Two leading sentencing scholars have posted a paper revolving around the Louisiana v. Kennedy case. Here is the abstract on SSRN:
The Supreme Court, in Kennedy v. Louisiana, is about to decide whether the Eighth Amendment forbids capital punishment for child rape. Commentators are aghast, viewing this as a vengeful recrudescence of emotion clouding sober, rational criminal justice policy. To their minds, emotion is distracting. To ours, however, emotion is central to understand the death penalty. Descriptively, emotions help to explain many features of our death-penalty jurisprudence. Normatively, emotions are central to why we punish, and denying or squelching them risks prompting vigilantism and other unhealthy outlets for this normal human reaction. The emotional case for the death penalty for child rape may be even stronger than for adult murders, contrary to what newspaper editorials are suggesting. Finally, we suggest ways in which death-penalty abolitionists can stop pooh-poohing emotions' role and instead fight the death penalty on emotional terrain, particularly by harnessing the language of mercy and human fallibility.
I've just finished reading the draft and I highly recommend checking it out. My initial thoughts are the emotion/rational divide basically mirrors (or is the same as) the retribution/deterrence divide. Since retribution is often explained not in its arcane philosophical terms, but instead in terms of payback, it fits neatly with emotions. Someone being punished fulfills an emotional need that is basically retribution. Deterrence theories, on the other hand, are, with regularity, theoretically and empirically grounded. Deterrence arguments fit the "rational" label.
I strongly agree with B&B that emotions are unavoidable in discussions of criminal sentencing. I think this is particularly the case when sex offenders are involved. I'm less convinced concerning the normative argument that emotions serve a net positive role in sentencing debates. As my previous responses to Berman's posts about Kennedy illustrate, I'm tentatively a deterrence-oriented scholar concerning sentencing policy. If a law doesn't serve a net utilitarian/deterrence function, it should not be adopted. Retribution is too abstract and sometimes counter-productive (from a utilitarian perspective) to fully inform policy. So, in the Kennedy case, I think the normative argument for emotion assumes that retribution should be the controlling theory. Perhaps deterrence factors in the background, but emotion should be the lodestar for debate. While I think descriptively, this claim is probably true, I disagree with B&B that emotion should be central. To do so risks the negative utilitarian consequences that I and others have articulated in response to the Louisiana capital rape statute (which Berman has, to his credit, argued against in other forums).
B&B do show how emotion can be used by abolitionists in these death penalty debates. Since I am no firm abolitionist, this section has less relevance to me. However, it does illustrate the potential double-edged nature of emotion in sentencing law. I'm not sure that emotional arguments on both sides are equally weighted (I think they will tend to favor the prosecution and disfavor minorities). Nonetheless, B&B provide an interesting, balanced exploration of an issue that is rarely talked about in sentencing policy debates.
Sentencing Law & Policy has its post on the article here.
1000 years from now, what will be the question on the minds of historians and anthropologists? How bad did we dick each other around because we lacked enough brain tissue to know better? Who got to feel good about punishing those who had no victims? Or will the main question be, "How on earth did these people think civil discourse on killing each other made them rational human beings?"
Of course, my question today is, "Will there even be anyone around in 1000 years to ask?"
Posted by: Dave | June 04, 2008 at 12:44 AM
Let's be objective.
The Death Penalty: More Protection for Innocents
Dudley Sharp, Justice Matters, contact info below
Often, the death penalty dialogue gravitates to the subject of innocents at risk of execution. Seldom is a more common problem reviewed. That is, how innocents are more at risk without the death penalty.
Living murderers, in prison, after release or escape or after our failures to incarcerate them, 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.
Some believe that all studies with contrary findings negate those 16 studies. They don't. 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.
However, the premier anti death penalty scholar accepts it as a given that the death penalty is a deterrent, but does not believe it to be a greater deterrent than a life sentence. Yet, the evidence is compelling and un refuted that death is feared more than life.
"This evidence greatly unsettles moral objections to the death penalty, because it suggests that a refusal to impose that penalty condemns numerous innocent people to death." (1)
" . . . a serious commitment to the sanctity of human life may well compel, rather than forbid, (capital) punishment." (1)
"Recent evidence suggests that capital punishment may have a significant deterrent effect, preventing as many as eighteen or more murders for each execution." (1)
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.
Furthermore, history tells us that "lifers" have many ways to get out: Pardon, commutation, escape, clerical error, change in the law, etc.
In choosing to end the death penalty, or in choosing not implement it, some have chosen to spare murderers at the cost of sacrificing more innocent lives.
