Death Penalty Second Thoughts

As a former supporter of the death penalty that has come around strongly in opposition, I enjoyed this piece featuring a former prosecutor trying to apologize for falsely sending a man to death row.  I loved this line in particular

No one should be given the ability to impose a sentence of death in any criminal proceeding. We are simply incapable of devising a system that can fairly and impartially impose a sentence of death because we are all fallible human beings.

I consider the notion of whether the death penalty is humane or whether we have the moral right to take the life of someone who is guilty of murder to both be red herrings.  The key issue for me is that we can't do it fairly and without errors.  The appeals process is useful, but can't ever be perfect because often the appeals occur in the same time and place as the trial.  Appeals of a black man in 1965 were not of much use, just as appeals of wrongly-convicted day care workers were not of much use in the 1980s and 1990s day care sex scares (even today, Martha Coakely bends over backwards to keep innocent people in jail).  Public choice theory tells us government officials have incentives that are different from mere "public service", and we can see that in spades in this prosecutor's mea culpa.

By the way, we can see similar incentives at work in the Jodi Arias trial, where a lot of public hatred was aimed at the one juror who refused to sentence Arias to death.  You read in this and other stories that the other 11 jurors were truly angry that they were not allowed to kill her.

The Arias trial also illustrates another issue -- there is a huge gender bias in death sentences.  It doesn't get much press, because it hurts men rather than women, but it is really really really hard for a woman to get sentenced to death.


  1. ECM:

    OK, so, if we can't ever be sure, then why have punishment at all? After all, mistakes might be made, and if we can't trust the appeals process...

  2. TeeJaw:

    Hard cases make bad laws. We need the death penalty for the most aggravated and depraved murder cases. Keeping such criminals alive in a cage for decades is crazy. The answer to prosecutors like Martha Coakely is to strip all prosecutors of absolute immunity because it's an unwise judge-made doctrine that has been much abused. While innocent people have served long prison sentences no innocent person has ever been executed, probably because of the heightened due process that attends capital cases.

  3. Incunabulum:

    Pleading out for a life sentence is *not* deterrence. It doesn't *stop* anyone from commiting a capital crime, only incentivizes rolling over for the prosecution - whether or not you're guilty.

  4. Incunabulum:

    At least with other sentences you can do *something* to correct mistakes. Release from jail, compensation, etc.

    Once you're dead, there's no coming back from that.

  5. TeeJaw:

    You’d have a point if innocent people were being executed but it isn’t happening. A lot of innocent people are being murdered though.

  6. Chris:

    how do you know innocent people aren't being executed?

  7. TeeJaw:

    If there were even one case we would all know about it, you can have no doubt. I’m aware of the great work the Innocence Project does, and while there have been innocent people on death row none have been executed and all that we know about have had their convictions overturned, been released and compensated. There will likely be more, and I hope they are also reprieved. It’s not a reason to oppose the death penalty. Demanding absolute perfection is not justice.

  8. Chris:

    did you read that link? he was executed and pardoned after the fact. that is enough for me.
    you read this site so I'm going to assume you lean freedom, why would you possibly trust the government to get this right when they get so much else wrong?

  9. JBK:

    I don't have any evidence, but I suspect that most people would go along with replacing the death penalty with life imprisonment. If a couple of conditions were met:

    1) They would never under any circumstance be released, unless they were proved to be innocent.

    2) They were kept in such a way that they could never injure prison workers or other inmates. Knowing that you are already suffering the worst penalty that you could get for any crime removes any inhibition to keep you from killing anyone within your reach.

    As another possibility I would be happy to see these criminals interrogated under drugs or other methods such as functional MRI--after they have exhausted their appeals. This would be a final check on the system.

  10. mx:

    Exactly. "Plead guilty or we'll kill you" isn't a legitimate form of negotiation, it's threatening to kill someone if they don't do what you want. Dressing it up in a robe and legal process doesn't make it any less ugly.

  11. bigmaq1980:

    It is a popular belief that a death sentence is a deterrent.

    However, it is not likely to be much of a deterrent under the many crime scenarios in this country (historically, and currently) for which such a sentence is (was) eligible for application.

    The perps are RARELY of the mindset to ponder the pros and cons of their action.

