The opponents have some significant advantages in the death penalty debate. They have nearly all of academia on their side as well as the bulk of American journalism. They can assert things as "facts" and rarely get challenged on them.
A year ago, Justice Breyer wrote a dissent in Glossip v. Gross, saying, "I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution." What follows is a recitation of all the claims that have already been rebutted but with no mention of the rebuttals.
A funny thing happens on the way to the courthouse. When these claims are asserted as a basis for a legal argument rather than an attempt to sway public opinion, then a government with the resources to do so makes the contrary case, and the claims regularly go down in flames. The Supreme Court's decision in McCleskey v. Kemp is remembered (often with outrage on the Left) for holding that even assuming that the Baldus study's finding of race-of-victim bias in capital sentencing was correct McCleskey still didn't have a claim. Nearly forgotten is the finding of fact by the Federal District Court that the study's data, when correctly analyzed, showed nothing of the sort. See my 2012 OSJCL article for the details on this and other studies in the area.
The federal capital case of United States v. Fell is now pending retrial in Vermont. The defense wants the trial judge to declare the federal death penalty unconstitutional, citing all the usual claims. The court is holding a two-week hearing this week and next to decide the underlying facts. If the government pulls out all the stops putting on evidence and if we get a fair decision, this could be a major advance for the pro-death-penalty side, with findings of fact that most of the claims cited in Justice Breyer's opinion are actually false.
Wilson Ring has this story for the Associated Press.
There is a second case in Maricopa County (Phoenix and vicinity), Arizona, where the defense has cited the infamous "innocence list" and the prosecution is putting on evidence as to just how many of the supposedly "exonerated" actually did it.
A year ago, Justice Breyer wrote a dissent in Glossip v. Gross, saying, "I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution." What follows is a recitation of all the claims that have already been rebutted but with no mention of the rebuttals.
A funny thing happens on the way to the courthouse. When these claims are asserted as a basis for a legal argument rather than an attempt to sway public opinion, then a government with the resources to do so makes the contrary case, and the claims regularly go down in flames. The Supreme Court's decision in McCleskey v. Kemp is remembered (often with outrage on the Left) for holding that even assuming that the Baldus study's finding of race-of-victim bias in capital sentencing was correct McCleskey still didn't have a claim. Nearly forgotten is the finding of fact by the Federal District Court that the study's data, when correctly analyzed, showed nothing of the sort. See my 2012 OSJCL article for the details on this and other studies in the area.
The federal capital case of United States v. Fell is now pending retrial in Vermont. The defense wants the trial judge to declare the federal death penalty unconstitutional, citing all the usual claims. The court is holding a two-week hearing this week and next to decide the underlying facts. If the government pulls out all the stops putting on evidence and if we get a fair decision, this could be a major advance for the pro-death-penalty side, with findings of fact that most of the claims cited in Justice Breyer's opinion are actually false.
Wilson Ring has this story for the Associated Press.
There is a second case in Maricopa County (Phoenix and vicinity), Arizona, where the defense has cited the infamous "innocence list" and the prosecution is putting on evidence as to just how many of the supposedly "exonerated" actually did it.
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