--------
Furthermore, 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.
6 inmates have been released from death row because of DNA evidence. An additional 9 were released from prison, because of DNA exclusion, who had previously been sentenced to death.
The innocents deception of death penalty opponents has been getting exposure for many years. Even the behemoth of anti death penalty newspapers -- The New York Times -- has recognized that deception.
"To be sure, 30 or 40 categorically innocent people have been released from death row . . . ". ' (2) This when death penalty opponents were claiming the release of 119 "innocents" from death row. Death penalty opponents never required actual innocence in order for cases to be added to their "exonerated" or "innocents" list. They simply invented their own definitions for exonerated and innocent and deceptively shoe horned large numbers of inmates into those definitions - something easily discovered with fact checking.
There is no proof of an innocent executed in the US, at least since 1900.
If we accept that the best predictor of future performance is past performance, we can reasonable conclude that the DNA cases will be excluded prior to trial, and that for the next 8000 death sentences, that we will experience a 99.8% accuracy rate in actual guilt convictions. This improved accuracy rate does not include the many additional safeguards that have been added to the system, over and above DNA testing.
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.
-----------------------
Full report - All Innocence Issues: The Death Penalty, upon request.
Full report - The Death Penalty as a Deterrent, upon request
(1) From the Executive Summary of
Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs, March 2005
Prof. Cass R. Sunstein, Cass_Sunstein(AT)law.uchicago.edu
Prof. Adrian Vermeule , avermeule(AT)law.harvard.edu
Full report http://aei-brookings.org/admin/authorpdfs/page.php?id=1131
(2) "The Death of Innocents': A Reasonable Doubt",
New York Times Book Review, p 29, 1/23/05, Adam Liptak,
national legal correspondent for The NY Times
-----------------------------
Dudley Sharp, Justice Matters
e-mail [email protected], 713-622-5491,
Houston, Texas
Mr. Sharp has appeared on ABC, BBC, CBS, CNN, C-SPAN, FOX, NBC, NPR, PBS , VOA and many other TV and radio networks, on such programs as Nightline, The News Hour with Jim Lehrer, The O'Reilly Factor, etc., has been quoted in newspapers throughout the world and is a published author.
A former opponent of capital punishment, he has written and granted interviews about, testified on and debated the subject of the death penalty, extensively and internationally.
Pro death penalty sites
homicidesurvivors(dot)com/categories/Dudley%20Sharp%20-%20Justice%20Matters.aspx
www(dot)dpinfo.com
www(dot)cjlf.org/deathpenalty/DPinformation.htm
www(dot)clarkprosecutor.org/html/links/dplinks.htm
www(dot)coastda.com/archives.html
www(dot)lexingtonprosecutor.com/death_penalty_debate.htm
www(dot)prodeathpenalty.com
www(dot)yesdeathpenalty.com/deathpenalty_co
yesdeathpenalty.googlepages.com/home2 (Sweden)
www(dot)wesleylowe.com/cp.html
Permission for distribution of this document, in whole or in part, is approved with proper attribution.
Posted by: Dudley Sharp | June 15, 2008 at 11:11 AM
All violant crimes produce an emotional response and they should.
But, death penalty due process protections are extreme, for that very reason.
Death Penalty: Incredible due process protections for the defendant
Dudley Sharp, Justice Matters, contact info, below
TRIAL
A death sentence requires that the prosecution must prevail in 60 out of 60 issues, or 100%.
To avoid death, the defendant/defense counsel must prevail in only 1 out of 60 issues, or 1.67%.
This is a huge advantage for the defendant/defense and an incredible mountain to climb for the prosecution.
See DEATH PENALTY PROCEDURES, below.
APPEALS
If convicted and sentenced to death, the inmate may begin an appeals process that could extend through 23 years, 60+ appeals and 200+ individual judicial and executive reviews of the inmate's claims, which can number in the dozens or hundreds -
The inmate needs to prevail on only one issue to overturn the death sentence or verdict.
The state needs to prevail on all issues to enforce the death sentence.
A huge advantage for the inmate and an incredible burden on the state.
The average time on death row, prior to execution, is about 10 years.
DEATH PENALTY PROCEDURES
To punish with death, each one of the 12 jurors must agree with the prosecution in each of five specific areas ( 12, 14, (a)14, (b)15, (c)16, and (d)17 (with 18 & 19), as below.