    As another poster mentioned, if we believe the person is guilty, is there anything wrong with a life sentence with no possibility of parole? It serves the same purpose.

  12. bigmaq1980:

    Was a big believer in death sentences for those guilty of heinous crimes. After all, these people traded in their right to life once they took another, or committed something equally egregious.

    Believed, that is, until a couple of things: 1) Just the numbers of wrongful convictions that have come to light since DNA testing became available, and the back-stories of corruption and zealous railroading that went with them; 2) The personal frustrating experience in fighting even a simple traffic ticket and how cop, prosecutor and judge didn't demonstrate interest in honest or fair consideration of the case. Before this example of a prosecutor's reflection on his involvement in railroading an innocent, could definitely imagine how it can be stacked towards guilt for something much more serious, with their careers at stake.

    Another issue that has evolved with the death penalty is the cost. Many assume it is the cheaper alternative to a life sentence but they would be wrong. The extra appeals these tend to go through because it is taking a life are a significant burden that could be avoided.

  13. tex:

    “no innocent person has ever been executed”

    Cameron Todd Willingham is one. There is strong reason to believe there are others, probably many others. After an execution, there is much less effort & a smaller chance of discovery. We cannot know how many were in error, but law professors & judges studying cases are convinced it happens.

    Many exonerations were not discovered by normal appeals, but by journalists and by expert attorneys not available to most inmates. Some by Gov funded legal defense funds no longer funded.

    There are many weaknesses including incompetent attys. After evidence of defense attys sleeping through trials, failing to examine witnesses, and even drunkenness, one judge asserted: “The Constitution does not require perfection in trial representation.”

    There are time limits after which even absolute proof of innocence may not be accepted. “This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is actually innocent.” - Scalia.

    Appeals concern only trial procedural errors, not jury mistakes. Federal courts reviewing state capital cases review only constitutional violations, not new factual evidence of innocence.

    “. . . the death penalty is imposed not only in a freakish and discriminatory manner, but also in some cases upon defendants who are actually innocent.” -Justice William J. Brennan, Jr.

    Criminal trials are overwhelmingly (Federal > 90%) by plea because prosecutors offer deals you cannot refuse – plea for this or trial & risk many times worse. Atty Silverglate complains this leads to punishment for unconstitutional laws as pleas avoid judicial review.

    Your influence by horrible crimes puts innocents in greater jeopardy as the citizenry feel the same putting pressure on prosecutors & police to get the bad guy, resulting in lies & fraudulent evidence to get someone.

  14. obloodyhell:

    }}} The key issue for me is that we can't do it fairly and without errors.

    This is still bullshit.

    There are certainly cases where we KNOW a person is guilty because they themselves are not raving loonies and have admitted the actions. or been caught red-handed at it. The cases of Ted Bundy and Danny Rolling are obvious cases of this.

    Your assertion, and I don't doubt it, certainly calls for more than "reasonable doubt" in instances where the death penalty is called for, but it doesn't make for abolition of the process, only restrictions to very clearly evident circumstances.

    Mad dogs are mad dogs. Kill them as painlessly as possible, this isn't about revenge by any means -- but there's never been a case of a dead mad dog returning to life and killing again... at least, not outside of movies and tv shows....

  15. obloodyhell:

    }}} why would you possibly trust the government to get this right when they get so much else wrong?

    Because, considering the number of zealots looking to find instances of falsely convicted executions, if it was anything but an exceedingly rare case, there'd be a lot more evidence of it.

    While it probably happened A LOT more in the long past, since the 60s or 70s when the laws got changed considerably and got under much tighter scrutiny, it's a lot less likely, IMNSHO.

    }}} Demanding absolute perfection is not justice.

    As TeeJaw said...

    Letting 10 guilty men go free so that 1 innocent is not punished, sure. Letting 1000 MURDERERS go free so that one innocent is not, that's a much harder calculus. And yes, that's hyperbole for effect.

    I would be most unhappy if I were the one innocent, yes. But this does not mean I favor draconian treatment for drunk drivers, either, even if it lowers my chances of getting killed by drunk drivers enormously. There's a balance between the two extremes.

