The Death Penalty - A Quick Primer

The Supreme Court's decision this morning in Kennedy v. Louisiana to ban use of the death penalty in cases of child rape is consistent with its historical position on the issue (as part of the Eighth Amendment's ban on "cruel and unusual punishment").

Since its 1977 ruling in Coker v. Georgia, a case in which Georgia attempted to apply the death penalty to a child rapist, the Court has consistently held that the death penalty should not be used in instances where the victim does not die. Under the theory that the punishment must be proportionate to the crime, the sentence of death is inconsistent with any crime which does not bring about the death of the victim.

The rationales for the death penalty include deterrence and retribution. The Court has never felt that the deterrence question, whether having the death penalty as a punishment option deters criminals, has been effectively answered. Numerous studies have either been inconclusive or failed to persuade the Court. However, the desire for retribution, one that has its roots in the application of the death penalty since America's inception, has been consistently recognized as a valid reason for applying the ultimate punishment. The Court's evaluation on the death penalty has traditionally consisted of two components, one subjective and the other objective.

Its subjective analysis is intended to allow the Justices to determine whether social mores have evolved to a point where the death penalty is no longer an accepted means of punishment (almost as if the Court is taking America's temperature on the issue). Although, in the past, a few Justices have made the argument that the death penalty is immoral (see the quote below), given our country's long tradition of applying the ultimate penalty and its (declining but) still consistent use, the Court's conclusion has been that society hasn't reached that perspective. Applying that yardstick in the other direction, Kennedy's majority opinion today argued that these same "evolving standards of decency" justify the argument that the death penalty should not apply to instances where the victim does not die.

The objective analysis has largely been a simple process of counting states to determine whether the trend is for states to use or outlaw use of the death penalty in specific applications (see an example below). This approach was used in the 1976 case of Gregg v. Georgia, where the Court reaffirmed the constitutionality of the death penalty after a short four year hiatus caused by the Court's concern about how it was being erratically applied. Today, the Court indicated that despite the fact that six states have shifted their position (and five states have legislation pending) to authorize the death penalty for child rape, no one has been put to death for this crime since 1964. In other words, there is no trending towards greater use of the death penalty in this specific instance.

***

Justice Brennan provided various eyewitness accounts of the electrocution process. Here is an excerpt from one case (Glass v. Louisiana, 1985) --

The authorities bind the condemned to a wooden chair with leather straps, affix electrodes to his shaven head and right leg, and partially cover his face with a mask. When the switch is thrown, an initial voltage of 2,000 - 2,200 (described as enough energy to illuminate 800 lights in a home) is applied and reapplied until death. The body turns bright red as its temperature rises and the prisoner's flesh swells and his skin stretches to the point of breaking. Sometimes the prisoner catches on fire, particularly if he perspires excessively. Witnesses hear a loud sustained sound like bacon frying, and the sickly sweet smell of burning flesh permeates the chamber ... the prisoner almost literally boils; the temperature in the brain itself approaches the boiling point of water. The force of the electrical current is so powerful that the prisoner's eyeballs sometimes pop out and rest on his cheeks. The prisoner often defecates, urinates, and vomits blood and drool. (taken from "Why We'll Win" )

***

The Case of Willie Francis (Francis v. Resweber, 1947) --

Willie Francis was convicted of murder in 1945 and sentenced to death by electrocution. Unfortunately for Mr. Francis, the wires to his chair had been improperly installed. As a result he was only severely shocked, and his electrocution failed. His attorney appealed the case to the U.S. Supreme Court, arguing that electrocuting someone twice was surely cruel and unusual punishment. Here is the Court's response:

The fact that an unforeseeable accident prevented the prompt consummation of the sentence cannot, it seems to us, add an element of cruelty to a subsequent execution. There is no purpose to inflict unnecessary pain nor any unnecessary pain involved in the proposed execution. The situation of the unfortunate victim of this accident is just as though he had suffered the identical amount of mental anguish and physical pain in any other occurrence, such as, for example, a fire in the cell block. We cannot agree that the hardship imposed upon the petitioner rises to that level of hardship denounced as denial of due process because of cruelty. (taken from "Why We'll Win" )

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Now, I'll let all of you sound-off on the moral aspects of this issue!