There are at least 28 procedures necessary in reaching a death sentence. They are: (1) The crime must be one listed as a capital crime in the penal code; (2) a suspect must be identified and arrested; (3) Beginning with the Bill of Rights, the Miranda warnings and the exclusionary rules, U.S. criminal defendants and those convicted have, by far, the most extensive protections ever devised and implemented; (4) in Harris County (Houston), Texas a panel of district attorneys determines if the case merits the death penalty as prescribed by the Penal Code (See 12-19); (5) a grand jury must indict the suspect for capital murder; (6) the suspect is presumed innocent; (7) the prosecution must prove to the judge that the evidence, upon which the prosecution will rely, is admissible; (8) the defendant is assigned two attorneys. County funds are provided to defense counsel for investigation and trial; (9) it takes 3-12 weeks to select a jury; (10) trial is conducted; (11) the burden of proof is on the state; (12) all 12 jury members must find for guilt, beyond a reasonable doubt. In most cases, the jury knows nothing of the defendant's previous criminal acts, at this stage. If found guilty, then, the punishment phase of the trial begins; (13) the prosecution presents additional damning evidence against the murderer, i.e., other crimes, victims, victims’ or survivors’ testimony, police reports, etc; (14) In order to find for death, the issues to be resolved by the jury are {a}(14) did the defendant not only act willfully in causing the death, but act deliberately, as well, {b}(15) does the evidence show, beyond a reasonable doubt, that there is a likelihood that the defendant will be dangerous in the future, {c}(16) if there was provocation on the part of the victim, were the defendant's actions unreasonable in response to the provocations and {d}(17) is there something about the defendant that diminishes moral responsibility or in some way mitigates against the imposition of death for the defendant in this case, whereby, (18) the defense presents all mitigating circumstance, which may lesson the probability of the jury imposing death , i.e., family problems, substance abuse, age, no prior criminal record, mental disability, parental abuse, poverty, etc. Witnesses, such as family, friends, co-workers, etc., are presented to speak and offer the positive qualities of the defendant; (19) the jury must take into consideration those mitigating circumstances (Penry decision) and, if only 1 juror believes that the perpetrator deserves leniency because of any mitigating circumstances, then the jury cannot impose the death penalty; and (20) when the death sentence is imposed, the perpetrator receives an automatic appeal. (21& 22) the death row inmate is provided an attorney, or attorneys, to handle the direct appeal, at county expense, through both the state and federal courts; (23 & 24) the state pays attorneys for the inmate's habeas corpus appeals, at both the state and federal level; (25 & 26) death row inmates may be granted a hearing, in both state and federal court, to present post conviction claims of innocence. The burden of proof for these claims of innocence mirrors that used by the Federal courts; and (27 & 28) Convictions and sentences are subject to pardon or sentence reduction through the executive branch of government, at both the state level (Governor) and federal level (President).
These 28 procedures represent the broad categories of defendant and inmate protections. Within these 28 procedures, there are hundreds, if not thousands, of additional procedures and protections.
In some jurisdictions, the defense must prove mitigating circumstances by a preponderance of the evidence and the prosecution must prove aggravating circumstances beyond a reasonable doubt. This is a huge advantage for the defendant and a major disadvantage for the prosecution.
NOTE: PROCEDURES MAY BE SOMEWHAT DIFFERENT IN YOUR STATE
Dudley Sharp, Justice Matters
e-mail [email protected], 713-622-5491,
Houston, Texas
Mr. Sharp has appeared on ABC, BBC, CBS, CNN, C-SPAN, FOX, NBC, NPR, PBS , VOA and many other TV and radio networks, on such programs as Nightline, The News Hour with Jim Lehrer, The O'Reilly Factor, etc., has been quoted in newspapers throughout the world and is a published author.
A former opponent of capital punishment, he has written and granted interviews about, testified on and debated the subject of the death penalty, extensively and internationally.
Pro death penalty sites
homicidesurvivors(dot)com/categories/Dudley%20Sharp%20-%20Justice%20Matters.aspx
www(dot)dpinfo.com
www(dot)cjlf.org/deathpenalty/DPinformation.htm
www(dot)clarkprosecutor.org/html/links/dplinks.htm
www(dot)coastda.com/archives.html
www(dot)lexingtonprosecutor.com/death_penalty_debate.htm
www(dot)prodeathpenalty.com
www(dot)yesdeathpenalty.com/deathpenalty_co
yesdeathpenalty.googlepages.com/home2 (Sweden)
www(dot)wesleylowe.com/cp.html
Permission for distribution of this document, in whole or in part, is approved with proper attribution.
Posted by: Dudley Sharp | June 15, 2008 at 11:16 AM