TheAgitator.com
American Law Institute Shifts Course on the Death Penalty
Tuesday, January 5th, 2010Citing “the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment,” the American Law Institute has retracted its guidelines for administration of the death penalty in the United States.
Adam Liptak argues in the New York Times that this may have been the most important death penalty story of 2009. The organization of 4,000 judges, lawyers, and academics essentially provided the scholarly heft behind the Supreme Court’s reinstatement of the death penalty 30 years ago.
In 1962, as part of the Model Penal Code, the institute created the modern framework for the death penalty, one the Supreme Court largely adopted when it reinstituted capital punishment in Gregg v. Georgia in 1976. Several justices cited the standards the institute had developed as a model to be emulated by the states…
A study commissioned by the institute said that decades of experience had proved that the system could not reconcile the twin goals of individualized decisions about who should be executed and systemic fairness. It added that capital punishment was plagued by racial disparities; was enormously expensive even as many defense lawyers were underpaid and some were incompetent; risked executing innocent people; and was undermined by the politics that come with judicial elections.
I strongly believe that the death penalty is appropriate and just for certain heinous crimes.
As soon as the systemic inadequacies in the administration of “justice” in the US are addressed and solved, I’ll start supporting it as a punishment.
Until then, count me out.
@J Sub D
No matter how well we administer justice in the US, I believe (hope) we will always be striving for a more just system. So, under that premise, waiting for more justice in the system effectively eliminates the death penalty altogether since-again this is aspirational-we’ll always be looking to improve.
Even Texas is cutting back now that there is a “life without parole” option. Still way out in the lead though.
I cannot support the death penalty. Firstly, it’s been proven to not have any detering effect. Secondly, it’s an archaic form of punishment intended to give a false sense of justice to the victim. Also, it has become too much of a political hot button and, thus, has become too politicized to be of any good to society.
I understand that keeping a person incarcerated for life is expensive, but it seems like the death penalty is quite expensive, too. Think of all the man hours spent by lawyers, judges, prosecutors, people on both sides of the issue, and executive staff looking in on each case.
Now, I’m not saying that it should be banned (it’s the same as abortion, AFAIC). It should be left up to each state to decide if they want it or not. However, I cannot support it (again, just like abortion).
@ Jon -
I’m not asking for nor expecting perfection in the administration of justice. I am demanding basic competence before I’ll give the presently dysfuctional system the power of life and death over individuals who are overwhelmingly poor and socially marginalized.
It would seem like this is quite an embarrassment for those states that continue capital punishment. Outside of my libertarian friends, I know of practically no one who is against the death penalty.
I am against it because government is too incompetent an organization to apply it with reliability and fairness, but I also view certain horrendous crimes as something like an act of war, in that once you commit such an act, you have voluntarily relinquished your right to live among the rest of us.
With an effective justice system, I could conceive of cases where I would support the death penalty, but given the vacuum of credibility and ever worsening corruption of our current system, a declaration of guilt is no longer a reliable determinant that someone actually committed a crime in the traditional sense of the word. If it’s unreliable for non-capital crimes, then it can’t be relied upon for capital crimes.
Until you can 100% ENSURE, without ANY doubt, that every person on death row is guilty, then I don’t see how execution could even be an option. “Beyond a reasonable doubt” simply isn’t good enough for me when it comes to life & death. When the State kills, it kills in the name of the people, and an innocent person being killed by the State makes me a murderer.
I cannot support the death penalty, period.
I don’t care how horrible the crime is. There are no ‘special crimes’ that require that level of special handling. There is no ‘level of evidence’ outside of an overly fertile imagination that can support it.
Arguments like “well, what if the murderer was videotaped murdering and eating children while doing a DNA test on himself?” are specious and either naive or misleading (depending on the person making the argument).
You have doubts about Nicolae Ceauşescu’s guilt? That he deserved that firing squad?
Yes, sometimes there is no friggin’ doubt that somebody has committed capital crimes that warrant the death penalty.
I’m still against our system imposing it.
@J Sub D
As many flaws as the system has, it’d be hard to argue that there’s not basic competence. One innocent person in jail is too many, yes, but the jails and prisons of the company aren’t teeming with masses of the innocent. There are definitely people in prison for things that shouldn’t be crimes, but they’re certainly not all innocent–or even mostly innocent.
@Nando
There are numerous schools of thought on criminal punishment–only one is deterrence. And even that has different divisions within it.
