Tuesday, January 5, 2010

A Crippling Blow to Capital Punishment?

As most of you probably know, I am a long time opponent of capital punishment for several reasons.  Killing is the most hypocritical way to say, “Don’t kill.”  All too often, we execute the innocent.  The manner in which it is applied is neither consistent nor fair.  It costs several times more money to execute than to incarcerate for life.  Here is a promising development:

death-penalty Last fall, the American Law Institute, which created the intellectual framework for the modern capital justice system almost 50 years ago, pronounced its project a failure and walked away from it.

There were other important death penalty developments last year: the number of death sentences continued to fall, Ohio switched to a single chemical for lethal injections and New Mexico repealed its death penalty entirely. But not one of them was as significant as the institute’s move, which represents a tectonic shift in legal theory.

“The A.L.I. is important on a lot of topics,” said Franklin E. Zimring, a law professor at the University of California, Berkeley. “They were absolutely singular on this topic” — capital punishment — “because they were the only intellectually respectable support for the death penalty system in the United States.”

The institute is made up of about 4,000 judges, lawyers and law professors. It synthesizes and shapes the law in restatements and model codes that provide structure and coherence in a federal legal system that might otherwise consist of 50 different approaches to everything.

In 1962, as part of the Model Penal Code, the institute created the modern framework for the death penalty, one the Supreme Court largely adopted when it reinstituted capital punishment in Gregg v. Georgia in 1976. Several justices cited the standards the institute had developed as a model to be emulated by the states.

The institute’s recent decision to abandon the field was a compromise. Some members had asked the institute to take a stand against the death penalty as such. That effort failed.

Instead, the institute voted in October to disavow the structure it had created “in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment.”

That last sentence contains some pretty dense lawyer talk, but it can be untangled. What the institute was saying is that the capital justice system in the United States is irretrievably broken.

A study commissioned by the institute said that decades of experience had proved that the system could not reconcile the twin goals of individualized decisions about who should be executed and systemic fairness. It added that capital punishment was plagued by racial disparities; was enormously expensive even as many defense lawyers were underpaid and some were incompetent; risked executing innocent people; and was undermined by the politics that come with judicial elections.

Roger S. Clark, who teaches at the Rutgers School of Law in Camden, N.J., and was one of the leaders of the movement to have the institute condemn the death penalty outright, said he was satisfied with the compromise. “Capital punishment is going to be around for a while,” Professor Clark said. “What this does is pull the plug on the whole intellectual underpinnings for it.”… [emphasis added]

Inserted from <NY Times>

To summarize this in the simplest terms, the people who wrote the book on capital punishment has come out and said that  that the book is all wrong.  Isn’t it time that the US joined the civilized nations of the world?


Randal Graves said...

Once those civilized nations barbarically attack us, you'll sure be changing your tune, filthy hippie!

Lisa G. said...

About 20 years ago, I served on a jury trial for a kid who was 18 and was arrested for underage drinking and resisting arrest. (For those who've never served, do it. It is a very interesting process and fun too; bonus, you get out of work.) I was about 28 at the time, just 10 years older than this kid. I was the youngest on the jury panel by a good 20 years; I was the foreperson (mostly because I have a big mouth - in case any of you haven't noticed...). I took one look at this kid and knew he was guilty (that's the auditor part in me); I swear, I wanted to fry him just to wipe that smirk off his face. :) He was a rich kid who had a party while Mommy and Daddy were off in Barbados.

We voted first, and came back split 6-6. Then we went around the table and everyone got to say why they voted the way they did. Then we voted again. 11-1 (my big mouth must have been awful persuasive and I took a big ass pile of notes the entire time). We talked some more. Voted again - same 11-1. I knew who the holdout was, the guy that sat next to me the entire trial! We talked and voted several more times with the same result. We were deadlocked and I had to go and tell the judge that. The smirk on that kid's face when he left the courtroom made me want to strangle the little shit.

