. A detective sergeant friend of mine says that such crimes are either easily solved or virtually impossible. Obviosly, the easily solved ones aren't being detered even though they fall into the category of easily solved because those involve people who know each other. Everyone knows that or should and those who don't know it are too dumb to be worried about getting caught.

I can't believe you think that DAs should be elected. These are the worst offenders against the rights of ordinary people are DAs. They have to get their convicitons no matter what. You do know that the advise and concent process is used to select higher court judges. That is workable for DAs as well. Hell, we don't even democratically elect our Presidents -- else Bush wouldn't be President.

8:34 AM

 
Blogger Kelly said...

To me, crime deterrent is not the only rationale. I wrote this post back in February on the issue arguing that punishment, or retribution if you prefer, is a proper moral ground for supporting the death penalty. The first thing I said in that post is that it doesn't deter crime.

And, as I said earlier, I don't want to justify a system that puts innocent people to death. This is playing a shell game. You know as well as I do that any erroneous conviction is a shame, but the fact-finding process (guilt phase of trial) is what needs work.

"I'm curious as to why movements to abolish the death penalty have succeeded in all or most of Europe"

I'd like to know that as well. That is an interesting state of affairs.

11:20 AM

 
Blogger Kelly said...

Hmm. I was hoping for a more spirited give-and-take on this one. Or maybe everything's been said? Oh well.

4:30 PM

 
Blogger Le vent fripon said...

Ya, me too. I read your post but can't really understand such a position. The desire to punish is a natural emotion, but punishment in itself doesn’t benefit the public in any way.

What really bothers me about the death penalty is not so much what it does to the convict, but what it does to and says about the people who execute him. The act of the state’s killing its own citizens is a sign that the state endorses violence, does not value life, and especially, that it is willing to satisfy the public’s emotion-driven desire for violent retribution, which serves no purpose for the common good.

An article on the ACLU website puts it nicely: the state “should not arrogate unto itself the right to kill human beings - especially when it kills with premeditation and ceremony, in the name of the law or in the name of its people…” It’s this “premeditation and ceremony” that creeps me out, and the phrase is an extreme understatement. The year-long processing by an enormous bureaucracy that may end in the convict’s being drugged to death just doesn’t have any place in a democracy.

As far as the Europe thing goes, I suppose that the death penalty there is associated with totalitarian regimes, communist and fascist. Perhaps since US democracy has never faced a serious scare by such regimes, this association just isn’t made.

6:07 AM

 
Blogger Kelly said...

I don't like to think of execution as a violent affair. I tend to think of violence in terms of "an unjust or unwarranted exertion of force or power, as against rights or laws", whereas I think of execution as retribution, "requital according to merits or deserts, esp. for evil". In other words, violence in these terms is unjust, whereas retribution is just. Granted there are other definitions of violence, but this is how I see it.

It seems to me that you are characterizing my view of retribution as revenge. I discuss the distinction in the post I linked to above, but this definition of revenge will suffice: "to exact punishment or expiation for a wrong on behalf of, esp. in a resentful or vindictive spirit". It is the vindictive spirit that separates the two. Revenge fits the above definition of violence, whereas retribution does not.

In my mind this is not just semantics. I bring that up because I anticipate such a response (not necessarily from anyone here). These are honest distinctions.

Finally, it's not necessarily a matter of benefiting the public. Not all justice benefits the public. There are many times when the just thing to do will be injurious to the public, as when a criminal is released due to 4th Amendment violations or when a rich person gets a tort judgment against a poor person. Aristotle said "Justice is to give everyone his own", or at least that's what one of my coffee mugs tells me. I tend to agree with the mug.

(all definitions from dictionary.com)

3:31 PM

 
Blogger Le vent fripon said...

I agree that "there are many times when the just thing to do will be injurious to the public, as when a criminal is released due to 4th amendment..." but the 4th amendment and tort law is there to protect the people. The death penalty does no such thing. Your differentiation between "retribution" and "revenge" is well taken: the former is "an eye for an eye and a tooth for a tooth..." the later is similar but adds an element of sadism.

Human lives are not quantifiable; there can be no precise answer to questions like "what does a murderer deserve?" The best we can do is keep him/her from murdering again, and work to create a society that does not tend to produce monsters.

7:41 AM

 
Blogger IbaDaiRon said...

Murder is murder, whether committed by an individual or the State. The only difference is that in the latter case, the blood is on all our hands.

Retribution and revenge, an eye for an eye and a tooth for a tooth. Let's see...where does that end up again?

Our "War on Murder" is about as effective as our Wars on Drugs and Terra. Isn't that odd? I wonder if there's a relation....

1:46 PM

 
Blogger Kelly said...

First, I want to say how refreshing this discussion has been.

But Ibad, "murder" is a term with specific legal meaning, in my mind. Even taken out of the legal context, any time society kills someone, I can't see it as murder.

12:23 AM

 
Blogger Language Guy said...

Lawyers don't get to define "murder" for the rest of is. It is an English word, first, and a term of art of the law, second. The law tends to prescribe restrictive meanings for their terms in an effort to make them precise. In doing this they distort the meaning of the term.

It is perfectly legitimate to see the state's killing of someone as murder. The reason is that there is no other term of English that is sufficiently close in meaning to how lawyers use "murder" available for use by nonlawyers to convey what they want to convey. Lawyers simply cannot be allowed to hijack the term.

8:56 AM

 
Blogger Kelly said...

Like "valid" for logicians? And as I said, even taking the specific legal meaning out of the word, I can't see it used in this way. "Murder" must necessarily carry the meaning of "wrongful killing". Killing someone in self-defense is the perfect example to show that this must be so. When the state kills someone that truly deserves it (however that may be determined) it can't be murder.

2:22 PM

 
Blogger Language Guy said...

But, Kelly, those who oppose the death penalty see such deaths as wrongful killings -- wrongful according to their values. Of course, in many cases, they had the wrong guy, which is the worst kind of wrongful killing.

5:05 PM

 
Blogger IbaDaiRon said...

Self-defense and euthanasia are the only two cases where I can see killing another person as being justifiable. (And even then, the goal should be to wound in order to incapacitate in the former, and the primary motivation compassion, preferably at the request of the person concerned, in the latter.)

Society's execution of criminals is a deliberate, premeditated action. How is that not murder?

6:39 AM

 
Blogger Language Guy said...

One can make a sound humanistic argument for the death penalty. If one is an atheist or agnostic, then human life per se has no intrinsic value. Yet, those of us in this non-religious boat nevertheless value life. In fact, I would argue that the value attached to human life is directly proportional to the respect we have for it.

Certain classes of killers -- take an easy case like serial killers who torture their victims before killing them -- through their actions demonstrate a total lack of respect for human life. Such persons arguably thereby forfeit their right to continue living and richly deserve the death penalty. Indeed, imposing the death penalty in such cases is life affirming. It amounts to saying that if you do not value human life in general, then we will not value yours. I know this sounds like a very species argument -- Orwellian even -- but I think it is not.

Terrorists who kill women, children, and men who are no threat to them, are another class of persons who richly deserve being put to death.

The problem with the death penalty is not that it is wrong but that we are too imperfect in its application. It should be reserved only for the clearest cases. We need better controls on who are determined to be proper candidates for the death penalty and better controls on the police and the courts to ensure that they are getting their verdicts right. I don't actually think this is possible. So, I oppose the death penalty not because it is inhumane or immoral but because we are lousy in administering it.

8:24 AM

 

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