Agreed with Kristen. I don’t have a philosophical problem with the death penalty as long as there is an absolute zero percent possibility of an innocent person ever being executed. Otherwise, the risk is simply unacceptable to me.
My opinion’s about where J sub D’s is. I think there are beings that, through their actions, have forfeited any right to live with human beings. And given that there is no prospect for Coventry or such on the planet, the human race is better off with those people literally destroyed.
However, this system we have can’t guarantee that it’s 100% accurate in selecting those people without selecting others who have not committed those acts. Therefore, I can’t support any system we have so far devised using the death penalty.
“As many flaws as the system has, it’d be hard to argue that there’s not basic competence. One innocent person in jail is too many, yes, but the jails and prisons of the company aren’t teeming with masses of the innocent.”
One caveat is that the crimes most likely to be death penalty cases are also the ones in which the police/prosecutors will probably be under the most pressure to solve the case. A prosecutor can easily decide to pass on a slightly iffy burglary case, but he’s under a lot more pressure for the brutal murder of a photogenic child.
Normally I think our distributed system of justice is wise, because being local makes officials responsive. I wonder if death penalty cases should instead be handled by a national office which would be better able to soberly weigh the merits.
“I don’t care how horrible the crime is. There are no ’special crimes’ that require that level of special handling. There is no ‘level of evidence’ outside of an overly fertile imagination that can support it.”
One can say that no crime merits capital punishment for philosophical reasons, but the guilt of e.g. Stalin, Hitler, or the commandant of Auschwitz seems pretty certain.
That’s ~ 0.5% of all death row inmates in the United States. Mind you, these are only the exonerations conclusively proven by DNA testing, not all of those who are actually innocent as many crimes don’t have DNA evidence to test and not all that do have been tested.
That most people serving time for crimes against people or property are guilty is small consolation for the innocents that are viewed by DAs and LEOs as nothing more than trophies.
That sort of error rate would cost a doctor his license to practice medicine.
Like most (it seems) on here I am not opposed to the concept of a death penalty I am just too uncomfortable with the way the process is currently executed (ha – get it?) in most states. Actually all states. The problem is that the focus is almost solely on the heinousness of the crime as opposed to the volume of evidence. I’d be more likely to support the death penalty if a certain level of forensic evidence is reached. Real forensic evidence of course, not Hayne/West junk science. If heinousness of crime + 99.99999% DNA match + 99.999% fingerprint match + whatever else = agreed upon death penalty hurdle ‘X’ then I might be persuaded.
The nice bonus about this fantasy scenario is that DA’s would have to explain that the death penalty is not being sought in a particular case because the evidence does not add up the “death penalty hurdle.” Which may get some people wondering if the evidence adds up to a guilty verdict. Which may get more people scrutinizing how flimsy prosecution evidence often is.
Holy crap I just fixed the criminal justice system!
I fully whole heartedly support the death penalty . . . for politicians and other state agents/actors only.
@Sub J D
I do think we should strive for more fairness and DNA evidence helps that. However, I don’t think a certain percentage holds true to the idea of what “beyond a reasonable doubt” means. It’s purposefully not put into a certain percentage and should be kept that way. Defense counsel should be, and I believe generally is, allowed to use exonerations as a way to undercut the evidence presented by the state. I think what your argument needs for strength, and it’s a good argument as it is, is that the state killing someone is wrong at all points, not just that it’s wrong if the state doesn’t reach a certain threshold of accuracy.
As an aside on mathematics, you’re dividing 17 exonerations by the approximately 2,000 people currently on death row. You should actually divide 17 by all the people who have been on death row since 1989, the date of the first exoneration.
J sub D:
“You have doubts about Nicolae Ceauşescu’s guilt? That he deserved that firing squad? ”
I don’t care if he was videotaped eating children and eyewitnessed by the Nobel board. Arguments that HE is worthy of the death penalty because of some special heinousness / evidence are either naive or misleading.
Naive argument: Naively believing that allowing ‘special’ rules for executions will only be used by people with similar views.
Misleading argument: Manipulating naive people to allow executions under the belief that executing as many undesirables as possible is the best solution.
Don’t be naive! Any rule put in place that way will be manipulated to allow the greatest number of executions. Do you think for a second that an unscrupulous and / or bigoted prosecutor won’t manipulate the evidence to qualify the defendant for capitol punishment if at all possible?