Comments

[CEDobson]

Although normally an otherwise very laid back, passive kind of gal, this topic and the logic given by some bloggers has totally floored me - pro or con.

At one time, I believed there was good in everyone and given the right opportunities, people wanted to do well. Reading such cases; murderers like Joseph Duncan and John Couey, and the kidnapping of Shawn Hornbeck, etc.; proved me wrong. Although our judicial system is not infallible, to say the least, there was not an iota of doubt in these cases. The atrocities done to these children are unspeakable. Whether these children lived or died, they were murdered, which is punishable by death. Shasta and Shawn (not Jessica - because she was murdered by being buried alive) deserve peace of mind knowing that there is absolutely no way these men can re-offend. Only death can assure this 100%. Pro-lifer's cannot make this guarantee, no matter how remote. This is not revenge.

Since the inception of DNA proof in our courts, better technology, improvement in racism, corruption being investigated and exposed, false imprisonment is slowly changing. Sadly, we cannot change the past, but we can improve the future. We do not have to be an all-or-nothing country. In cases where there is a shred of doubt - don't. But in cases where there is no doubt whatsoever - death is the only option (in my opinion of course).

[RoloTomassi]

Well, this is a perspective I'm familiar with, so I will cut to the chase and ask these questions of you:

What is the acceptable number or percentage of innocent people subjected to capital punishment in order to maintain the death penalty?

I know, in a perfect world...but we are far from living in such a world, and as the system stands, it is indeed a one or the other situation.

So...how many?

[CEDobson]

As I said above, when in doubt - don't. In cases where there is absolutely no doubt, as in the cases I stated above, then do. It really is that simple. If an attorney is presenting facts where more than one person is involved, refuted DNA issues, and other evidence problems, then there is obviously doubt.

When I said all-or-nothing, this is what I meant. We are dealing with lives here, on both sides of the spectrum. We cannot rush to judgment, but there are obviously clear-cut cases of irrefutable proof. Lets not waste the tax dollars on them, or prolong the agony of the children involved.

[dudleysharp]

Mr. Friedberg writes: "Numerous studies have either been inconclusive or failed to persuade the Court."

16 recent studies, inclusive of their defenses, have found for death penalty deterrence.

What prospect of a negative outcome doesn't deter? There isn't one.

Death is feared more than life. Life is preferred over death. A surprise? Of course not.

[holyhandgrenaid]

We don't have the right to follow an eye for an eye method of justice. The death penalty is simply the modern version of the Code of Hammurabi (although one could argue that rapists and pedophiles getting raped in prison is also, but that's different)

a man suffers more with life without parole than if he is put to death... and it actually costs the state less

[dudleysharp]

Some death penalty opponents argue against death penalty deterrence, stating that it’s a harsher penalty to be locked up without any possibility of getting out.
 
Reality paints a very different picture.
 
What percentage of capital murderers seek a plea bargain to a death sentence? Zero or close to it. They prefer long term imprisonment.
 
What percentage of convicted capital murderers argue for execution in the penalty phase of their capital trial? Zero or close to it. They prefer long term imprisonment.
 
What percentage of death row inmates waive their appeals and speed up the execution process? Nearly zero. They prefer long term imprisonment.
 
This is not, even remotely, in dispute.
 
Life is preferred over death. Death is feared more than life.

[boiseriver]

Don't forget the death row phenomenon - many inmates spend decades confined in small spaces where contact with humans is minimal. Because they die a psychological death before the execution, many countries have refused to extradite those who flee the U.S. If you want to read an excellent account of life on death row, let me suggest "Death at Midnight," by Don Cabana (a former warden of Parchman Prison, and Robert Johnson's "Death Works."

