OR: Is this the Middle Ground of Principle?
Published on July 16, 2004 By CrispE In Politics
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?





Comments
on Jul 16, 2004
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%.


Last I checked only 28 presumed innocencents had been convicted of murder and executed. There hasn't been one who has been proved beyond a reasonable doubt to be innocent. Remember, if it's worth having it carries a risk.
on Jul 16, 2004
out of how many executions though?
on Jul 16, 2004
Evan Woods:
Do you have a source to link to? I remember a story on 60 Minutes a few years ago about the head of the forensic labs for the state of Tennessee supposedly falisified the data in 156 death penalty cases but that does not prove they were innocent. Should their convictions (and death penalty sentences) be overturned because the DA used data that the labs falsified?
on Jul 16, 2004
Forget what i said because i can't find the link and therefore cannot back it. Sorry. But still, even if 100 people were executed it's a deterent for would-be murderers even if some are innocent. However, it's the margin of error that could be particualarly disheartening if it were known to be as high as 20%(I'm just pulling that out of the air). If it were that high the death Penalty would have to be dispensed even more carefully than it is now.
This site is interesting, but it dosen't back my facts:
http://www.ojp.usdoj.gov/bjs/cp.htm
on Jul 16, 2004
Evan:
Thanks for the link. I guess from a practical standpoint, it's hard to know how many have been executed that were innocent. The thing is, once executed, there's no way to say "sorry, goofed, go free."
on Jul 19, 2004
Not a deterrent.
More expensive than life in prison.
Not subject to "correction".

on Jul 19, 2004
Last I checked only 28 presumed innocencents had been convicted of murder and executed. There hasn't been one who has been proved beyond a reasonable doubt to be innocent. Remember, if it's worth having it carries a risk


Well, there goes the basis of our legal system. No one is obligated to prove beyond a reasonable doubt that they are innocent, the burden of proof lies on the prosecution. Innocent until proven guilty, remember.

But still, even if 100 people were executed it's a deterent for would-be murderers even if some are innocent.


The deterrence factor regarding the Death Penalty is almost non-existant. A New York Times survey, released in September 2000, found that in the past 20 years, the homocide rate in states with a legalized death penalty has been between 48 and 101 percent higher than in states without the death penalty. According to the FBI's crime statistics, the homocide rate in 10 of the 12 states that have outlawed the death penalty is below the national average.


Here is my take on the death penalty.


The men who founded our country were enlightenment thinkers. They subscribed to Voltaire, Rousseau, and Locke. Enlightenment political philosophy, for the most part, dictated that the government existed in large part to protect the lives and well being of its citizens. This is mentioned several times by our founders in various documents -- the Declaration of Independence, the Federalist Papers, and others -- the Government is charged with protecting the lives of the citizenry. They reserved the right, however, for the government to revoke certain rights following a due process of law. This is fine, because if a fault is found with that due proccess, the decision may be reversed. Our legal code provides quite clearly for these errors. The use of the death penalty, however, does not. The government fundamentally exists because we collectively need protection. If the government then unjustly takes a life from us, that is the cardinal sin. That is the absolute most atrocious act that a government can commit -- to take the life of a citizen unjustly. Our justice system is by no means perfect, as we all know. There is always human error -- people withhold evidence, lie on the stand, there is racism, sexism, homophobia, the list goes on and on. People make mistakes and people make unfair judgements, it is as simple as that. Is it right, then, to allow such an imperfect justice system the authority to declare a sentence which can only be acceptable in a justice system which would make no mistakes? I think not. The death penalty has killed an unknown number of innocents. Let's look at a troubling number. According to a study conducted by Columbia Law Professor James Leibman, 2/3 of all convictions nation wide were reversed on appeal because of errors. Let's look at the case of a man named Graham, who was accused and convicted in 1981 of the shooting death of a man outside of a convenience store. Mr. Graham was sentenced to death almost entirely on the testimony of a single witness who picked him out of a police lineup. Six other witnesses who have cast doubt on his guilt were either not called to testify or came forward after the ruling. Lawrence Marshall, director of the Northwestern University Center for Wrongful Convictions called it "the weakest evidence [he's] seen in 30 years." And yet Mr. Graham went to death row. Another case, the case of a Mr. Burdine, was appealed because Burdine's lawyer "slept through most of the trial" and made no objections when the prosecuting attorney referred to Mr. Burdine, a homosexual, as a "fairy," "queer," "faggot," and "homo," to the jury. Such is the depth of some of the flaws in our justice system. Consequently, we cannot in good concience allow people to be put to death whose guilt we cannot be certain of. Life in prison can be reversed if fault is found. Death cannot.

But set all this aside for a moment, and let's just look at the practicalities of the matter. It costs more money to put someone on death row and execute them than it costs to put them in prison for life. So it is more expensive to execute people. The death penalty is not a deterrent, as many, many studies have shown. I cited one above. Let's then look at the homocide rate in the U.S. and some countries that do not have the death penalty. The deaths per 100,000 people in the United States is 6.26. In Sweden, it is 1.94, in the Netherlands it is 1.66, in France 1.63, in Italy 1.56, in Britain 1.45, and in Germany 1.38. The south counts for around 80% of executions in the U.S. and also has the highest homocide rate in the country. The northeast has accounted for less than 1% of executions and has the lowest homocide rate in the country. Canada abolished the death penalty in 1976. The number of homocides in Canada was 721 in 1975. In 2001, the number of homocides was 554, 21% lower than before the death penalty was abolished. The death penalty simply doesn't work. Even the American Bar Association has called for a moratorium on executions. It is not economical nor is it an effective deterrent. It gets criminals off the streets, but so does life in prison. It fundamentally undermines the basis of our legal system in that it allows the government to take the life of someone it may not have the right to kill. Many states allow for the execution of minors under the age of 18 and mentally retarted individuals. This is contrary to everything we stand for. The death penalty must go. Link That's an interesting thing to watch.
on Jul 19, 2004
During the years leading up to 1967 the number of executions decreased whilst the number of murders increased. In 1960, there were 56 executions in the USA and 9,140 murders. By 1964, when there were only 15 executions, the number of murders had risen to 9,250. In 1969, there were no executions and 14,590 murders, and 1975, after six more years without executions, 20,510 murders occurred rising to 23,040 in 1980 after only two executions since 1976!
Conclusion: Between 1960 and 1980 the number of murders skyrocketed from 9,960 to 23,040. From 1995 to 2000, executions averaged 71 per year, a 21,000 percent increase over the 1966-1980 period. The murder rate dropped from a high of 10.2 (per 100,000) in 1980 to 5.7 in 1999. This was a 44% reduction. In 1999 the murder rate was at its lowest since 1966
on Jul 19, 2004
Evan,
Wouldn't a better comparison of time frames be between England (no death penalty since 1954) and the U.S. from 1960 to 1995 (or whenever the stats were last reported) and compensated for by population? I have heard that the English have had a lesser number of convictions per capita than the U.S. I do think that it is not a factor in whether a murder is commited that someone will think "gee, what state am I in, I could get the death penalty for my crime."
The real issue is not about whether the death penalty is effective. People will argue that all night. The issue is whether there is any way those who think the death penalty is warranted and those who do not can find a common ground in the standards we set? There may be and certainly the blog describes some possibilities.