I waver on the death penalty. If there is DNA evidence and the crime is heinous, I would vote for the death penalty. George Ryan (the gov in my state - say, how the pen in Wisconsin treating ya?) put a moratorium on the death penalty before he left office. There was one guy who cut a woman's baby from her and left her to die. I would have pushed the button myself on that one. But there are too many cases that have been overturned, and surely innocent people have been executed, so it's time for it to go.

But if that kid ever showed up in my courtroom, I'm sending him down the river for life. :)

Vigilante said...

Yes, Lisa, my jury duty is what convinced me of my conversion on the death penalty. Even though my back ground was unilateral disarming, civil rights dude to-the-max-hippy, I always wanted to fry all the killers. Until, that is, I sat on a few juries. (And, of course, I made my mind up during the voir dire.) But the real kicker was learning how, as foreman, how easy it was for me to control jury deliberations and decisions. My conclusion was that it would be reckless, indeed, to trust arbitrary decisions of life/death to such a rag-tag group of 'peers' extracted from ex-employed, under-employed, or unemployed citizenry. It's not the immorality of frying felons that got to me; it was the stupidity.

Lisa G. said...

My jurors were quite the opposite - even though what we were really dealing with was a misdemeanor, Daddy should have just written a check - my jurors really put some thought into their answers about how they voted and we even went back over testimony while deliberating. And the jury was well mixed - white, black, hispanic and of all different ages - mostly 40-50s. We did have one little grandma, and I swear, she would have voted to fry the kid too. :) She cracked my ass up several times. She even threatened to spank him in open court. She was a real spitfire that one; if I were one of her grandkids, I would not wise off to her. Plus, she made awesome cookies!

Jack Jodell said...

I'm with you, TomCat, and I applaud these findings. All capital punishment is is frontier mentality revenge. It does not deter crime, nor does it undo the crime committed. Denmark and Norway have a far higher rate of success at real rehabilitation than we do. We can and should learn from them. Even going further than that, morality and ethics should become staples of early education in our schools. Perhaps that might help clean up some of our rampant greed and white collar crime, too!

Lisa G. said...

TC - something weird is going on on your blog. The post after this is dated 12/22/09. Are we in a time travel machine? Or am I finally losing it? I'm ok with either, frankly. I could use a nice rest in a padded cell for a while.

Lisa G. said...

Randal, I don't know what is wrong with you, but I like it. Every time you post, I LMAO. You have a wicked sense of humor and irony coming out of your ass. Funny shit!

Lisa G. said...

Ok, Jack, you've changed my mind - the death penalty for white collar criminals only. (I'm kidding!) But, they serve their time in Joliet or a Supermax prison - no more of this CC BS. I'll even cut their sentence in half; they'll think twice about embezzling money or wiping out their employees' retirements with that sentence hanging over their heads.

Lisa G. said...

Oh, and I'm not saying I didn't do what this kid did - plenty of times - I just didn't get caught. And I sure as hell wouldn't have been stupid enough to resist.

I would have asked for the death penalty in my case. My parents would have forced me to live at home and go to community college. For me, that was a fate worse than death!

MadMike said...

I am opposed to the death penalty for a variety of reasons. One of them is that it costs more to execute these assholes than it does to imprison them for life. Secondly, it is barbaric and we are one of the only western nations to still practice it. Third, and most importantly, it is not punishment enough. Once dead you stay that way. I recommend we incarcerate these dirtbags in 8'10' cells 24/7, for the rest of their natural lives. Now THAT is punishment.

Leslie Parsley said...

Interesting that this should come up right now. I've just finished reading "Chasing Justice." It is written by a guy in Texas who was wrongfully charged and incarcerated for 20 years - much of it on death row. The sheriff, the DA, the judges, juries and attorneys lied, fooled with evidence and screwed him in the back. They were totally corrupt. In prison he was beaten and subjected to sexual abuse.

Had it not been for a Dallas newspaper reporter who kept pounding away for justice and the Centurian Ministries, which works to the best of their abilities to represent the innocent, and some decent hard working attorneys, Kerry Max Cook would probably be dead. After four triaqls he was finally exonerated.

I have always been against the death penalty - cruel and inhumane, doesn't teach not to kill, and all too often kills the innocent.