  16. CapnRusty:

    I propose that state law should allow a person to put a clause in his will, to be considered by the jury in the event he was killed by someone who was then proven guilty of first-degree murder. The clause could state the victim's preference on whether the murderer be given life in prison, or executed.

    After all, who lost the most in the transaction?

  17. tex:

    As one atty said, “We have a legal system, not a justice system.” For criminal (& civil, though off topic) actions it is a bad for innocents. Prosecutorial immunity & too strong immunity for police is only part of the problem. Crime labs are notoriously wrong. Dr. Steven Hayne was notoriously wrong in forensic testimony yet put many on death row awaiting their fate. It is not just him. Years ago the vaunted FBI crime lab was scandalized by sloppy, incorrect work with lab personnel joking about their careless work & motivated only to punch the clock waiting for retirement & generous pensions.

    After initial conviction, regardless of incompetent defense attys, prosecutorial misconduct & jury misbehavior, the courts have decided that “finality” is the criminal justice system’s main priority, not guilt or innocence. One appeals judge stated it succinctly: “I don't care if the defendant is innocent, this case has gone too long & we must bring 'finality' to it”.

    The gross incompetence of Dr. Hayne's was addressed by the 5th US Circuit Court which denied rehearing of cases on that “finality” as they said such evidence should have been brought to court during the trial – an impossibility given the legal representation available to many.

    The most important change to our Legal System is that in all legal matters between citizens & any government or its agents, Gov should pay all trial & atty fees for winning citizens. Citizens would still be at gross disadvantage because of the enormous financial disparity; however, many would be able to attain top attys especially against flagrant gov abuse knowing they would be paid in the end.

    There are many more improvements to better balance the scales of justice, too many to mention, but Gov Pays Winners is seldom mentioned.

    The result of our system, is there should be NO DEATH PENALTY including none available to any secret court as the NDAA allows.

  18. tex:

    Part of the balance and even this discussion is not about setting them "free" but rather not terminating them so that future evidence, technology, discovery of malfeasance and/or manufactured evidence or other such eventually discovered information can finally right a terrible wrong.

  19. tex:

    Certainly there are such cases & we probably agree to the well deserved fate of the Bundy's.

    The problem is trusting the gov to fairly & accurately carry only those cases to the ultimate. When reading all the inherent problems: political motives; prosecutors & police conspiring to manufacture evidence; support from incompetent crime labs including reports of sloppy & inaccurate FBI lab work and generally crime labs propensity to bias towards the prosecutors & police side; false confessions; withheld, destroyed or hidden contrary evidence; incompetent & drunk defense attys; overwhelming trial budgets of gov vs citizen; appeals courts interested only in procedural errors with no concern of actual innocence or evidence; Strict time limits (good proof there, too bad you're too late); Courts including the Supremes stating that once convicted in the first trial (which may be subject to gross error other than procedural) the primary court concern is “finality” while officially stating “innocence is no defense;” and more, I do not trust the gov to do as you wish.

    There are cases where the crimes are so heinous that a quiet, quick demise is itself unsatisfactory and some prolonged agony more deserved. However, our criminal system should be primarily to protect the innocent and us from criminals, not revenge and for reasons above I do not trust gov in revenge anyway.

    In the name of the innocent only, I prefer a Bundy rot in jail, as sometimes gov will convince the public one is a Bundy who is not. This is no sympathy for a Bundy; but to protect us, the good citizens of the nation, from doing a terrible & unalterable injustice to one of our own & their kin.

  20. mesocyclone:

    There is nothing of social significance that can be done without errors. If that is the sole argument against the death penalty, it fails, as that argument can be used against all policies, include others that have life and death consequences.

  21. Nimrod:

    One of the major arguments with capital punishment is whether or not it deters crime.

    From what I have read, executions only deter crime if they're carried out immediately rather than after 10 years of appeals and such. So if you are really serious about due process then it has little deterrence effect vs life in prison. If you're the People's government of China though you can ignore due process and just execute people immediately. (The justice system in China is less concerned about justice and more interested in statistical crime deterrence. Thus, it's more important to make a big show of punishing some criminals to frighten others away from criminal behavior than it is to make sure anyone is actually guilty. This is what you do when you can't or won't spend enough money on law enforcement or trial but still need to control crime somehow.)