Public support for the death penalty has been declining since the 1990s. Most of the world has either abolished it or stopped practicing it.

[RoloTomassi]

The ultimate penalty of a death sentence is not supportable, IMO, within a criminal justice system that allows circumstantial evidence to be sufficient proof of guilt. By virtue of the adversarial nature of the system and the neglect of the lawmakers to ensure fair trials, any defendant without substantial financial resources receives subpar representation and is denied tools and resources equal to those of the prosecution for investigation and research. Additionally, career and/or political gain is all too often a factor in pursuing questionable defendants, even though sufficient evidence is lacking; in these instances it is common practice for prosecutors to build propaganda-based, sensationalized circumstantial cases driven by media frenzy.

Because of the situation described above, far too many convictions are suspect. The advent of DNA evidence and review of long-held claims of innocence by convicted persons on death row has proven that prosecutors quite often send innocent people to prison to await execution.

The adversarial nature of our system, combined with the lower human nature motivations of too many prosecutors and the low bar requirements of circumstantial evidence leaves us with a broken criminal justice system that cannot be trusted to administer the death sentence with any real assurance of accuracy; this dire combination of intolerable factors puts far too many innocent lives at risk.

[ema]

Exactly. Not to mention not very intelligent and prejudiced jurors.

BTW, Obama has come out against the supreme court decision.

Makes me wonder....

[Boris]

Obama is pandering.

[CEDobson]

RoloTomassi:

I joined this blog to see if I could be swayed. I asked for arguments/reasons why I should not be for the death penalty (Supreme Court decision/child rapist blog). You made some very valid points, points that made me think. However, your condescending responses to others only showed me that this was a vain attempt on your part to flaunt your intelligence and construct the "perfect" blog entry, not really to promote change.

No doubt, you are a smart person who seems to be very passionate and well versed on this subject. I would think that someone with such passion would want to use their intelligence for the greater good, or at least be wise enough to realize that everyone is entitled to their opinion. You could attempt to listen, think or give constructive counterpoints instead of calling people idiots, etc., IMO.

[RoloTomassi]

It takes NOTHING to agree with the status quo and accept that a certain percentage of people are expendable; perhaps if you stood on the other side of the issue for a while and dealt with the utter mindlessness of most opinionated supporters and commentors on this subject, then you might be tempted to consider the vast majority of the people on the opposing side of the argument to be idiots as well.

http://www.wm3.org/live/newsevents/newsitem.php?news_Id=206

And while my ability to be active on this issue is limited, I have done more than merely express my opinion:

http://www.coldandalone.com/lastpentacle/

[RoloTomassi]

"I would think that someone with such passion would want to use their intelligence for the greater good, or at least be wise enough to realize that everyone is entitled to their opinion."

I understand your point, but if you value human life above social concepts of justified revenge or an acceptable margin of error in executing innocent people, then there is only one correct answer, and it doesn't take a rocket scientist to figure it out. I've been arguing this issue for a few years now, so I guess I'm a little short on sympathy for those who advocate the death penalty.

http://www.innocenceproject.org/Content/351.php

[dudleysharp]

The Death Penalty: More Protection for Innocents
 
Living murderers, in prison, after release or escape are much more likely to harm and murder, again, than are executed murderers.
 
This is a truism.
 
No knowledgeable and honest party questions that the death penalty has the most extensive due process protections in US criminal law.

Therefore, actual innocents are more likely to be sentenced to life imprisonment and more likely to die in prison serving under that sentence, that it is that an actual innocent will be executed.
 
That is. logically, conclusive.
 
16 recent studies, inclusive of their defenses,  find for death penalty deterrence.
 
A surprise? No.

Life is preferred over death. Death is feared more than life.
 
Studies which don’t find for deterrence don’t say no one is deterred, but that they couldn’t measure those deterred.
 
What prospect of a negative outcome doesn’t deter some? There isn’t one . . . although committed anti death penalty folk may say the death penalty is the only one.
  
