Patterico's Pontifications


The Silliest Anti-Death Penalty Argument

Filed under: Crime,General — Patterico @ 1:20 pm

Death penalty opponents’ silliest argument may be that it is “cruel and unusual punishment” to incarcerate a convicted murderer on Death Row for a long period of time, while he pursues his appeals. Any time a death penalty opponent raises this argument, you can safely write them off as a gasbag.

The latest murderer to raise this argument is Ronald Chambers of Texas. There is no doubt about his guilt, which he acknowledges. According to this Fort Worth Star-Telegram article, Chambers and a confederate attacked two Texas Tech students in Dallas, Mike McMahan and Deia Sutton, who “were shot from behind as they walked hand in hand down an embankment.” Chambers bludgeoned McMahan to death with the butt of a shotgun, hitting him 10 to 20 times, while his confederate tried to strangle Sutton and drown her in the Trinity River.

Despite his acknowledged guilt, Chambers has managed to spend 31 years on Texas’s Death Row, as a result of numerous appeals he has filed over the years. Having managed to stretch it out this long, he now has the chutzpah to argue that it’s been too long:

Attorney Wes Volberding of Tyler recently filed an appeal on Chambers’ behalf with the U.S. Supreme Court. The appeal . . . argues [among other things] that executing the prisoner after he has spent so long on Death Row — the result of litigation errors at his trials — constitutes “cruel and unusual punishment,” which is prohibited by the U.S. Constitution.

This is a patently ludicrous argument — one which Judge Michael Luttig once described as a “mockery of our system of justice, and an affront to lawabiding citizens.” Similarly, Justice Clarence Thomas has written:

It is incongruous to arm capital defendants with an arsenal of “constitutional” claims with which they may delay their executions, and simultaneously to complain when executions are inevitably delayed.

And our own Ninth Circuit has rejected such a claim with this language:

A defendant must not be penalized for pursuing his constitutional rights, but he also should not be able to benefit from the ultimately unsuccessful pursuit of those rights. It would indeed be a mockery of justice if the delay incurred during the prosecution of claims that fail on the merits could itself accrue into a substantive claim to the very relief that had been sought and properly denied in the first place. If that were the law, death-row inmates would be able to avoid their sentences simply by delaying proceedings beyond some threshold amount of time, while other death-row inmates — less successful in their attempts to delay — would be forced to face their sentences. Such differential treatment would be far more “arbitrary and unfair” and “cruel and unusual” than the current system of fulfilling sentences when the last in the line of appeals fails on the merits. We thus decline to recognize Richmond’s lengthy incarceration on death row during the pendency of his appeals as substantively and independently violative of the Constitution.

Yes, only a fool could see this as a valid argument. But if you agree with that, then it turns out that we have two fools on the Supreme Court.

Indeed, Justices Breyer and Stevens have been pushing the Supreme Court to hear this ridiculous claim for years now. Both have repeatedly issued dissents from denials of certiorari on this issue. Since there is no solid basis in American jurisprudence to support such a ridiculous claim, they look to — where else? — foreign law. They combine this with hand-wringing statements about how awful it is to await your execution on Death Row. Typical of their logic is this statement from Justice Breyer: “It is difficult to deny the suffering inherent in a prolonged wait for execution — a matter which courts and individual judges have long recognized.”

What does convicted murderer Chambers say to that?

Chambers, unlike others, doesn’t view his execution as a form of freedom from incarceration. “Every day is a blessing,” he said.

That’s a tad off-message, Mr. Chambers! The gravamen of your claim is that every day spent on Death Row is a curse!

But let’s assume that Mr. Chambers simply misspoke, and said “blessing” when he meant “curse.” Let’s assume that every day he spends awaiting execution is agonizing and gut-wrenching. There is an easy solution to that problem: a speedy execution.

Only the innocent, and those who were illegally sentenced to death, can validly complain of the length of their incarceration on Death Row. As to everyone else, the horrors of a long stay on Death Row are easily remedied by executing them without further delay.

Of course, that’s not what they want — which is why they stretch out their ultimately unsuccessful appeals for decades.

