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A Simple Suggestion on the Death Penalty

| 23 Comments
The death penalty continues to draw significant majority support, although less so now than over the last couple of decades.  See Kent's report on the Gallup Poll, here.  It also seems safe for the indefinite future from abolition in the Supreme Court, as I noted Monday.

There was a time when abolitionists argued principally that the death penalty is immoral, because, first, the government should not be killing people, and second, there is always the risk of executing the innocent, with no going back if we make a mistake.  These arguments failed to move the needle much for at least the last 40 years, so abolitionists have turned in a different direction:  They now say the death penalty simply costs too much and takes too long.

They're right about that, of course.  It does take too long and it costs a boatload  --  because abolitionists have made sure it does, by creating dozens and dozens of manufactured procedural issues having nothing to do with guilt, innocence or moral culpability.

The problem is that abolitionists' proposed solution does not follow from their premise.
If capital punishment costs too much and takes too long, the obvious answer  --  an answer adopted by California voters a year ago  --  is to make it cost less and go faster, while still allowing ample time for the courts to consider any serious claim.

But wait.  There's an even more obvious answer.

If the problem is cost and delay, the solution is hardly to outlaw the death penalty for all time and in any circumstances.  That would be the answer if the death penalty were immoral, not if it's become merely impractical.  If it's impractical, then  --  hello!  --  keep it around but don't use it very much.  

Taking it off the books for always and ever just makes no sense.  Why should the public deprive itself, on present impracticality grounds, of ever being able to use the death penalty, when practicalities might change, and/or when we see a case (like the Boston Marathon murders, the Charleston racist church massacre, or the recent Jihadist atrocity in New York) in which society has powerful grounds to conclude that we will bear even great expense, delay and practical hurdles in the name of imposing the only punishment that comes close to fitting the crime?

As the public has perhaps unconsciously concluded in this time of relatively low murder rates, the answer on the death penalty is clear:  Keep it on a high shelf, but a shelf we still can reach when bloodsoaked evil snarls at us from close range.

23 Comments

You just don't get it, do you, Bill? When the death penalty was applied to a wide variety of murders, that was just terrible, and it was imperative that we use limit its use to the "worst of the worst."

Now that prosecutors and juries are being more selective, using it only for the "worst of the worst," that is evidence that the death penalty is dying.

Guilty as charged, your Honor. As my colleagues will tell you, I've spent decades being this obtuse.

This is the same group that was howling for years that we need to get rid of hanging/gas chamber/electric chair and adopt the more humane alternative of lethal injection -- except that now lethal injection has turned out to be an unspeakable affront to the Eighth Amendment.

You gotta love it.

The problem with this approach, as with so many other things, is the details. What crimes, exactly, qualify as "high shelf" crimes? Each of the specific crimes you listed involved multiple murders. If you want to limit the death penalty only to multiple murder situations, that would be worth discussing. But I'm sure that you'd want the death penalty for other categories of murders - murder of a police officer, for example, or torture-murder. And once you have those, the obvious next step is having the DP for robbery-murder, or murder for hire, or murder for financial gain, or murder of a child. And then you're back where you started. My point is only that abstract concepts like death penalty only for "worst of the worst" often get derailed in the real world.

- Victor

I have long said that many, if not most, problems with the death penalty could and would be resolved if/when a jurisdiction were to limit it to cases of multiple purposeful murders (at one time or over time).

Of course we can, and do, have reasonable debates about which crimes should be death eligible. My post is more modest than to seek to resolve that.

My point is limited: Abolitionists say principally that we should OUTLAW the death penalty on the practical grounds that it takes too long and costs too much. But that argument makes no sense. The argument justifies using the DP infrequently, sure, but it cannot possibly justify legally forbidding its use ever, ever no matter what the practical difficulties may be (or may not be) and no matter what the crime.

Can't be done. It's a one-size-fits-all solution when we know here and now that there are lots more than one size -- and the future will bring yet more.

Victor, in my experience it works in the real world. In some of the old ones you come across cases where you wonder why this case was chosen for the death penalty. In cases tried from the 90s forward, though, in those that I have personally worked on I can't think of a single one where the death penalty was imposed that was not an aggravated case where it was warranted.

If we repealed the robbery-murder special circumstance in California (the most often criticized) it would barely change a thing. I looked at a sample of cases decided by the California Supreme Court in a recent period, and there was only one case where that circumstance alone made the defendant death-eligible. The most common qualifying circumstances were multiple and prior murders.

Doug, in cases where a person is proved on independent evidence to have committed premeditated murder on separate occasions, I think we should have a mandatory death sentence.

