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It's Dying -- Except When It's Not


If you want to find out when "the death penalty is dying," just look on the DPIC website.  You won't need to look more than once, though, since according to the DPIC, the death penalty is always dying.  It's dying when death sentences are down (but executions are up, as they were last year).  It's dying if public support drops by a sliver within the poll's margin of error (but consistently remains at better than 2-1).  It's dying  if abolitionist bills were "introduced" in X number of states, even if every one of them flopped.  It's dying when a quarter of the public thinks capital punishment is imposed too often, another quarter think it's imposed about right, and half think it's not imposed often enough (which is the current state of public opinion according to Gallup).

.In other words, in DPIC's ideologically driven world, it's dying whenever the DPIC wants to think so, whatever the facts may be.

All this by way of prologue to a story up today on Sentencing Law and Policy.  The story has several interesting features.  Its principal focus is on public outrage in South Korea over the rape and murder of a 13 year-old girl by a fellow twice previously convicted of rape.  No one has been executed in South Korea for 13 years.  It seems to me this fellow stands a pretty good chance of ending the drought.

The main reason I think so is simple to explain:  South Koreans favor the death penatly 8-to-1.

Here's the story:

A recent rape and murder case in South Korea has sparked debate over the death penalty, with many South Koreans calling for capital punishment against the culprit.  The rape and murder of a teenage girl in South Korea has shocked the country.  The body of the 13-year-old victim was found in a water tank near her home.

The suspect -- Kim Kil-tae -- was captured earlier this month in the southern port city of Busan. He is believed to have spent 11 years behind bars for two previous rapes.

Reacting to the case, many South Koreans want the death penalty to be enforced, to deter similar crimes.  A recent survey carried out in South Korea showed that more than 80 per cent supported capital punishment.  The consensus is that the punishment should match the severity of the crime, and capital punishment also serves as a deterrence.

Of the 3,049 adults surveyed, 83.1 per cent said they supported the death penalty, and only 11.1 per cent were opposed to it....

Opinions among government officials and politicians were more divided. South Korea's National Assembly Speaker Kim Hyung-o said the state could not take away a human life, while Justice Minister Lee Kwi-nam recently hinted at support for the death penalty, by suggesting the government build a facility to execute death row prisoners.

The last time South Korea carried out the death penalty was in 1997, when 23 people were executed by hanging.  Currently, there are 59 convicts on death row.


Bill, I share your view that DIeter's DPIC is annoying for a whole host of reasons, not the least of which is the utter intellectual dishonesty of his so-called "Innocence List", which, of course, is uncritically parroted in the media.

But I do think that supporters of capital punishment have a right to be concerned about the vitality of the death penalty. The people's right to impose and carry out capital punishment IS under assault, and the those who are assaulting it are winning some battles. For example, the federal government still hasn't carried out an execution since the lethal injection stays were imposed in 2006. Arkansas is having a difficult time carrying out an execution. And the list goes on and on. What's most dismaying is that this is being done despite the clear will of the people.


The DPIC's dissembling starts with its name, which blandly suggests that it merely hands out "information." And it DOES hand out information, some of which is true (generally the parts cut-and-pasted from BJS). But mostly it hands out propaganda. Its reporting of the constant demise of the DP is a prominent example. Its "exoneration" list is, as you point out, another example. (This while it intentionally misses the biggest exoneration of all time, that being the outright acquittal of OJ Simpson. The reason DPIC deep-sixes that "exoneration" is, I strongly suspect, that it has been unable to find a single serious person, and precious few UNSERIOUS people, who think OJ is anything but guilty as sin).

I have mixed views of your other point. On the one hand, it is indeed worrisome that the abolitionist lobby has made the headway we've seen. It's energetic and opportunistic, and always at the ready to pick off a state, like New Mexico, where for reasons unrelated to capital punishment or crime issues generally, there is a temporary left-leaning majority insistent on dashing through the crack in the door while it's still there. The abolitionists figure, correctly I fear, that once they have their victory, it will be difficult to reverse.

On the other hand, the will of the people is very hard to resist over the long term. That's why I took note of the South Korea story. Apparently the governing (and press?) elite there has been able to forestall executions for 13 years even in the face of overwhelming public opinion favoring the DP. It struck me that the current case -- the rape/murder of a 13 year-old by a twice previously convicted felon -- may well break the dam.