It’s bad enough that we allow them to do that. But it’s outrageous that their lawyers would blame the government for it.

32 Responses to “The Silliest Anti-Death Penalty Argument”

  1. well, while the prolonged stay on death row might indeed be cruel, it is not unusual… therefore it does not meet the constitutional standard for “cruel AND unusual” punishment… furthermore, since hanging and firing squads are both quite common, they are not unusual, they should be used quite a bit more as they are cheaper and a lot easier to conduct.

    chris (64da58)

  2. I am thankful that the death penalty is slowly being phased out not only in America, but across the world. Maybe evolution or social change has something to do with it, but killing someone puts the state at the murderer’s scummy level. On the other hand, letting him sit in jail on his Neanderthalic ass and thinking about his heinous crime is a much better punishment.

    [If someone kidnaps a child and locks them in a small room for years, does imprisoning the kidnapper put the state at the kidnapper’s scummy level?

    To me, the better punishment is usually the one that the criminal doesn’t want. And most of them fight being killed. — P]

    TruthProbe (b0f421)

  3. You mean, Truth, live in comparative luxury, with conjugal visits and all needs attended to and even early release or outside work programs?

    You don’t execute them they eventually get out. Sirhan Sirhan, Manson, the Night Stalker will eventually get out. Heck a number of the Manson family will be released fairly soon.

    Jim Rockford (e09923)

  4. I’m reminded of the definition of chutzpah: The man who murders his parents and then begs for mercy on the grounds he’s on orphan. Actually, I could see that getting a few cert votes.

    Polybius (7cd3c5)

  5. Mr. Chambers is right when he says “Nobody, should be locked up [on Death Row] for 31 years,” but I’m sure he and I disagree on the remedy for that injustice.

    DRJ (51a774)

  6. Surely you meant “cynical” not “silly” in your headline?

    Dubya (c16726)

  7. It like those defendants who kill a “loved one” then argue that they’ve suffered enough; after all they’ve lost a “loved one”.

    Robin Boult (818d6c)

  8. TruthProbe: You assume the murder/rapist is capable of self-reflection and has a conscience that would be bothered by thinking about what he/she had done.

    My guess is you don’t spend a lot of time around such people or you probably wouldn’t make such an assumption.

    Just so we are clear, I’m against the death penalty but only for the reason I don’t trust the criminal justice system to get it right (the verdict, not the actual killing…for what it’s worth, I just don’t care at all, AT ALL, that it takes 30 minutes and one or two attempts with the’re killing him, try your best to make it quick and painless, but you can’t lose sight that the whole point is to kill him)

    ThreeSheets (9d0ed8)

  9. The Silliest Anti-Death Penalty Argument …

    The Silliest Anti-Death Penalty Argument Patterico Death penalty opponents’ silliest argument may be that it is “cruel and unusual punishment” to incarcerate a convicted murderer on Death Row for a long period of time, while he pursues his appeal…

    Bill's Bites (72c8fd)

  10. To me, the better punishment is usually the one that the criminal doesnt want. And most of them fight being killed. P

    Clearly, the standard of what criminals don’t want shouldn’t be a basis for sentencing defendants. If it were, why wouldn’t we invent all sorts of fabulous ways to torture them to death over an elongated period of 10 years, televised for all to see? That’d probably want that even less than being lethally injected. (No problem there, I know.)

    In the bigger picture, the state shouldn’t be in the business of intentionally killing its constituents, even those who are guilty of heinous crimes. There are many other ways to contain violent criminals, and there is little evidence that the death penalty deters violent crime (in fact, there is just as much evidence to the exact contrary). What we’re left with, then, is the death penalty in order to fulfill some sense of righteous vengeance on behalf of the victim or society on the whole–eye for an eye, tooth for a tooth sort of thing–which shouldn’t be the basis of the implementation of capital punishment.

    As I see it, capital punishment degrades, not affirms, the value of life. If life is so expendable that a judge can take it away in a court of law, how does that reinforce the notion of our “unalienable” right to life?