Possibly we have sentenced 20-25 actually innocent people to death since 1973, or 0.3% of those so sentenced. Those have all been released upon post conviction review. The anti death penalty claims, that the numbers are significantly higher, are a fraud, easily discoverable by fact checking.

Of all the government programs in the world, that put innocents at risk, is there one with a safer record and with greater protections than the US death penalty?
 
Unlikely.

[fishsandwichesr2good]

The "evolving standard" approach is absolute BS unless you plan to truly measure it. I challenge anyone to find a poll that demonstrates that Americans are "evolving" (devolving?) away from the ultimate penalty for these kinds of incredibly repulsive crimes. In fact, I'm guessing that a vast majority of people would have no issues having this bastard hung by his nuts in the village square.

[RoloTomassi]

I can't argue with that concept; anyway, idiocy does seem to be the prime mover of the masses in th good ole US of A, so let's just stick with that, shall we?

And while we're at it, let's encourage Dubbya to declare martial law so that he can continue his reign of stupidity as well....

Welcome to America: the 1st world nation with 3rd world government, 3rd world healthcare, 3rd world social mentality, and a 3rd world concept of justice.

[dudleysharp]

As a firm adherent to the reality that incentives matter to most people, including criminals, I was concerned that if the sanction options were equal for child rape and child murder that some rapists would be more prone to murder their victims.

However, it was clear to me that there was no consensus or evolving standard against executing child rapists.

see Jim Lindgren's, A “National Consensus” in Favor of the Death Penalty for Child Rapists"

http://volokh.com/posts/1214447764.shtml

SCOTUS' evolving standards doctrine and the national consensus "standards" are both prone to this type of constitutional perversion - the alchemy of highly strained legal arguments derived from personal opinion.

The same problem was found in the juvenile death penalty decsion.

see The Bost Globe's Jeff Jacoby "A phony 'consensus' on youthful killers"

http://www.boston.com/news/globe/editorial_opinion/oped/articles/2005/03/06/a_phony_consensus_on_youthful_killers/

[GinnyinCO]

There are multiple well known valid arguments for doing away with the death penalty that I won't repeat.

The one I am concerned with is that a death sentence requires other humans to be a part of killing a human. The electrocution scene discribed here is clearly harder than deaths by injection - although they can also produce ugly results.

The bottom line is that humans are NOT programmed to kill other humans. Police officers have problems with perfectly legal and appropriate shootings. Soldiers have to be reprogrammed to overcome the reluctance to kill. One study found that only 20% of WWII vets fired their guns.

So we are putting humans in the unforgivable position of risking their sanity in order to do their job. Even if they are willing to participate. There was supposed to have been a study of the Texas "tie down' team a few years ago. I need to google around to see if it was completed, released...

Have no idea how much this play is produced. I highly recommend "Coyote on a Fence" for an excellent portrayal of death row dynamics on the human psyche.

[CEDobson]

GinnyinCO:

I wanted to thank you for your post. Out of the hundreds I have read in the past couple of days, yours is sticking with me mentally; a completely valid argument that has a lot of merit. This is really a point I never gave much thought, but now will.

Again, thank you. C.

[RoloTomassi]

http://news.ncmonline.com/news/view_article.html?article_id=09cdef1eebf60cc08bd3cac1ddd71f77

From the article:

In the radio documentary, "Witness to an Execution," produced in 2000 by South Portraits Productions and first aired on National Public Radio's "All Things Considered," a number of men who had been part of Texas' very busy death row agreed to recall their experiences. Among them was Fred Allen who, after being in 130 executions as a member of the state's "tie down" team, suddenly found himself collapsing emotionally. "I started shaking," he remembered, "and tears -- uncontrollable tears -- was coming out of my eyes... And I just thought about that execution that I did two days ago, and everybody else's that I was involved with... and it just -- everybody -- all of these executions all of a sudden sprung forward."