The chance of a person being wrongly convicted twice is infinitesimal. The probability of two independent events is the product of their separate probabilities. Tiny times tiny equals microscopic.

This aggravating circumstance outweighs any mitigation (other than disqualifying circumstances) to such a high degree of likelihood that we can leave any remainder to executive clemency.

With a mandatory sentence, all the years and expense that we presently spend going over and over and over and over the penalty phase would just vanish.

We can't limit the death penalty to just this circumstance, though. Nor could I agree to your suggestion. A person who rapes, tortures, and murders a child, for example, definitely needs to be sentenced to death, even for one.

Decencyevolves: Executing schizophrenic and seriously brain damaged inmates who can still form the intent to premeditate strikes me as pretty awful, even if they’ve killed more than one person. The idea of a mandatory death penalty for such people strikes me as fundamentally cruel and wrongheaded. It is a large part of the reason why I’ll be in the other side of these cases for the rest of my career.

Kent—in your brief in Panetti you wrote, “But for Faretta, Panetti might have been represented by counsel who could have made a compelling case that his schizophrenia was a potent mitigating circumstance, rather than the obviously bogus alternate personality defense that Panetti himself presented.” However, if there were a mandatory death sentence, Panetti could have made no case in mitigation at all, with our without counsel. Does that really seem like their right result to you?

It seems to me that your comment at 5:37 underscores my view that opposition to the DP is, in fact, not about capital punishment's supposed impracticality, but instead bespeaks a deeply-rooted, never-to-change ideology.

You are hardly alone in that, for sure. But again, the point I want to make is that opposition to the DP runs much deeper than its "let's-be-practical" adherents have led us to believe.

I appreciate your illuminating candor.

Bill took pride in the sobriquet “Mr. Death Penalty” when the Atlantic described Kent as such. http://www.crimeandconsequences.com/crimblog/2014/09/mr-death-penalty.html

The fact that capital habeas attorneys are equally committed to their profession shouldn’t come as a surprise to anyone.

"Mr. Death Penalty" refers to being a supporter of and spokesman for the death penalty, not -- as the Atlantic article makes clear -- supporting it in every case all the time, which I do not and Kent does not.

By contrast, you oppose the death penalty in every case all the time.

So Kent and I have a differentiated, fact-based approach to this punishment, while you have an approach that walks past the facts to honor an ideology instead.

Many thoughtful people are with you in that for sure, but the two approaches are very, very different.

I’m still curious about Kent’s thoughts and whether he’s serious about a mandatory death penalty for schizophrenic and seriously brain damaged defendants convicted of multiple murder. Does he really feel that it would be desirable to have a system where Scott Panetti, even if represented by counsel, would have had no opportunity to present mitigating evidence and seek a life sentence following conviction?

Kent hardly needs me to speak for him (nor do I have portfolio to do so), but I do have a question on my own:

Why does the prospect that Scott Panetti might not deserve the death penalty mean that a jury should not even be able to consider it, ever, for Timothy McVeigh?

This just mystifies me.

DE: I do not favor a mandatory death sentence in cases like Panetti's, and my proposal obviously would not apply to that case.

First, Panetti only killed on one occasion.

Second, there was no finding of premeditation, and on the facts of the case the killings do not appear to be premeditated. The word "premeditated" does not appear in the homicide chapter of the Texas Penal Code, BTW.

I do not care for the title of the National Journal/Atlantic article.

I’m curious about this Kent. To extend the hypothetical a bit further, would you think as a matter of policy that Texas should have precluded any evidence of Panetti’s schizophrenia in mitigation if: (1) Panetti had committed these two murders on two different days, and (2) Texas required and found premeditation in his case?

Victor,

"My point is only that abstract concepts like death penalty only for 'worst of the worst' often get derailed in the real world."

I do not favor the DP only for the "worst of the worst," even if that phrase admitted of an objective definition, which it does not. I favor the DP when it's the only punishment that fits the crime, and that takes in a great deal more than the "worst of the worst," however that might be defined.

P.S. Not that you would favor the DP for anyone ever, correct? Did you favor it for McVeigh? Didn't think so. So trotting off into the supposed mystic difficulties of designating the "worst of the worst" turns out -- as abolitionist arguments often do -- to be a makeweight, designed to obscure what is actually a visceral opposition to the DP, the facts of the case being of no consequence.

Doug,

"I have long said that many, if not most, problems with the death penalty could and would be resolved if/when a jurisdiction were to limit it to cases of multiple purposeful murders (at one time or over time)."