    [My comment merely addressed the argument that life is somehow a worse punishment than death, by pointing out that inmates choose life over death. Your trick of looking at a ridiculous extension of my words could be used against your own argument, to say that the inalienable right of freedom can never be taken by some judge. s- P]

    Tom (5c26ba)

  11. Well, the notion of “freedom” has been compromised since day one, considering that the author of the inalienable rights quote actually owned slaves. We could construe an argument whereby “liberty” means being able to walk and talk and do stuff–while behind bars. But I agree, that’s pretty silly and/or tenuous at best.

    However: the notion of “life” can’t really be compromised in any way at all–you either have it or you don’t, and for it to be taken intentionally is degrading, not affirming. Which is my broader point.

    Tom (eb6b88)

  12. Any assertion of “natural rights” can be attacked a thousand different ways as wishful dreaming (or hypocrisy). The only right Nature gives us is to return to the bottom of the food pyramid.

    As for,

    “Clearly, the standard of what criminals don’t want shouldn’t be a basis for sentencing defendants.”

    It’s hard to disagree with that statement. The basis for sentencing defendants, for the most part, should be the protection of society. Making certain that they are no longer in a position to commit further crimes. In a relatively small number of cases, it should be to express society’s outrage over especially heinous and inhuman conduct. With the death penalty if a jury thinks so.

    BTW: Tom, are you an Ayn Rand fan? I see these arguments and definitions in the negative — what things are not instead of what they are — mostly from objectivists.

    nk (41da82)

  13. […] OK, the headline is swiped from VH-1 and Patterico, but the left-coast prosecutor is on to something in “The Silliest Anti-Death Penalty Argument.” […]

    Don Surber » Blog Archive » Silliest Anti-Death Penalty Argument. Ever. (78dd76)

  14. This sounds like the classic example of a man who murders his parents and then begs for mercy because he’s an orphan.

    Steven Den Beste (99cfa1)

  15. I’m against the death penalty but only for the reason I don’t trust the criminal justice system to get it right (the verdict, not the actual killing…

    Well, since this perp’s guilt is not in question, why be against his execution?

    Darleen (543cb7)

  16. As I see it, capital punishment degrades, not affirms, the value of life. If life is so expendable that a judge can take it away in a court of law, how does that reinforce the notion of our “unalienable” right to life?

    1- by not executing those guilty of the most heinous murders, the state is degrading life by sending the message that the lives innocent victims have less value that their murderers. There is no moral equivalency between the murder of an innocent person and the execution of a murderer.

    2 – judges don’t “take away” life..they are pronouncing a sentence fully allowable via the Constitution

    No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

    What we’re left with, then, is the death penalty in order to fulfill some sense of righteous vengeance on behalf of the victim or society on the whole–eye for an eye, tooth for a tooth sort of thing–which shouldn’t be the basis of the implementation of capital punishment.

    This is an emotional argument without merit. All punishment has an element of “vengence”. Why do we fine someone for DUI? Or in LWOP cases, who are we “protecting” when a 70 year old is still imprisoned? It isn’t a matter of “vengence” but whether that vengence is just or unjust. Cutting off the hand of a petty thief is unjust vengence… the punishment out of rational proportion to the crime. Jail time and a fine are appropriate punishment ie just vengence aka justice.

    Darleen (543cb7)

  17. I’m not sure why anyone is in the least surprised by the argument; the entire purpose is to tie up the courts in further knots, to prevent the execution from being carried out. That there was a member of our esteemed host’s profession who was willing to make such an argument in defense of his client simply points out that there are qualitative differences between attorneys, and our host is not on one of the lower levels.

    Dana (556f76)

  18. The courts go along. I have made as much of a frivolous argument in a death penalty interlocutory appeal which would have subjected me to sanctions if I had made it in a civil case. My entire purpose was to tie up the courts in further knots, to keep the case from even coming to trial. I was turned down in an unpublished opinion but my client got an extra year of life (in maximum security). Since Gregg v. Georgia death penalty cases are outside both substantive and procedural precedent.

    nk (5a2f98)

  19. I think it’s fabulous that Stevens and Breyers think the Supreme Court should consider this issue.

    Not because it has any merit, but for what it reveals about the quality of their legal “analysis.”

