OR: Is this the Middle Ground of Principle?
There are many issues that surround the death penalty and the debate goes on now 7,000 years into real human history. Both those for and against can make compelling philosophical arguments why their position is correct. Of course, 99% of those who make such arguments will never be in a position personally where it will be an issue. Perhaps the focus, then, should be on where there might be a middle ground available to both sides, the application of the penalty itself.
There are 3 areas of consideration that should be considered in regard to application: evidence, pre-meditation, and application of execution. What standards should be considered for each so that we can be sure "beyond a reasonable doubt" that justice has been done in 99% of all cases?
EVIDENCE
If I remember my "Perry Mason experience" you need motive, weapon and opportunity to convict a person of a crime and murder is certainly a crime. Quite often though opportunity consists of a prosecutor saying to the jury, in essence, "this person is the only one who could have done it." Is this the standard? Others want a videotape, DNA, and 3 witnesses for conviction. We should err on the side of the accused in this regard because videotape can be tampered with, DNA places someone at the scene but does not place them there specifically at the time of the crime and witnesses often are incorrect.
The weapon enters into this also. Police go to great lengths to recover weapons but they are often not found. Does that make the death penalty unenforceable? Someitmes the weapon is common place material like rope that can be easily stripped of residue and abandoned where it will not be useable in court. Is the weapon that important? Remember, we are not simply talking about conviction, but rather a sentence of death. I think we all have some ideas and I hope you share them.
PRE-MEDITATION
A murder that has been pre-planned is considered by most to be more heinous than the corner store robbery shooting. There is a sense that a person who loses their life in the first case somehow had less of a chance to respond and so was taken advantage of more than in the second. Age often enters into the equation in this regard. An 18 year old is somehow considered too immature to have planned a murder that a 55 year old businessman might commit. (Thank God they respect those over 50!)
Can we know the mind of the murderer to know whether the crime was pre-meditated or simply occured on the spur of a "moment of passion?" What evidence is available as proof or does proof need to be presented? Many times the accused has a plan but at the last moment changes method or weapon because of opportunity. That doesn't make it less pre-meditated, does it? Once again, remember you are sentencing someone to death which is not reversable and the evidence has been wrong in the past. What do you need to safeguard that a mistake does not occur again?
APPLICATION OF SENTENCE
This is the area where I think there might be more safegaurds against the wrong decision. Let's assume for sake of discussion that we have satisfied the standards for evidence and pre-meditation and the accused is now the convicted. What safeguards (i.e. hoops?) do you want for this final consideration to be fulfilled? We currently have judicial review in case there are procedural issues but they seldom consider the human element. Should the family of the victim have a say in the matter? If there is no family, who speaks for the victim? If you say the state, doesn't a prosecutor or judge have a conflict of interest in asking for the death penalty? Should we consider an independent panel (not the jury who convicted) who would look at the standards we decided? Should there be an appeal procedure from the sentencing panel?
Should we insist on application of the sentence by a family member? Many of us don't have the capability of doing such a thing as ending a person's life, no matter what they did. But ultimately isn't justice personal in this sense? Shouldn't the victim's family be given that in whatever terms they decide is appropriate? Why should the process be impersonal as it is now, cold and harsh when we know mistakes can be made?
That, unfortunately is the problem. Mistakes are made and then the convicted is the victim. The victim of a system that is flawed, regardless of any attempt we make to put in safeguards. But remember, we put in a loophole of 99% certainty. We will accept some mistakes. We accept that our judgment in some cases will be flawed. I have no personal statistics (maybe someone has a source for them) but there seems to be some doubt in most of those against the death penalty that it even approaches 99%.
Standards are what safeguard our society for what we are and do. We test children for competency, materials are tested for strength, even an election is a standard by which society operates. It is obvious with the country split approximately 50/50 on the death penalty that the standards for the death penalty are not what they should be.
So what should they be?