TomCat said...

Randal, you are hereby sentenced tom life without possibility of sanity. ;-)

Lisa, the problem is where do we draw the line? Also, both federal labs and labs in Texas have been caught faking DNA evidence.

Vig, that's a good point. Because I volunteer with prisoners I have been exposed to amazing cases.

Cookies, Lisa? Isn't that jury tampering?

Well said, Jack. I would add that the states with the highest murder rates in the US are the ones that practice capital punishment.

Lisa, I looked at that post and it's dated right now. Have you been into Oso's 'medicine' stash? ;-) On Randal, I always worry that folks that don't know him will take him at face value. I'm glad to see you seeing the light on this issue.

Mike, that's where a lot of them are. On the other hand, there are some who have chosen to rehabilitate themselves despite the knowledge they are in for life. Some of them have been a major asset in helping other prisoners learn to become accountable citizens.

Well said, Leslie. I fully agree.

Leslie Parsley said...

Lisa - DNA: In the incident I described earlier, the DNA was hidden.

dudleysharp said...

Has the ALI become non academic or is this the new academia?

The ALI chose two anti death penalty activist law professors to prepare the ALI's final review of the death penalty before their final vote against the death penalty.

ALI could not have been duped idiots here.

Even a non academic could rip some significant holes in their report.

ALI, be a bit more subtle next time and pick anti death penalty folks that some ignorant few might think are neutral. At least give some appearance of objectivity, as opposed to a blatant disregard for it.

They even misinterpreted McCleskey v Kemp, for goodness sakes. No surprise. Well, a bit of a surprise.

Jordon Steiker was in the audience at a death penalty debate at U of Texas Law School, wherein he asked me a question, along the lines of,

"Dudley, are you telling me I have been improperly teaching McCleskey". My reply was along the lines of "Yes, I suspect most, if not all law professors do." Then, I explained why. I guess he forgot.

Doug, I suspect this is still happening.

As in:

From ALI's death penalty review, page 29 PDF, http://www.ali.org/doc/Capital%20Punishment_web.pdf, as roughly, in McCleskey,

" . . . the study concluded that defendants charged with killing white victims were 4.3 times as likely to receive a death sentence as defendants charged with killing blacks . . ."

Complete, utter nonsense.

The study results were by an odds multiplier of 4.3, not 4.3 times. What's the difference? An odds multiplier of 4.3 MAY FIND a differential of only 2-4%, whereas 4.3 times is a differential of 330%.

Huge variables. Some explanation:

1) "The Math Behind Race, Crime and Sentencing Statistics"

2) See "The Odds of Execution" within "How numbers are tricking you"

NOTE: In the first review, by Paulos, I did an analysis of the Philadelphia study by Baldus. The oft wrongly interpreted 4 times differential, was an odds multiplier of 4. My analysis found that if only 2% more whites were sentenced to death and 2% fewer blacks, there would be zero statistical difference in sentencing, as opposed to the wrongly interpreted 300% differential represented by 4 times.

Baldus could have fully explained this in the Philadelphia study, just as he could have, way back in McCleskey.


Hi Tom!

I've missed your punditry!

My very best wishes for a peaceful, prosperous and healthy new year...

Looking forward to reading your views on US and world affairs for the next 12 months!

Lisa G. said...

In the case I mentioned, the guy cut the baby out of the woman and left her to bleed to death; his dna and his accomplice's dna and fingerprints were all over everything. They even carried the baby around for a couple of weeks trying to pass it off as theirs (the woman was white, the criminals were black). There was no question of their guilt (they even, stupidly bragged about it while waiting for trial...). This woman had 2 other small children; her mother wound up taking those poor kids. Like I said, in a case like that, I would gladly have pushed the button myself.

I know, there are too many cases where people are under or mis-represented, evidence is withheld, and cops and prosecutors collude with each other, especially when the defendants are poor or not white. For the most part, I agree that the argument for abolishing it is entirely valid. But in the case above, monsters like that shouldn't be allowed to live. There's no rehab for people like that.

Lisa G. said...

