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DP "Expansion" -- Good, Bad, and Ugly


As noted in the News Scan today, USA Today has an article on proposals "broadening the death penalty," supposedly "countering a national trend toward scaling back its use." Doug Berman at SL&P has this post lumping all proposals together and condemning them as "symbolic politics, not serious policy-making," without any examination of the merits of individual proposals. Actually, the proposals vary widely in their merit.

The purpose of the reforms that followed Furman v. Georgia was to make the death penalty less arbitrary and more proportioned to the offense and the offender. Too much discretion and too little guidance heightened the risk that the decision would turn on illegitimate factors, especially race of the defendant. In the years since, the Supreme Court has boiled this down to two main requirements: narrowing the class eligible to be considered for the death penalty followed by a discretionary decision on whether to actually so sentence a defendant found eligible after considering individual circumstances.

Fairness and arbitrariness necessarily work in both directions. A fair system neither arbitrarily sentences a person to death for a crime nearly everyone else would get life for, nor does it arbitrarily yield a life sentence for a crime that clearly warrants death. Proposals to change the definition of the eligible class or to revise the discretionary decision-making process should be judged on whether they make the system fairer in both directions, not on a reflexive basis of "expansion is bad, contraction is good" or vice-versa.

Topping the fairness-enhancing reforms is the proposal to get rid of Virginia's "triggerman" rule. As vividly illustrated by John Allen Muhammad, the lead D.C. sniper, a person who manipulates another to commit murder for him is more culpable, not less, than a person who does the deed himself. Yet absent an exception, Virginia law could result in sentencing the puppet to death while sparing the puppeteer. Muhammad's case qualified for the terrorism exception, but a future manipulator might not.

Next up on the good ideas list is the proposal in Georgia to scrap the single-juror veto of the death penalty. The optimum way to deal with jury unanimity in the penalty phase is to treat it just like the guilt phase. The jury must deliberate until unanimous one way or the other.  If they are truly deadlocked, it is a mistrial, and the penalty phase is retried. That is how it is done in California.  However, some jurisdictions may deem that too expensive. Far too many jurisdictions have a single-juror veto, where a jury deadlock at 11 to 1 for death results in the view of the one as to the proper sentence prevailing over the view of the eleven. This results in the arbitrary granting of life sentences to murderers who thoroughly deserve death if they are lucky enough to get a hard-core opponent on their jury, possibly by lying on voir dire. The second best way is the Florida system, where the jury can make a recommendation on penalty without being unanimous, and the judge makes the final decision. The Georgia bill would allow this on a 9-3 vote of the jury.

In the mid range are proposals that create new definitions of death-eligible offenses but will not expand actual sentences much, because the crimes they define rarely happen or because most of the crimes in question are already capital under other provisions. Proposals for eligibility criteria such as killing a judge fall in the first group and those for killing a child fall in the second.

A thoroughly bad idea is legislation for a mandatory death sentence. The USA Today story indicates that the Governor of Missouri contends that his proposal would take mitigating circumstances into account, thereby addressing the constitutional problem, but it is hard to see how that is possible if it is actually a mandatory sentence. Political capital should not be squandered on proposals that will never be carried out in practice. It is better to deal with the genuine issues of reforming procedure so that the current law is made effective.

Finally, there is the horrifically bad idea of a death penalty for sex crimes in which the victim survives. I do not dispute that anyone who would rape a child deserves death as a matter of just deserts, but for the child's sake we must maintain a differential in punishment between rape and rape-murder. A rapist has a powerful incentive to kill the victim to reduce his chance of capture and conviction. We need to give him a powerful incentive not to. That is why rape-murder should be capital and rape alone should not, no matter how heinous.


While it is true that the murder of a child will frequently be a capital murder under the other existing aggravating/eligibility factors--i think there is something to be said for factors that focus specifically on the vulnerability of the victim--either young victims or old victims. Whatever the other circumstances of the crime, I think the most compelling factor for many people in terms of imposing the death penalty is the age of the victm. We might as well have a factor that focuses directly on that element, rather than indirectly.

Kent, I'm sure potential jurors who want to vote for death lie as well. So your system invites abitrariness.

But they don't even have to, under the law. The voir dire system already invites arbitrariness, by excluding members of the public who oppose the death penalty on moral grounds and allowing strongly retributively-minded jurors. But you never hear about that when proponents talk about the "will of the people" and the state's "interest" in executing.

Ward, I think you are correct, and I do not oppose adding that circumstance.

Rothmatisseko, I don't see how my preferred system, requiring unanimity one way or the other, invites arbitrariness. Nor, for that matter, does a 3/4 vote as is proposed in Georgia. As for exclusion of jurors who are set one way or the other, the rule is symmetrical under Morgan v. Illinois.

Kent, when was the last time you met someone who, seriously, would automatically impose death on every person convicted of an eligible offense? They're a lot less common than people who think our government shouldn't execute.

Right, which simply indicates that the problem of jurors who won't follow the law is less severe on one side than the other. The rule excluding them is still symmetrical and fair.

Kent, my point is that Morgan doesn't really exclude anyone, while Witherspoon excludes a lot of people who represent the community just as much as death-qualified jurors. Because of the resulting imbalance, the person who's very reticent to vote for death, but is still death-qualified, can be swayed a lot more easily than (and by) a bloc of jurors on "the other side" whose views only had to satisfy Morgan, which describes just about everyone. The jurors who barely pass Morgan will greatly outnumber and outshout those who "barely" pass Witherspoon. I use quotes because there's a difference in kind between a juror who rejects state executions and someone who's just, like most of us, not predisposed to voting for death.

And, of course, death is different. The penalty and guilt phases are completely different sorts of proceedings, with the penalty phase requiring a reliable decision about whether the convict is the worst of the worst. Why exactly do you think the two should be treated the same? After all, the worst murderers should be sentenced to death by anyone whose views satisfy Witherspoon.


I would pretty much vote automatically to impose a death sentence were I on a jury if the offender were capital punishment eligible.

But on the serious side, the loss to the state is far greater if an anti-DP venireman gets on the jury, as the state cannot appeal an acquittal, whereas, the defense can always appeal on the grounds that a "hang 'em high" juror should not have been seated.

The death penalty ought to be mandatory for certain classes of crimes: multiple murders (like more than 3); murders by parolees; murders while incarcerated; murders of witnesses; murders of police officers; murders of judges; murders by illegal aliens.

"After all, the worst murderers should be sentenced to death by anyone whose views satisfy Witherspoon."

The three jurors who voted to sentence the Aryan Brotherhood leader to life in prison (i.e., no punishment at all, given that he was already in prison for life) demonstrated rather conclusively, IMHO, that what you say should be true is not.

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