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Residual Doubt and Commutation

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Governor Strickland has issued a "residual doubt" commutation in the case of John Spirko. Doug Berman has this post at Sentencing Law & Policy. Bob Paynter reports here for the Cleveland Plain Dealer, and the PD site has the Governor's statement here. (The Governor's own web site does not have the statement as of this writing, oddly enough.) The order reduces the sentence to life without parole. Doug is critical of this decision:

For a host of political reasons, I understand Gov. Strickland's interest in splitting the difference here. If Spirko is in fact innocent, this commutation is a grave injustice to him; if Spirko is in fact guilty, this commutation is a grave injustice to the victims of his crime and the legal system.


I do not agree that a decision like this is necessarily political and not a sound decision as a matter of policy. Without getting into the detailed facts of the particular case, I think a commutation from death to LWOP can be the correct action for the clemency authority in certain "residual doubt" cases.

Electronics provides us with a useful analogy for a jury's verdict decision process. In digital electronics (like the RAM in your computer), every transistor is either on or off. Its output voltage is either near the full supply voltage or near ground (zero). In analog electronics (like the old stereo gathering dust in the closet), a transistor's output is proportional to its input. It can be anywhere between ground and supply voltage and is rarely at either end of its range.

The jury has an analog input but digital output. It takes in evidence that is generally not absolutely conclusive proof one way or the other, but the verdict is simply guilty or not guilty. We set, in subjective terms, different trigger levels for different kinds of outcomes: preponderance of the evidence for most civil matters, clear and convincing evidence for some, and proof beyond a reasonable doubt for the guilt verdict in a criminal case. We should not lose sight of the fact that the jury's black-or-white answer is based on shades-of-gray information.

Although not instructed to do so, juries do often set a higher trigger level of proof of guilt before they will return a death sentence in the penalty phase. The Hillside Strangler absolutely deserved the death penalty, but the proof that Angelo Buono was the Hillside Strangler was just barely sufficient, in the jury's view, to return a verdict of guilt, and they struggled with it. Then they quickly returned a life verdict in the penalty phase, and Buono lived out his natural life in prison. Life was not the correct sentence for the multiple, horrific crimes in this case, but the jury decided it was the right verdict given its residual uncertainty on guilt.

Executive clemency authorities -- the governor in most states and clemency boards in a few -- have applied a similar standard, and in recent years they have been getting more explicit about it. In the Troy Davis case in Georgia, for example, the board stayed the execution to consider Davis's claims of actual innocence, stating, "The members of the Georgia Board of Pardons and Paroles will not allow an execution to proceed in this State unless and until its members are convinced that there is no doubt of the guilt of the accused...." (They subsequently suspended their consideration when the Georgia Supreme Court took the case up again.)

We necessarily live in a world of imperfect knowledge. Decisions must be made with the awareness of the limitations of knowledge. Doug's statement is correct that a life sentence in Spirko's case is not the correct sentence. It is an injustice one way or the other, just as it was in the Hillside Strangler case, but we don't know for certain which way. So if the governor's assessment of the evidence is correct, and I will assume for this discussion that it is, then it is the correct decision. Spirko's lawyers can continue trying to prove his innocence, as a comment at SL&P says they have pledged to do. Maybe he will be released some day, and maybe not.

Opponents of the death penalty maintain that anything less than absolute certainty precludes executing a death sentence. Because absolute certainty is unachievable, the argument goes, the death penalty must be abolished. However, that argument fails because abolition of the death penalty will also cost lives through lost deterrence and murders by life prisoners. There simply is no zero-risk option. With a high standard of confidence for executing a death sentence, keeping the death penalty presents a lower risk to innocent life than abolishing it, by a wide margin.

What level of proof is there between "beyond a reasonable doubt" and absolute certainty that allows us to go ahead with an execution? It is a difficult concept to put into words. No doubt different people can look at the same case and come to different conclusions. Even though it is not quantifiable, this final filter at the end of the process is a valuable part of the system.

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