    Mike Lief (e6260e)

  20. Breyer and Stevens are worse than fools. They know that the argument is garbage, yet advance it anyway because they wish to thwart death sentences. The arrogance of those two is beyond belief and in my mind appallingly evil, as they wish to deprive an old woman of justice just because they can. Let’s call them what they are–evil abusers of their power.

    SPO (62ca0c)

  21. Darleen –

    Here in Illinois, something like 11 or 13 people who’s guilt was not in question were wrongly placed on death row. At the time, everyone was sure they were guilty, a jury had convicted them, eyewitnesses had picked them out and so on. But, they were wrong and in most of the cases subsequent advances in DNA technology freed them (not all were DNA cases, some had witness recantations or other reasons).

    I don’t think a system should cherry pick by saying “well, we know THIS guy did it…sure other people has mistakenly been convicted and sentenced to death row, but not this guy.” Any system will always have a certain error rate. Given that we can’t correct such an error after someone has been killed, I’d rather not kill them. In the same way that we say it is better for 10 guilty men to go free rather than one innocent man go to jail, I think it is better for 10 heinous murderers to spend natural life in jail rather than one mistaken execution. I also fully agree that someone could come to another decision.

    Illinois has a moratorium on the death penalty and I think one would be hard pressed to show this had a negative effect on crime, specifically death penalty eligible crimes. The only thing, in my humble opinion, the death penalty does is deter that specific person from committing another crime (which natural life in prison will also do as far as the public, but maybe not other inmates, cares) and service retribution/vengeance.

    If that is your thing, fine. But all in all, I just don’t think it is worth it.

    ThreeSheets (2f96aa)

  22. Actually, Patterico, the silliest anti-death penalty argument I’ve heard was, “Well, it won’t bring back the victim.”

    I just looked at the person who said that to me and replied, “Neither will locking the murderer up for 30 years, so let’s just let him go free.”

    Any system will always have a certain error rate. Given that we can’t correct such an error after someone has been killed, I’d rather not kill them.

    If someone is locked up for life and exonerated after his death, you can’t correct the error, either. Neither can you correct the error if you lock up an innocent man for 20 years, since you can’t give him the years taken away.

    The fact is, there is a lot more scrutiny of the case when the guilty party is sentenced to death than there is if he’s sentenced to LWOP. So, it’s more likely that an error of fact or law will be found,or some exonerating evidence will turn up.

    If you wish to argue that the death penalty is invalid because we can’t be 100% sure of guilt, then you must concede that locking someone up for life does not prevent him from killing again. A convicted murderer who kills a fellow inmate essentially gets to murder without penalty. And there was a recent case in California where a convicted murderer ordered the deaths of two of the witnesses at his trial.

    So far, there are plenty of examples of murderers killing while behind bars, but there has not been one case where a prisoner was exonerated after execution.

    Steverino (dbe234)

  23. Simple economic equation:

    Once the (non-frivilous or “entire purpose was to tie up the courts in further knots”) appeals are over, off with their heads!

    Keeping them around costs the state upwards of $300K/year. If at some point, a re-evaluation (by non-frivilous wrongful-death suit) determines they were executed erroneously, then pay the damages to the heirs/survivors who bring the suit.

    There’s not likely to be a lot of wrongful-death suits that will either be brought or awarded, so long-term cost-savings to the state will be enormous.

    Dubya (c16726)

  24. yeah recent cases of the convicted being exonerated by medical science is what everyone should be focusing on… we need a better way to conduct the judicial system… personally if I’m charged with a capital offense, i would much prefer to rely on the 95% accuracy of a Polygraph/Voice Stress Analysis than the 50% (or less) reliability of a jury…

    chris (64da58)

  25. I belive that Heidegger would say living on death row would be a rescue from The Them, and a way to experience one’s authenticity as a being-towards-death. (hence: “Every day is a blessing.”)

    jpe (07c249)

  26. ThreeSheets

    I was speaking specifically to this case. The actuality of the murder is not in question.