    In a poor society with marginal survivability conditions, you might also find it difficult to justify the expense of imprisoning someone for life. Thus the only acceptable way to protect the population from extremely antisocial individuals might be to execute them. Otherwise you get angry people wondering why food is being consumed by such a person rather than someone more deserving.

    But if a society isn't so poor and can afford life inprisonment, and implements tremendous due process, even from an economic perspective it may be cheaper to just imprison them for life rather than pay for their decades of court process plus prison expenses during that time.

  22. TeeJaw:

    Yeah, I read it. He was not pardoned. The pardon request was denied April 3, 2014.

  23. TeeJaw:

    The claim that Cameron Todd Williamson was innocent has not been established. The posthumous pardon request was denied April 3, 2014.

  24. TeeJaw:

    I believe capital punishment is a deterrent but I also believe it is irrelevant whether or not it is a deterrent. Evil exists and needs to be dealt with. Justice is vital to a having a civilized culture. The murder victim is gone and the killer appears before us. That’s not a reason to forget the victim and sympathize with the killer. Every murder destroys an entire world of immediate and extended family, friends, co-workers, and everyone who knew the victim. Indirectly every murder has a debilitating effect on the entire society. The perpetrator of such evil deserves to be eliminated so decent people can live in peace.

  25. tex:

    Yes, without explanation or justification, in effect, "We did him in & that's our story & we're sticking to it." Perhaps you are satisfied he was guilty when the perps (or more correctly the Board of Pardons & Paroles) who could & seemly should have saved him did not.

    More like CTW is ok by you & worse the many, many other irregularities in our system.

  26. tex:

    Be rather more comforting that his execution was based upon "beyond a shadow of a doubt" rather than they didn't establish his innocence enough for you & the board that should have saved him. Even you cannot doubt there is great doubt about his guilt.

  27. Daniel Barger:

    The problem is not the system....the problem is those who control the system. LEO, DA's and judges all too often short circuit the process for their own agenda. This has transformed our legal system from one concerned with justice to one that cares only about the process of turning the wheels to grind it's victims into dust. Doesn't matter if it's a murder case or an alimony case.....justice is irrelevant. THAT is why the death penalty must be looked at closely.....but stealing 30 or 40 years of a mans life and then giving him a check to make up for it when the misconduct comes to light is no less an injustice than hanging the wrong man.....and may actually be a worse punishment. I support the death penalty in cases where the guilt of the convicted is established to a certainty....using means such as DNA, video and other TANGIBLE proof. But far too many cases go to trial based on circumstantial evidence, faulty testimony, mistaken identity and at times blatant lies and misconduct. Part of the problem is the insanity of 'qualified immunity'. As long as those who control the system rarely if ever face any meaningful punishment for their willful acts of misconduct and criminality the system is fatally flawed.

  28. Ron H.:

    Perhaps those who have suffered a loss - family, friends, etc. of a murder victim should be allowed to determine the punishment received by someone found guilty of that crime & allowed to carry out that punishment they've determined best serves justice.

    Assuming you have no personal stake in the Arias case, it's hard to imagine why you or I or anyone not directly affected should get to determine and carry out punishment, or why we should be able to assign the task to our agent the state.

  29. Nimrod:

    I agree that there's such a thing as objective evil. Mostly what it comes down to is that which negatively impacts individual and group survival.

    I agree with tex that what we have is a legal system that aspires to be a justice system, and the legal system is designed around the idea that people will behave like a lynch mob (which should be obvious from Ferguson) unless a lot of standards are put in place to prevent it. Even with all of this we have still ended up with cases in history where judge, jury, prosecutor, and police were all pretty much acting with a lynch mob groupthink mentality.

    So is it more important to appease the outraged with adequate punishment or more important to make sure that the outraged are not just a lynch mob demanding blood based on ignorant prejudice?

    In a system designed around and biased toward preventing the lynch mob from lynching the innocent just to appease mob outrage, nobody wants to execute anyone unless there's zero doubt, not just beyond reasonable doubt. Then people wonder if there's ever such a thing as zero doubt.

    It would be nice if there were a way to prove that murderers were going to hell anyway. That might alleviate some outrage when someone gets life instead of execution.

  30. Q46:

    "The key issue for me is that we can't do it fairly and without errors."