TC - I was having a blonde moment (yes, another!) but I fixed it now. A big DUH on my part.

otis said...

I am in agreement to get rid of the death penalty. I disagree with the 'and joining the rest of civilized world' comment, though. Maybe in Europe they don't do death penalty, but I think that is about it. Oh, and Canada, I don't think that they would ever execute either criminal in their prison system. So, I think that a better comment would be 'lead the world to a better civilization'. (As soon as we stop elected idiots into office. You may now berate me for my Bush votes. Lisa does... incessantly.)

Now, on the Electoral College thing, Lisa and I were talking about that and I realized something: Panama, Greneda, Iraq, and Afghanstan all elect their President by popular vote. If the Republicans thought the Electoral College was such a good idea, why didn't they establish it, or something similar, in EVERY DEMOCRACY THE US HAS EVER SET UP OR BEEN PARTY TO SETTING UP!! Just an observation.

Lisa G. said...

I still have the bumper sticker in my garage (Otis took it off my car for 'my own safety') that says "Be nice to America or we'll bring Democracy to your country."

Yeah, and what he (Otis) said.

And now I finally see that this posting thing is not rigged since I finally made the list. I got it for the sympathy vote, I know it.

Please just tell me it was not the blonde post wasn't the one that put me on the list. Don't tell me if it was.

otis said...


Well, it seems that there might be something to what you are saying. I just looked at:
(Disclaimer: I have done NO due dilligence on this site)

It seems that 42.9% of the Death Row population is black and 55.0% white. Now, statistically speaking, if you are a black man, without a High School diploma, you are SIGNIFICANTLY more likely to end up on Death Row.

Another interesting stat to add to this conversation is that the rate of return to jail after going to jail once is in the mid 90%, that was in 2005 when I did a paper on it for my English class. So, that being said, how long is it before a criminal 'has nothing to lose', especially in a 3 strike state. Going to jail for 20+ years if you get caught breaking and entering again? Leave as little witnesses as possible. I have not seen any statistics on 'motivation for violent crimes', so this may be an erroneous statement. However, it is a logical conclusion that you don't need a high school diploma to come to.
We need to create a Rehabilitation System and not a Prison System. I think that probation should be dependent on completely at least one educational degree higher than when you went in. No Diploma? Get a GED. Got a Diploma? Get an A.A./A.S., and so on. You already have a B.A or M.A.? Congrats, you have just made the teaching staff. Maybe you can't teach, but you can certainly grade papers, now can't you?
Yes, I think that my tirade and the death penalty are related. I think that there are those beyond rehabilitation, as well. If you are, then you cease to be a functioning member of society, and I will advocate for your violent removal from said society, permanently. You can work for W. on his ranch. You ain't comin' back from that.
I put that caveat in my argument only because my mother would always say she was against the death penalty and I would ask her if she was heading down to Statesville Prison (in Joliet) and holding a candle for John Wayne Gasey (sp?), convicted of at least 10 murders of boys under 14 found buried throughout his house in the early 80s. She said, "No." I asked her if she flew to Florida and held a candle for Ted Bundy. She said, "Ew, no." That is why there should be a provision for people that are nothing more than a danger to society and that is all that they would ever be. I don't know, nor do I claim to know, what that criteria is or what group should have that kind of power. Until we can figure something like that out, unfortunately, it is too costly to our credibility and our taxpayers to continue the death penalty.

dudleysharp said...

Gacey torture and murdered at least 33.

and review:

"The Death Penalty: More Protection for Innocents"

A Death Penalty Red Herring: The Inanity and Hypocrisy of Perfection, Lester Jackson Ph.D.,

"Cost Savings: The Death Penalty"

Duke (North Carolina) Death Penalty Cost Study: Let's be honest

"Death Penalty Sentencing: No Systemic Bias"

gabrielle said...

Great dialogue!
TC, am in agreement with your arguments against capital punishment: ethical, legal and pragmatic.

