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Residual Doubt and the Death Penalty

Should prosecutors consider the strength of the case for guilt when deciding whether to seek the death penalty?  Should juries consider it when deciding whether to impose that sentence?

Most regular folks, when asked this question, would say "of course" and wonder how the question can even be asked.  Execution of an innocent person is the ultimate miscarriage of justice.  The quantum of evidence required for conviction is "beyond a reasonable doubt," but the reality is that evidence is a sliding scale, and there are always degrees of certainty.  Mitt Romney tried to build a higher degree of certainty into law when he pushed for restoration of capital punishment in Massachusetts.  Maryland made a ham-handed attempt at it in its narrowed death penalty law.  In most states, though, it is done informally.

The prime example is LA's Hillside Strangler.  Assuming we are going to have capital punishment at all, the Strangler most certainly deserved it.  Yet the evidence that Angelo Buono was the Strangler was just barely sufficient to convince the jury to convict him.  In the penalty phase, they brought back a life verdict in short order.  (The trial judge emphatically disagreed, but California has no override in that direction.)

In the Randy Guzek case, the Oregon Supreme Court held that residual doubt evidence was constitutionally required in a penalty retrial, but the U.S. Supreme Court unanimously reversed.

But there is a world of difference between "not constitutional required' and "constitutionally forbidden."  If an argument that X is constitutionally required can even be plausibly made, then it should be perfectly obvious that X is not forbidden.  The latitude that the constitution gives elected policy makers is not a narrow strait between Scylla and Charybdis; it is as wide as the English Channel.

Yet, incredibly, a trial judge in Seattle has held that the prosecutor acts improperly in considering the strength of the case for guilt in deciding whether to seek the death penalty, as noted in yesterday's News Scan.  The theory is that it somehow violates the right to equal treatment to consider the strength of evidence of guilt, which is neither an aggravating nor a mitigating circumstance.

Nonsense.  The starting point should be the realization that death is a just sentence for the highest degree of murder.  The question in the penalty phase is whether to let the defendant off with less than he deserves.  Mitigating circumstances are a reason for mercy.  Residual doubt is a reason not to risk a terrible mistake.  Other people who deserve a similar sentence for a similar crime can and do get off with less or get off altogether for a variety of reasons.  Some crimes are never solved.  Some criminals flee the country.  Some die before trial or pending appeal.  Stuff happens.  But the fact that full justice cannot be meted out in all cases is no reason to withhold it where there is no reason within the particular case to do so.

The King County prosecutor intends to appeal, and should.


My guess is that this jurist doesn't like the death penalty, and the decision stems from that.

"The starting point should be the realization that death is a just sentence
for the highest degree of murder."

Then the next point should be that a death sentence must be carried forth
as speedily as other just punishments.

The terminal point should be that death is a just sentence for every murder,
since the deliberate killing of an innocent is inherently beyond an aggravating factor.


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