@Bob
While the baby-eating-DNA-sampling-psychopath scenarios and the such are not particularly useful on a day-to-day level, calling them naive diminishes their real value–making someone state whether they’re against the death penalty, or just don’t want it to be used very often.
I have no problem with killing someone who is clearly guilty of heinous atrocities, like mass murder or child rape/murder.
I oppose any government imposing a death penalty.
Most arguments about “vigilante justice” and the “rule of law” are based upon ignorance and upside-down logic. Laws are written by a privileged class of people, who most often write them to serve their ends rather than to implement a rational form of justice. So “rule of law” is “rule by the privileged” and deserves no special respect. See Thoreau’s On Civil Disobedience for a start and spare me any idiotic arguments which argue that anyone is obliged to obey an immoral law until it is changed, or that one is required to be a pathetic martyr and grovel in sacrifice to justify disobeying bad laws (a common brain-dead opinion of the law-and-order types).
People who do not act under color of law are more readily held accountable if they screw up. Any reader of this blog should know that having a badge or office doesn’t make one more honest or unbiased, but often allows the corrupt to avoid accountability. A so-called “vigilante” is far less dangerous to the innocent than a corrupt cop or a corrupt DA.
@Steve Jean
So, you’re advocating death-by-vigilante? Or vigilante justice in general?
Outside of my libertarian friends, I know of practically no one who is against the death penalty.
FWIW I don’t know any liberals who aren’t against it.
Did I ever opine that the government could be trusted with the death penalty? That the government could apply it fairly and not abuse it? I’ve merely stated that there are crimes that the appropriate and just punishment is death.
Not by the typical definition of “vigilante.” If I heard that some guy I never knew raped and killed some child I never knew, I don’t think it would likely be my place to punish the guy. Typically, a “vigilante” is portrayed as being such a stranger deciding to inflict punishment, on his own terms, when he isn’t directly involved. If you accept the notion that the government represents “the people” (i.e., all of the people)–which is preposterous on its face but widely accepted–then by extension, you are responsible when the government harms innocents, which would make you a “vigilante-by-proxy” would it not?
On the other hand, the child’s father and uncle are victims who have a vested interest in the matter. I would have no objection if they caught the perpetrator in flagrante delicto, tied him up, put him on his knees, and shot him in the back of the head. I wouldn’t call them “vigilantes” because they are not strangers arbitrarily enforcing their rules.
Like I said, it’s easier for individuals not acting under the color of law to be held accountable. If the father and uncle happened to kill the wrong guy (e.g., Mystic River), or kill innocents (like burning the guy’s house down with his family inside), they ought to be held accountable.
Again, when agents of the state get the wrong guy or harm innocents, they are almost never held accountable, so I fail to see how the “rule of law” is ethically superior to individuals who have a vested interest taking matters into their own hands, with the full realization that those individuals may be held accountable if they get it wrong.
As an aside on mathematics, you’re dividing 17 exonerations by the approximately 2,000 people currently on death row. You should actually divide 17 by all the people who have been on death row since 1989, the date of the first exoneration.
You’re right. Lets just go with the percentage of death sentences overturned for any reason, shall we?
Death Sentences Being Overturned in 2 of 3 Appeals
As I said to start this whole thing off, “systemic inadequacies in the administration of “justice” “.
First, how would you ever know if the wrong person was killed? Would the government continue the investigation despite an apparently obvious suspect being deceased? The defense counsel for any newly accused parties would have a cake walk of a closing argument.
Second, I personally think everyone is afforded due process and what you propose is not that. I feel pretty safely in the majority not supporting that idea of justice.
The justice system is flawed, but that’s irrelevant. You can’t bring the dead back to life. Also irrelevant. The death penalty doesn’t provide a real deterrent. Who cares?
I could never support the death penalty because I know that government will always abuse any and every power it can get its grubby hands on. Allowing the government the power to kill is simply insane.
Government is incompetent. So incompetent, that a prosecution team could some how manage to fuck up the case against Hitler so he could go free. We can’t trust these boobs to kill the right people, no matter what.
Indisputable evidence is subjective. Indisputable evidence is what put innocent people on death row as mentioned above. I don’t see how really…like really, totally and awesome badass indisputable evidence will suddenly be less subjective and not result in accidental murders by the state. Video and voice recordings can be doctored, lab technicians fuck up DNA work all the time (probably the ballistics people too), and evidence can flat out be fabricated by bite mark analysts.