Something similar is happening in our country. There is a temporary liberal majority in power much more tolerant of delay and obfuscation in imposing capital punishment than the public. But tempoary is just that. The day is coming, in seven months I suspect, when a more representative and less arrogant government will be at hand. When that happens, the abolitionist beach wall will start to crumble.

It won't happen fast. Indeed, it took many, many years after Gregg for executions to resume in significant numbers. But it did happen.

For the short term, your pessimism is not without foundation. For the long term, though, be of good cheer. They own the beach barriers, but we own the ocean.

I'll be a lot happier when when state death row inmates have their two state appeals and federal habeas review, and federal inmates have their two reviews, and a date is set and it is carried out. That is not happening with any regularity today. On the macro-level, It's almost as if AEDPA was never passed (although we'd have very few executions absent AEDPA).

In my view, the Supreme Court is responsible for this state of affairs. The bottom line is that the obstructionism shown by many federal judges is only dealt with sporadically and on a piecemeal basis. When plain and obviously wrong decisions like the one in Beard v. Thomas, cert. denied, are routinely left uncorrected, federal judges sense that they can give rein to their anti-capital punishment predilections. It's bad enough that victims' families have to live with years of appeals, but when the courts toss death sentences on whim, the wounds are grievous, and the Supreme Court, which is at the summit of our court system has a responsibility to deal with these abuses.

One solution may be to simply remove certain federal judges from death penalty habeas cases. Another may be to transfer all death cases from a particularly bad circuit to another one. But the bottom line, I think, is that if the Supreme Court needs to add more cases to its docket to stop the abuse, then that's what it needs to do. Or else it should deal with some of the problem judges? Should Judge Reinhardt or Judge Paez ever hear another death case again after their performance in Wong v. Belmontes? They twisted the law AND the record. It's as obvious as the nose on one's face that these two don't give the state anything close to resembling a fair shake--and yet they get to decide these cases. How fair is that to a victim's family? The question answers itself, and that the Supreme Court tolerates this state of affairs, in my view, is a black mark upon its record.

I am sorry, but I cannot be of “good cheer” when 723,000 murders and nonnegligent manslaughters in 37 years (1972-2008) resulted in 1,188 executions (0.165%). I would not characterize this percentage as “significant.” Worse still, a substantial number of these crimes were entirely avoidable because they resulted from failure to protect society against recidivists. Indeed, there have been far more recidivist murders than executions. (See: http://tcsdaily.com/article.aspx?id=021910A .)

Moreover, regarding the Supreme Court, the problem is not simply a failure to deal with obstructionism by federal judges. The high court itself is a source of much of the obstructionism. (See: http://ssrn.com/abstract=1346142 .)

There has been very little effort by death penalty supporters to inform the public about some really outrageous and absurd views expressed by justices over the years. For example:

(1) Repeated Supreme Court claims of the superiority of the “independent judgment” of five justices as to whether the penalty is “acceptable”: “The mere fact that the community demands the murderer's life … cannot sustain the death penalty”; it is insufficient “that a challenged punishment be acceptable to contemporary society”; and “public perceptions of standards of decency … are not conclusive.”

(2) A convicted murderer must be allowed to successfully argue he should not be executed because he only endangers old ladies.

(3) Rape under threat of death three weeks after giving birth can be unharmful.

(4) It is a "misnomer" to consider as victims the families (mere “third parties”) of girls brutalized, raped and murdered. (Stevens.)

(5) There is a "constitutional right" to commit punishment-free rape and murder.

(6) Finally, the Supreme Court bears heavy responsibility for an incredibly sick system that permits death penalty cases to last decades when guilt is not even contested (one is now 36 years old despite the murderer having sent a graphically detailed and boastful audio tape to the victim's mother).

Nor can I be optimistic that the next election, the results of which are by no means assured despite the premature exultant counting of chickens before they’re hatched, will bring about any change (near or long term) in behavior of the Supreme Court. Kennedy is bad enough (e.g., Atkins v. Virginia, Roper v. Simmons, Kennedy v. Louisiana). But all it takes is for Obama to replace just one of the four that Kennedy at least sometimes joins, and it will be all over for a long time. Also, there is the conservative affinity for adhering to precedents, however egregious.

For all its dishonesty (and ruthless cruelty), the DPIC has a point, except that the death penalty is not “dying” because it is largely dead, with a few token murderers executed to fool the public into thinking it is still realistic in most cases. (Again see: http://ssrn.com/abstract=1346142 .)

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