I've been around the track too many times to fall for that one. If we adopted your suggestion, it would take three milliseconds for abolitionists to argue, "Oh, hey, look, the DP is used so seldom and for such a tiny segment of cases as to show that the country has turned against it, therefore it should be abolished entirely."

Of course it takes no great imagination for me to outline that argument, since abolitionists have been making it for decades in light of the many limitations we ALREADY have on capital punishment, cf. Justice Kennedy's opinion in Kennedy v. Louisiana.

P.S. This is not to mention the underlying substantive problem with your suggestion, to wit, that there are many murders of "merely" one person that fully warrant execution. There are, for example, instances of the sex/torture/murder of a child. That the DP should be allowed to be considered by the jury for such behavior, even if "only" done once, is, to me, too obvious for argument.

Bill - Sorry if I misunderstood your post. I guess I don't understand what the "high shelf" you mention would look like in the real world, and your response hasn't cleared that up. Can you elaborate on when it's "the only punishment that fits the crime"? Is it multiple murders? Robbery-murders? Any murder committed in the commission of a felony?

My point was, and is, that the premise of your post - which, as I understood it, was that the death penalty should be used sparingly ("keep it around but don't use it very much") - is fine in the abstract but fails in the real world. Nothing you've said so far shows otherwise. Without any definition, it's just "I know it when I see it," and I don't think we can build a workable death penalty regime on that foundation.

While my personal views on the DP are completely irrelevant to your post and the questions I have about it, I do not favor the DP as currently administered in the US but I'm not against it in principle.

- Victor

Victor,

As I was saying in another comment, I've been around this track many times.

-- "I don't understand what the 'high shelf' you mention would look like in the real world..."

That's because "high shelf" is metaphorical language, and doesn't "look like" anything.

-- "My point was, and is, that the premise of your post - which, as I understood it, was that the death penalty should be used sparingly ('keep it around but don't use it very much') - is fine in the abstract but fails in the real world."

What do you mean by the assertion that it "fails?" The majority of states have it; the Supreme Court approves it; the public supports it; and it's being used more this year than last. Some failure!

-- "Without any definition, it's just 'I know it when I see it,' and I don't think we can build a workable death penalty regime on that foundation."

What do you mean by "workable?" And, largely at the insistence of DP skeptics, the law accepts a degree of subjectivity, which is why we have jury determinations of when to impose the DP.

-- "While my personal views on the DP are completely irrelevant to your post and the questions I have about it..."

How can your views be irrelevant to your questions?

"...I do not favor the DP as currently administered in the US but I'm not against it in principle."

Translation: I'm for executions as long as we never have any.

As I say, I've been around this track before. When you're against the DP "as currently administered in the US," and also against it as ever administered ANYWHERE EVER (which you are, correct?), then you are against it, period.

P.S. Being in favor of federalism (which is much touted in the drug legalization context), I'm happy to leave it to each state to decide which and how many aggravating factors make a crime death-eligible in that state.

Decencyevolves: From my point of view, having a mandatory death penalty without any possible consideration of serious mental illness for someone like Panetti rest on such minor distinctions—two murders in two incidents rather than two in a single incident and whether Texas law requires a finding of premeditation or does not—would be exceptionally cruel and arbitrary.

In fairness, while I admittedly oppose the death penalty as a general matter, the execution of schizophrenic defendants strikes me as particularly repellent anyway.

Once more, with feeling, my proposal is not "for someone like Panetti." You may consider killing once versus twice to be a minor distinction, but I do not. My comment about Texas law was merely an aside. The point was that Panetti was never found to have committed premeditated murder at all, and on the facts of the case it does not appear to be a case of premeditated murder.

Bill,

"What do you mean by the assertion that it 'fails?' The majority of states have it; the Supreme Court approves it; the public supports it; and it's being used more this year than last. Some failure!"

By "it fails" I meant your "simple suggestion on the death penalty," i.e., the premise of your post, not the death penalty itself. Sorry if that wasn't clear from the context.

I get that your "high shelf" language was metaphorical. That's exactly my point. Without more definition, your "simple suggestion on the death penalty" is meaningless.

Later, you say "I'm happy to leave it to each state to decide which and how many aggravating factors make a crime death-eligible in that state." This suggests that your "simple solution" is to leave things exactly the way they are now. That's one solution, I guess! Again, I'm afraid I misunderstood your post as suggesting a different approach, rather than the status quo.

My personal feelings about the DP are irrelevant because they have nothing to do with my questions about your "simple solution." But no, I don't have a blanket objection to all executions anywhere. There are certain endemic problems with the current system that I find especially troubling; the large number of exonerations, for example, suggest an unacceptable risk of executing an innocent person.

As always, thanks for the enlightening discussion.

- Victor

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