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Kevin Fine Meets Reality

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Judge Kevin Fine in Texas had been conducting a hearing in a capital case, in which his aim  --  obvious to any fair-minded observer  --  was to declare the death penalty unconstitutional as too likely to result in the execution of an innocent person.

It was a novel theory to start with, since (1) no court or any other neutral body has determined that a single innocent person has been executed in at least 50 years; (2) even were it otherwise, the only relevant question before Judge Fine was whether the particular defendant before him was innocent; and (3) the weighing of the benefits of capital punishment versus its dangers is the quintessential legislative task, not a job for the judiciary.  The at least theoretical risk of executing an innocent person has been known since the death penalty was invented, and now, in the era of super due process, is less than ever.  The real risk, as followers of this blog know, is not that we execute innocent people but that we so often fail to execute guilty ones, leading, when they continue their lethal behavior, to the moral abomination of preventable murder.

Well, good news.  The highest criminal court in Texas, which initially called a temporary halt to Judge Fine's abolitionist carnival, has put it permanently out of business, as recounted in this story.

Congratulations to the Houston prosecutors for their excellent work.

[Editor's Note:  The CCA majority opinion is here.  I will post a link to the dissent when I find it. -- KS]

UPDATE:  It seems there is no dissenting opinion.  This makes perfect sense.  What in the world would it say?

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