    We (Anglo-Saxons) have a one thousand year old legal tradition evolved to be fair, the fact we make errors does not make it unfair.

    In any case that premise of 'can't do it fairly and without errors' applies to any trial and sentence, ergo if abandoning one kind of penalty on these grounds is good, surely abandoning all penalties is better.

    Why in the name of 'unfair' and 'error' is it not right to execute someone but acceptable to gaol them for most or the rest of their lives?

    True once killed we cannot resurrect someone if there is new evidence, nor can we give back, for example, twenty or thirty years of someone's life who has been incarcerated: and what life can they have after that if released?

    Which is worse being hanged for a crime you did not commit or being locked up to feel the injustice every day for decades?

    There are valid reasons to argue against the death penalty, but error or occasional unfairness if it be so, are not among them.

  31. Q46:

    And once you have been in gaol for nearly all of your adult life there IS coming back from that? Really?

  32. Bram:

    I have mixed feelings on the death penalty.

    My feelings on prosecutors who hide evidence and falsely charge people they know to be innocent is unequivocal. Marty Stroud III should be doing the 30 years he cost Glen Ford.

  33. Maximum Liberty:

    The one scenario where it has historically been considered a deterrent is for a criminal who plans a crime and has to decide whether to kill the victims or witnesses. The primary rationale for the historical repeal of the death penalty for rape was to create an incentive for the rapist not to kill the victim.

  34. TeeJaw:

    I am as appalled and regretful as anyone that an innocent person should ever go to prison, much less be executed. I’d never trade an innocent life for anything in this world. After all, it’s out of respect for innocent life that I am in favor of the death penalty. I’m also aware that the opponents of the death penalty are desperate to find and prove that an innocent person has been executed. That means their claims have to be looked at carefully, and always with a bit of skepticism. The danger is that they are wanting too much to find it. I hope they never find it because I hope it never happens.

  35. Mercury:

    Executed convicts tend to have a low recidivism rate so, it's a deterrent to them...

  36. TeeJaw:

    It’s not outrage as much as it’s a sense of injustice that one who takes a life gets to keep his own. By the way, the death penalty is not presently even considered for the average murderer. It is exclusively reserved, even for consideration, only for murder with “aggravating circumstances.” Examples would be torture, extreme indifference to life, etc. The prosecutor must indicate at the outset whether he or she seeks the death penalty, and if so heightened due process procedures apply. Even after conviction and sentence a more liberal appeal process applies. This is the main reason death penalty opponents are having a hard time finding an innocent person being executed. There have been some sent to death row, that’s true. But the appeal process has so far worked to correct those mistakes.

  37. bigmaq1980:

    Ha, no doubt!

    Seriously. Talking about life without parole vs death. There is no get out of jail (and chance for recidivism) for these people who would qualify for the death penalty today, under this approach.

  38. tex:

    You seem convinced we've executed no innocents. I'm convinced we've done many because of (1) others more knowledgeable such as Brennan, et al; (2) the mechanism, e.g. appellate courts seeking procedural errors not guilt/innocence leaving that to the trial court with lax representation, evil prosecutors, police & bad forensics; (3) many found innocent were by extraordinary events (special attys, journalists) not applicable to most; and other such things.

    You assert we've no failures because you require proof beyond a reasonable doubt there has been some. I assert the mechanisms are sufficiently bad we cannot know & there is strong reason to suspect many unfound failures through the large holes.

    I don't think the problems can be fixed. Given time & resources perhaps you could design a safer system; however, it depends upon righteous people. The Communists sometimes say the failures (USSR, etc) are because the right people were not in charge. But it is a system failure because it DEPENDS upon the right people. Evidence of the natural tendency of people to act in their own interests won Economists Buchanan the Nobel.

    The politicians, DA's, judges & the entire justice system support SWAT which have unnecessarily executed innocents from children to mothers holding babies to a software exec who assumed SWAT was a home invasion (wrong address). There are so many clear cases of citizen abuse that no justice system can abide such actions and claim they are concerned with innocent life in the criminal system. Judges have written to “finality” & “closure” being more important than innocence. Known bad labs are allowed to continue and appeals rejected. Absolute immunity is a judge created privilege: gross injustice to citizens is less important than prosecutors held accountable. Judicial attitude: Better thee than we! As Buchanan found, they are in it for themselves.

