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Why do we put people to death?

November 11, 2011

2. Law, 7. Post-Trial

Why do we put people to death?

For the same reason we neuter cats.  Next.

Look at the Constitution’s Due Process and Cruel and Unusual Clauses.

  • 5th – nor be deprived of life, liberty, or property, without due process of law
  • 8th – nor cruel and unusual punishments inflicted

We want two things – a sentence that meets the crime, and a procedure of arriving at and applying that sentence that is appropriate.  This brings two things to the table – substance and procedure.  We need both in the law.  We can’t give someone 20 years in prison because they drove over the speed limit on an otherwise empty country road, nor can we skip over a trial because the person is “obviously guilty.”

And the two overlap in another way.  Consider this:  If you follow the exact procedure set up in the law and the end result discriminates, then you have to recognize that discrimination – it’s the substantive view, and to hell with procedure.  You need to recognize that the very best procedure, as applied, can result in an unfair result.  You can’t ignore the substance of the result merely because you can’t find a flaw in the procedure.

You see how easy it is to get enmeshed when talking about the death penalty?

So the first thing we need to do is set up a procedure that is designed, even over-designed, to take everything into consideration when determining guilt and thereafter the punishment.  Then we need a procedure to administer the punishment that is – to pick a word – humane.  And then we need to step back and make sure the death penalty isn’t being applied in a substantively offensive manner – white guys never get it, black guys always do, for example (although abstract statistics are not enough).

Let me drift a bit to give you a law which is ripe for misuse – involuntary confinements in psych wards.  Here’s the full chapter TOC, from which I pulled these sections from 5100.85:

  • (1) The application of the standards in section 301 of the act, for emergency commitment, including the requirement of overt behavior, shall be based at least upon the following factors:
  • (i) There is a definite need for mental health intervention without delay to assist a person on an emergency basis;
  • (ii) The clear and present danger is so imminent that mental health intervention without delay is required to prevent injury or harm from occurring;
  • (iii) There is reasonable probability that if intervention is unduly delayed the severity of the clear and present danger will increase; or
  • (iv) There is reasonable probability that the person, with his presently available supports, cannot continue to adequately meet his own needs if mental health intervention is unduly delayed.

There’s a procedure to follow, and then you decide into which clause from (i) through (iv) the person fits.  The prize?  You get to put the person in a mental hospital involuntarily!  Do you notice the problem in the above “standards”?  I grant you that (i) seems based upon observable fact (albeit someone’s opinion of how to interpret those facts), but (ii), (iii), and (iv) require the observer to predict the future.  I don’t give a damn about the happy procedures they have in place, the final tick of the procedure and therefore the substance is that some soothsayer is going to put a person behind locked doors with no shoelaces based upon a guess of future events.  That’s rather archaic.  May as well bring in a deck of Tarot cards.  And the scary part is that this law is used everyday to rip someone off the streets.  Is it appropriate sometimes?  Sure.  Is it inappropriate sometimes?  Absolutely.  Such inconsistency is disgusting.

The procedures that lead to the death penalty are not open to guessing – such as, we better put this clown down because we think *** put on sunglasses and turn over next Tarot card *** he’ll kill again.  That never enters the discussion.  Death penalty cases are based purely upon past acts – and very few crimes qualify for DP consideration.

Further, the defendant gets two attorneys.  At least the lead guy has to have extensive experience in Murder trials.  Jury selection is much more detailed.  After the verdict is reached, the same jury hears evidence at the penalty phase – and the rules for what can be heard are greatly relaxed.  Every precaution is taken to ensure guilt is established and that the sentencing considers all the mitigating factors.

And the appeals process is robust.  Remember Troy Davis?  Cop killer just got toasted a little while ago.  All sorts of last minute claims about every witness recanting their statements.  Seemed ripe for review.  Got reviewed.  172 pages worth.  And 108 footnotes.  The death penalty is not invoked lightly.

So what about the work of organizations like Project Innocence?  Great work without a doubt.  They are bringing the government to account based mostly upon DNA evidence.  Remember, the OJ Simpson trial was the turning point for DNA evidence – before that it wasn’t used much.  Was still seen as gaining acceptance in the scientific world.

But don’t over-credit PI.  As DNA is used more universally (there’s a cost consideration, too), their batting average will cave.  And then the nefarious side will be clearer – those folks that have a social agenda to end the death penalty as opposed to merely ensuring it is meted out to the truly guilty.

So let’s return to the original query – Why do we put people to death?  It’s the collective decision of all of us in this country.  Some states allow it, others don’t. Overall, the American people are pro-DP.  For those states that allow it (I live in one), I think it is an amalgam of many things – Historical roots, religious beliefs, retribution, and general deterrence.  I’m sure you can add to the list.  It’s personal.

I reject with all that I am the bleeders that tell us that there is no general deterrent effect.  (A specific deterrent is one that stops a present criminal from committing a future crime because he just got whacked hard; a general deterrent is one that stops other potential criminals from committing a future crime because they saw what you did to another person that committed that crime.)  All the data pushed out that tells us that some guy on the street doesn’t consider whether he’s in a DP state when he kills is trash.   First, the person isn’t well grounded in cause and effect, so don’t rely too heavily on their opinion.  They doubt they’d ever get the DP.  Until they do.  And second, talk to 99% of those on death row and ask them if their reality could be changed would they still have killed.  I doubt it.  There is a general deterrent effect among thinking criminals.  And don’t overlook that adjective – some of the smartest people I have ever met have been career criminals.

I think it’s clear from this writing that I’m pro-DP.  I have no issue sharing that.  But as an attorney?  I’m not pro- or anti-anything.  Don’t have to be.  I do my job.  If anything, I am pro-Constitution.  Before the government is going to strap my client onto the gurney, I’m gonna make sure that every single right and privilege under the law is exhausted.  That has nothing to do with being for or against the death penalty.  That’s being for the laws of my country and my state, for my constitution, and for my client.

Why we put people to death is my concern when I am in my home or in the voting booth – and that’s personal.

How we do it is my concern at the office.

Post-script – Here’s a good article on a present C&U issue.

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

View all posts by Clyde

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