It is a system which is weighted against the socially dispossessed and an ineffective deterrent against crime. Each year, an untold number of innocent people are put to death in the name of justice. Aside from the inherent racial and economic disparities, the death penalty is often arbitrarily applied. For example:

Since capital punishment was reinstituted in Texas in 1976, one county, Harris, has been responsible for one-third of the state's cases leading to executions... For nearly this entire time Holmes has served as the county prosecutor, with strong support from voters... Holmes has sent more men to their death than any other D.A. in America. A survey in 1999 found that Dallas County had thirty-seven inmates on death row, while Harris had exactly 100 more, even though its crime rate is lower.

The U.S. is one of the last industrialized countries to retain this form of punishment. Ninety three percent of all known executions take place in five countries: China, Iran, Saudi Arabia, Pakistan and the USA. Once again, we are the outliers on the wrong side of human rights and justice.

A Hanging, by George Orwell, tells the story of an execution that he witnessed while he served as a policeman in Burma in the 1920s.

He wrote, "It is curious, but till that moment I had never realized what it means to destroy a healthy, conscious man. When I saw the prisoner step aside to avoid the puddle, I saw the mystery, the unspeakable wrongness, of cutting a life short when it is in full tide. This man was not dying, he was alive just as we were alive..."

Killing a murderer does not bring the victim back to life. It achieves nothing but the death of still another person.
Perhaps the most profound impact and heaviest burden of all lies with those of us who tacitly enforce this policy by proxy. I believe the act of taking a life fundamentally changes who we are.

dudleysharp said...


I find some of your positions lacking in factual support.

Deterrence Issues:

"Deterrence and the Death Penalty: A Reply to Radelet and Lacock"

"Death Penalty, Deterrence & Murder Rates: Let's be clear"

23 recent deterrence studies finding for deterrence, Criminal Justice Legal Foundation,

Innocence issues:

A Death Penalty Red Herring: The Inanity and Hypocrisy of Perfection, Lester Jackson Ph.D.,

"The Innocent Executed: Deception & Death Penalty Opponents"

"Cameron Todd Willingham: Another Media Meltdown", A Collection of Articles

"Death Penalty Support: Modern Catholic Scholars"

"Sister Helen Prejean & the death penalty: A Critical Review"

"At the Death House Door" Can Rev. Carroll Pickett be trusted?"

"The Exonerated: Are Any Actually Innocent?"

The 130 (now 139) death row "innocents" scam

Racial Bias:

"Death Penalty Sentencing: No Systemic Bias"

TomCat said...

Leslie, for prosecutors to hide DNA evidence is not uncommon. Sadly, their career advancement depends on getting convictions, especially in high profile cases.

Dudley, despite your allegations the fact remains that the organization that has provided the legal basis for capital punishment no longer supports their previous position. If that chose anti death penalty activists to write their new position only tells me that this broad based organization is solidly behind their new position. You seem really upset about this decision. If I may ask, what happened to you that the prospect of not killing people for vengeance seems to cause you such pain?

Hi Anna (HB). How was your vacation? I look forward to the insight you give me on European matters as well. Thanks!

Lisa, I agree that there are occasional cases that are cut and dried. However there are other factors at play here as well here. I do not see how any sane person could commit such an insane act. I wonder what they endured to make them so bitter as to do such things. I wonder if we can find something wrong with their brains that perhaps we can learn to identify and correct. Killing closes those doors.

Otis, I'll own the "joining the rest of the civilized world" statement. Most civilized nations have abolished the death penalty. Countries still using capital punishment include Afghanistan, the Bahamas, China, Cuba, Egypt, India, Iran, Iraq, Jamaica, Japan, Jordan, North and South Korea, Libya, Malaysia, Pakistan, Rwanda, Saudi Arabia, Singapore, Sudan, Syria, Thailand, Uganda, United States and Vietnam. With few exceptions, most are known for human rights problems. I fully agree with the rest of your argument. Before the GOP dominated Congress, in partnership with Bill Clinton, eliminated Pell grants for convicts, many earned degrees in prison. The recidivism rate for those who earned a four year degree is under 3%. The recidivism rate for those who earned a two year degree is under 8%. Overall recidivism is now around 70%, nationwide.

Gabrielle, I fully agree. Thank you.