The state can fabricate any evidence it wants…
An eye for an eye does not leave the whole world blind, it brings justice.
I think that the death penalty is so popular is because it is the only thing that gives our justice system any teeth. People are tired of guilty people going free just cause they have an expensive lawyer.
I think I’m the lone voice here who would favor MUCH GREATER use of the death penalty. I understand that innocent folks have been exonerated because of DNA evidence that’s been discovered, so why not just make DNA evidence required for punishment by death penalty? And then let the victim’s family choose: hanging, firing squad, or lethal injection.
I do not want to pay for these animals to live out the rest of their worthless lives on the taxpayer’s dime, and I sure as hell don’t want them released, so let’s just call it a day and get rid of them.
The Ceauşescu argument is an interesting one (and I say this having my family tree significantly smaller because of him). But I don’t think it applies to the US.
Killing is appropriate in some situations, but none of those situations involve the criminal justice system of a civil society. In a wartime situation it is wholly appropriate to shoot and kill enemy soldiers.
Further, I’d say in a situation where you lack a stable civil society, use of the death penalty for the most severe of crimes actually becomes more appropriate. In the US, we don’t expect that the State or Federal prison systems will cease to function over the course of an inmate’s lifetime. In the case of post-revolutionary Romania, and particularly in the case of a former political leader who might try to take over the country again, this expectation isn’t strong enough to justify a prison sentence. If the only option had been to put Noriega in a Panamanian prison, I am not sure I’d have preferred that to killing him, though the option of a US prison is better than those two from a standpoint of effecting punishment without resorting to shooting.
Ceauşescu’s dictatorship meant that he had destroyed the kind of stable and (basically) fair court and prison system needed to give an option other than execution. It is heinous, but it simply doesn’t apply to the US.
#24, see Dexter TV show on Showtime (based on book series).
http://en.wikipedia.org/wiki/Dexter_%28TV_series%29
Vigilante justice done in an acceptable way.
How does one know if the right person is punished in any situation? Evidence. Reason.
If someone breaks into my home coming after me with a knife and I shoot him dead, how did I know I killed the right guy? Unless I’m prone to hallucinations, it should be obvious. Notice that in the example of the father and uncle executing a child rapist and murderer I said they caught him in flagrante delicto. In other situations which are not so cut-and-dry, if you’re going to take action, it’s your responsibility to see to it that you’re not harming an innocent party. If you aren’t sure if the guy you find is innocent or guilty, you shouldn’t do harm to him. Each situation will be unique.
Agents of the government would likely arrest the father and uncle, charging them with murder. They typically presume that they have a monopoly on such things and non-privileged subjects daring to challenge their presumed authority causes them all kinds of indigestion.
If I were on a jury, I’d never convict, but even then, the government has found ways to rig trials so that jury members don’t know all the facts, or it intimidates jury members with dire threats and such.
Hence, my objection to government meting out death (along with many other punishments and absurd mandatory sentences, zero tolerance, three strikes, and such).
False. I’m not “proposing” anything, but merely offering my ethical judgment of the act of killing someone guilty of a monstrous act, giving some simplistic examples to illustrate the point. I’m not suggesting a set of rules individuals must follow. On the contrary, it isn’t up to me to make the decision if I’m not involved. I won’t presume to dictate to the father and uncle what they can or can’t do, or what they ought to do. That’s their decision and they are responsible for it. Hopefully, they will be held accountable if they screw up.
I don’t have any faith in majorities. That’s how we got where we are now.
Reason trumps mob opinion.
This is such a fragile topic. But in my opinion, I’d just get rid of it, throw people in jail for the rest of their life. No need to take their life.
I think our distributed system of justice is wise, because being local makes officials responsive. I wonder if death penalty cases should instead be handled by a national office which would be better able to soberly weigh the merits.
Well I am against it because government is too incompetent an organization to apply it with reliability and fairness.
I personally think everyone is afforded due process and what you propose is not that. I feel pretty safely in the majority not supporting that idea of justice.
The death penalty will undoubtedly die, even here, but not because the members of the ALI have finally acknowledged the obvious.
I think it’s your responsibility to see to it that you’re not harming an innocent party. If you aren’t sure if the guy you find is innocent or guilty, you shouldn’t do harm to him. Each situation will be unique.