Come November, the death penalty debate is going to get a shot in the arm, so to speak.
Doug Berman reports on SL&P that the well-tattooed former drug user, now local Houston judge, Kevin Fine, will convene a hearing November 8 on whether the death penalty is forbidden by the Eighth Amendment under the theory that it presents too grave a risk that innocent people will be (and have been) executed. Doug quotes a Texas newspaper report as saying:
Fine initially granted the motion [to forbid the death penalty] in March, declaring the law unconstitutional because he believed it is safe to assume innocent people have been executed. He also questioned whether society, considering the recent history of death row inmate exonerations, can continue to ignore this reality.
There are at least three problems immediately evident here. One is that "this reality" is no such thing. There is not a single case in at least the last 40 years in which any neutral body -- a court or anything else -- has found that an innocent person has been executed. The shrillness of these executed-but-innocent claims is matched only by their mendacity, as Justice Scalia demonstated in his devastating concurrence in Kansas v. Marsh.
Second, it's a mystery why the defendant in the case before Judge Fine should benefit, on supposed innocence grounds, from proof, if there were any, that an innocent person had been executed in a different case. Absent a showing that the present defendant is arguably innocent -- and no such showing has been made to my knowledge -- an innocence error elsewhere is irrelevant. The defense argument here is to be taken no more seriously than an argument that, because innocent people have sometimes been convicted and imprisoned, imprisonment in every case violates the Eighth Amendment.
But it's the third reason that really rings the bell in this case, and shows what a con job it is.
Apart from its other problems, Judge Fine's view that society can no longer "ignore" the impications of the "reality" of the executed innocent just ignores what is actually going on in our country. Gallup, http://www.gallup.com/poll/123638/in-u.s.-two-thirds-continue-support-death-penalty.aspx has found that almost three-fifths of the public already believes that an innocent person has been executed in the last five years, but still overwhelmingly supports the death penalty (by better than two-to-one). Indeed, the same poll showed that, notwithstanding the (mistaken) view that an innocent convict has been executed in recent times, half the public believes that the death penalty isn't imposed often enough.
Given these facts, the prosecution should move for, in effect, summary judgment. Here's why such a motion ought to prevail.
The Supreme Court has made it clear that the principal determinant whether a particular application of the death penalty violates the Eighth Amendment is public consensus. The Court has been worse than slippery in its method of determining a consensus, as its recent execrable Graham and Kennedy decisions (among others) illustrate. But there is simply no way to elide the truth, shown by Gallup, about what the public consensus is on the death penalty per se. A strong majority believes that we have executed an innocent person, and an even stronger majority continues, nonetheless, to approve of capital punishment as a permissible penalty for murder. That is simply the end of the ballgame so far as Judge Fine's Eighth Amendment theory goes.
These facts notwithstanding, Judge Fine is certain to go forward with the hearing. As the title of this post suggests, that will present a danger but also an opportunity. The danger is that it will be turned into an anti-death penalty carnival -- a show trial before a rigged audience, similar to but more important, and worse, than the one in which Kent recently participated in England. The defense will be permitted to put on "experts" from the DPIC, the ACLU, the Innocence Project and all the rest to trot out their usual claims. This will all be dutifully and loudly reported in the New York Times, the LAT, the Washington Post, MSNBC and a huge variety of other liberal media outlets.
But the reporting of the "evidence" will pale in comparison to the reporting of the judgment, which is scarcely an unknown. Judge Fine will conclude that innocent people have indeed been executed -- or, at a minimum, that there is a substantial likelihood that this has happened. That "judicial" conclusion, in turn, will form the launching pad for a fresh round of bullhorn-boadcasted announcements that, finally, a court has found as a fact that we've been executing innocent people and, that as a civilized society, this simply must stop.
We should not underestimate the importance of this argment. It counts with serious people (or it would count, if it were true). It was a critical factor is England's death penalty abolition a half century ago. It's tempting to look upon Judge Fine and his hearing as a sideshow. But that would be a big mistake; it's more important than it looks.
Given Judge Fine's all-but-announced pre-judgment of the case, his finding probably cannot be avoided at this point. But what our side can do is work with the prosecution to develop and present the mountain of countervailing evidence. This will have two quite important effects. First, it will temper the liberal media's ability to portray the hearing as an undiluted display of the death-penalty-as-grim-reaper-of-the-innocent. (Whether the media will be honest enough to report on the opposing evidence the state will produce is, of course, a different matter, but at least we should give them plenty to feel guilty about hiding).
Second, we will have helped develop the record on appeal. When Judge Fine's show trial gets reversed, we should make sure the reviewing court (or courts) have an ample factual basis in the record to write an opinion more convincing, not to mention more honest, than the lower court's judgment is likely to be.
As I say, this November hearing presents a danger -- and an opportunity.