    Actually, the possiblity of wrongfully executing an innocent person is the only legitimate moral argument against the death penalty. In any system that has been rife with corruption or negligence I would certainly support suspending it (as well as other sentencings) while things are purged and reorganized. I also support all manner of technology, objective review procedures, and specific legislation to make such mistakes as close to non-existent as possible.

    But nothing in this life is risk-free. So do we completely ban the death penalty, even for such known murderers as this perp, on the very very remote chance that an innocent may be wrongfully executed? Because be assured, banning the death penalty guarantees other innocent people will die at the hands of convicted murderers left alive.

    Darleen (543cb7)

  27. Another lame excuse from some liberal idiot lawyer i mean how long did ROBERT ALTON HARRIS,TOOKIE WILLIAMS, and others sit on death row? how long did GARY GILLMORE,and TED BUNDY sit on death row? frankly they should do what they did to CHARLES STARKWEATHER who murdered his girlfreind parents and little sister instead of all those years of stupid appeals he was fried in old sparky with in the year

    krazy kagu (e7029d)

  28. …CHARLES STARKWEATHER who murdered his girlfreind’s parents and [strangled to death her 2-year old] little sister…

    …after having robbed and shot a gas station attendent to death the previous month. He hid their bodies in the back yard and he and Caril Anne Fugate [the girlfriend] stayed in the house for several more days before leaving on their multi-state killing spree. In the three days after leaving, they shot and stabbed to seven more people to death.

    Starkweather would later claim that in the aftermath of the first murder he believed that he had transcended his former self to reach a new plane of existence in which he was above and outside the law.

    Caril Anne claimed Starkweather was holding her hostage by threatening to kill her family who she says she did not know was already dead. Caril Ann was sentenced to life in prison but was paroled in 1976.

    summarized from Wikipedia which also has an interesting summary of their impact on culture.

    Dubya (c16726)

  29. Come on Patterico. This guy didn’t dream up this argument. His lawyer did.

    [I know that. Technically, though, he is the one who is said to be making it. I blame both of them. –P]

    As far as the rest of it, there’s a two word response to pro-death penalty folks nowadays: Mike Nifong. As long as our system has Nifongs in it – even ONE Mike Nifong – I do not see how anyone can in good conscience be pro-death penalty.

    And before Nifong there was OJ Simpson. And Patrick Fitzgerald. And Ronnie Earle. And on and on.

    Humans are flawed and make mistakes. I’ve made a legion of mistakes in my almost 50 years and many times I was certain I was right. A flawed, human system shouldn’t be empowered with putting folks to death – especially with the indifference to human life that our system demonstrates. It isn’t necessary or desirable. It serves no good purpose.

    That doesn’t mean our system – or the people that work in it – is terrible, or bad, or corrupt. It just recognizes that it isn’t perfect, and an imperfect system shouldn’t put people that can’t even run a Social Security office in charge of deciding who gets to live or die.

    [O.J. Simpson is a reason not to have the death penalty?? Me no follow. In any event, this fellow admits his guilt, so your theories as applied to him are . . . theoretical. — P]

    Dwilkers (4f4ebf)

  30. OJ Simpson is an example of the flaws in our system Rico, that’s all I’m saying.

    Well, that’s just my opinion anyway.

    You know, the problem is not everyone is as straight an arrow as you and your wife are Rico. You have confidence in the system because you work in it.

    Anyway, it is a really stupid argument to make. The only thing dumber than the argument is Breyer and Stevens wanting to hear it. /shrug

    Dwilkers (4f4ebf)

  31. If prolonging the time murders spend on death row is cruel and unusual punishment, then judges like Breyer and Stevens are serial mass torturers.

    No absurdity is too great to prevent a further absurdity.

    Kevin Murphy (0b2493)

  32. If we abolished the death penalty and had life in prison, without parole, how many of these supposedly innocent people would have batteries of pro bono lawyers devoting themselves to proving their innocence? The only thing that motivates that is the death penalty. The result is that, absent the death penalty, “innocent” people would rot in prison forever.

    Attila (Pillage Idiot) (68fd1f)

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