    Trust in gov should be limited.

  39. mlhouse:

    It is clear that when people are on important jury trials they are very conscientious about their decision.

  40. mlhouse:

    Deterrence of One.

  41. tex:

    Clear to you. Not to me though I accept that mostly true.

    However, there have been capital cases where jurors have been found:
    (1) Sleeping during trial and/or deliberations,
    (2) Drinking during breaks,
    (3) Intoxicated,
    (4) Joking about the trial, defendant, etc,
    (5) Discussing boredom and "wanting to get this over,"
    (6) Lying about themselves, and
    (7) Probably most common, prejudice (mostly antiBlack but others as well):

    (a) After trial a juror told people he probably convicted because of race;
    (b) A juror telling others not to accept a black man's version over a white man's
    (c) One juror: I've got a rope. 2nd: I've got a tree.
    (d) Before trial a juror telling workmates he was going to hang the black defendant, and many more such.

    These cases are known because they generated retrials and sometimes initial attempts at retrial were denied. In some the judge was advised of the misconduct and refused to consider it. It is unlikely all such were discovered and among jury misconduct discovered that all resulted in retrial. Public defenders have also been found sleeping and/or drunk during trials.

    It is well known by attys that handsome/pretty people are more likely to be considered by jurors to be of higher integrity & truthfulness with a desire to please them than people who are physically unappealing. Similar with people who make a good confident & innocent looking impression vs those who are nervous & worried though being nervous & worried is normal for many under such circumstances. Much psychology is involved in allowing or not a defendant to take the stand because of jury impact rather than guilt or innocence.

  42. Incunabulum:

    So - just go ahead and kill them?

  43. Incunabulum:

    So do those imprisoned for life.

  44. joe:

    two points - First -- it is likely to be extremely rare that a truly innocent person was sentenced to death. Even if innocent of the specific crime, the person became a suspect due to something in his past that would warrant suspension. I am not implying that it justifies railroading that individual for a crime.

    The second point is the hypocrisy of being opposed to the death penalty because some innocent people may be executed, yet fully supporting abortion where every person aborted is truly innocent.

  45. Not Sure:

    "I’m also aware that the opponents of the death penalty are desperate to find and prove that an innocent person has been executed. That means their claims have to be looked at carefully, and always with a bit of skepticism. The danger is that they are wanting too much to find it."

    The same argument works against supporters of the death penalty, it would seem...

    Proponents of the death penalty are desperate to deny that an innocent person has been executed. That means their claims have to be looked at carefully, and always with a bit of skepticism. The danger is that they are wanting too much to not find it [evidence of an innocent person being executed].

  46. JBK:

    The big issue in this search for innocents is that the Social Justice Warriors are perfectly willing to lie and cheat to make a point that they want to make.

    You cannot believe anything they say.

  47. texasjimbo:

    My opposition to the death penalty arises from simply not wanting the government to have that much power. But your point is well taken. There are cases where there is no doubt about guilt.

  48. texasjimbo:

    Part of the problem with abolishing the death penalty is the fact that within a year or two of its abolition, a lot of the proponents of abolition would be using exactly the same tactics and many of the same type of arguments to call for the abolition of life in prison without parole.

  49. texasjimbo:

    You're right about that. While I favor abolition in the abstract, the behavior of the anti-death penalty movement is horrible. They are far to eager to deny/miniumize the moral cupability of murders (blame their upbringing, poverty, etc.) and the suffering of the victims. They also clearly have no respect for democracy, given the tactics they resort to despite clear majorities opposing their policy preferences. Frankly, they frequently drive me away from the anti-death penalty position.

  50. joe:

    Cameron Todd Willingham - he may or may not have been guilty. The arson investigation was faulty.

    However, there is a lot of circumstantial evidence indicating his guilt along with a lot of physical evidence even omitting the faulty arson investigation. 4 room house, 900 sq feet, a maximum distance of 25 feet from his bed to the childrens bed, He had sufficient time to put his pants on but not enough time to go 25 feet to get the kids. The start of the fire away from the natural source of any fire start location such as faulty wiring.