Patterico's Pontifications

11/29/2005

A New Suggestion for Avoiding Execution of Innocents: Elevating the Importance of “Lingering Doubt”

Filed under: Crime,General — Patterico @ 6:53 am



This post builds upon my previous posts on a higher standard for the death penalty, and provides an improved suggestion for implementing such a standard: instructing jurors that they cannot impose death if they retain a lingering doubt about the defendant’s guilt.

I have recently discussed on this blog an alternative standard for death penalty cases: proof to an absolute certainty, otherwise described as proof beyond any possible doubt. Several commenters, most notably Xrlq, Dafydd ab Hugh, and See Dubya, have taken issue with my proposed standard. The most convincing argument: is Patterico saying we should shy away from death sentences based on an unreasonable doubt?

My response has been consistent: I may not be articulating it perfectly, but we need something better. Too many innocents have been committed to Death Row. If someone completely innocent is executed — and there is some evidence that this has already happened — this would be (in my view) a moral horror. And on a practical level, I believe that support for the death penalty might sharply drop off with convincing evidence of such a revelation.

Based on a conversation yesterday with a colleague who had read my posts on the issue, I came up with a new way of articulating the standard. I am very pleased with it. It fits much more neatly within the current state of the law, and is much closer to what I was trying to get at. My critics may or may not like it — I suspect that they won’t — but I think it’s very much what I was looking for. It is somewhat less suspectible to the criticism that it gives too much credit to unreasonable doubts. And I think it would provide juries with proper guidance, helping them to avoid sentencing an innocent man to die with a state-funded needle in his arm.

My new suggestion is based on the concept of “lingering doubt” or “residual doubt.” In the penalty phase of a capital case, most states allow a defendant to rely on such doubts as a mitigating factor. But characterizing such doubts as a mitigating factor allows them to be considered merely as one factor in the mix. I think that lingering doubts should be a decisive factor. Jurors should be told: if you have any lingering doubts about the defendant’s guilt, you should not sentence him to death. Period.

This suggestion is an improvement on my previous suggestion, because it helps mitigate the idea that unreasonable doubts should form the basis for a decision to spare the defendant’s life. Technically, the concept of “lingering doubt” does indeed rest on unreasonable doubts, since the jury has already found the defendant guilty beyond any reasonable doubt. But by providing for consideration of lingering doubt in the penalty phrase, most states recognize the real-world fact that a jury can convict someone beyond a reasonable doubt, but still maintain some residual doubts about the defendant’s guilt.

If they do, they should send the defendant to prison for life without the possibility of parole.

P.S. It is currently an open question whether defendants have a constitutional right to present further evidence and argument on the defendant’s guilt in the penalty phase. That issue will be resolved in the case of Oregon v. Guzek, which will be argued before the Supreme Court on December 7 of this year. The case of Franklin v. Lynaugh, 487 U.S. 164 (1988) suggests that there is no such right.

Regardless of whether defendants possess a constitutional right to argue lingering doubt, my argument is that, as a matter of policy, states ought to allow it — and it should be a determinative factor, not simply one among many.

31 Responses to “A New Suggestion for Avoiding Execution of Innocents: Elevating the Importance of “Lingering Doubt””

  1. Do jurors who have these ‘lingering doubts’ actually vote to impose the death sentence? If not, then what would be gained by your suggestion?

    And if there are, how would your new standard apply in the case of a juror, who, for one reason or another, wanted to see the death sentence imposed in a case where the juror had these ‘lingering doubts’ (assuming of course, this juror wasn’t about to tell the world of their lingering doubts)?

    steve sturm (e37e4c)

  2. “Lingering doubt” works if your goal is to give defendants one more bite at the apple during sentencing – something I don’t have a problem with since I, too, want to do everything humanly possible to avoid executing an innocent person – while still retaining the death penalty option. I especially like using it as an instruction rather than reformulating the standard of proof.

    So if the jury sentences a defendant to life (or life without parole) during sentencing, how do you handle the obvious appeal issue that the jury must have had a “lingering doubt” because they did not sentence the defendant to death? Wouldn’t that be a ground for defendant’s appeal of the guilty verdict?

    DRJ (15ed57)

  3. From Dennis Prager today:

    Opponents of capital punishment have blood on their hands

    Whereas the shedding of innocent blood that proponents of capital punishment are responsible for is thus far, thankfully, only theoretical, the shedding of innocent blood for which opponents of capital punishment are responsible is not theoretical at all. Thanks to their opposition to the death penalty, innocent men and women have been murdered by killers who would otherwise have been put to death.

    The Editors, American Federalist Journal (17fd00)

  4. Patterico: Let’s have no death penalty if there is “the slightest reasonable doubt.”

    Andrew (08ba2c)

  5. What is lingering doubt if it is not reasonable doubt? I realize that there is some wiggle room between “absolute certainty” and reasonable doubt. But where is the lingering doubt? I assume somewhere in between.

    But that then calls up the comment by Steve Sturm above … if you had a lingering doubt, why would you vote for death at all?

    Barring some whole failure in the process, it appears to me that, most juries who 1. vote to convict, and then 2. vote for death (not to mention that the judge then must agree and then impose a death sentence)… are absolutely certain that the defendant did the crimes he was convicted of, and should die for doing them.

    So how is allowing some hedging based on lingering doubt going to correct for this supposed failure in the process? It appears to me only to be a way to appease the Mike Farrell’s and Ed Asner’s of the world.

    MOG (d3d04a)

  6. Having again re-read your post … I agree with the thought of instructing the jury on such issues. It would then require the jury only to vote for death if they are absolutely certain of the defendant’s guilt. (It also will open us up to some very annoying arguments by defense attorneys playing for the juror’s sympathetic heart strings.)

    But how does this correct for the errors that supposedly exist?
    It just appears to let the jury off the hook for any guilt in playing a role in the execution.

    MOG (d3d04a)

  7. Most of the convictions that have been overturned were decided in the years before DNA evidence was available or was accepted. Now that DNA evidence is widely used and available you are probably arguing a moot point.

    Also, in recent years the laws governing capital punishment have changed greatly. The burden of proof for a death sentence to be given is very high. In most states it is used only in aggravated murder cases.

    There are 38 states with death penalties, 36 of those have inmates on death row. There are only 18 states that have a death penalty and are still allowing executions. Last year there were 59 executions in 12 states. But there were 3,315 inmates on death row so the number of executions compared to death penalty convictions is low. The number of executions compared to murders is neglible. Point is, imposition of the death penalty is rare. In all cases of its imposition there is an automatic review by a higher court and an automatic appeal. Many cases are overturned or the sentence is reduced on appeal. This is almost never because innocence is proved or even guilt questioned but because of some mistake in procedure by the court. Death penalty opponents often cite the number of cases “overturned” as proof of innocents convictioned and then conveniently neglect to mention that many of these are reconvicted in a second trial.

    To summarize, in the legal environment of today the death penalty is rarely given in sentencing and even more rarely carried out. Appeals are automatic and the process of appeals takes more than ten years on average. The chances that an innocent person can be convicted and executed today are vanishingly small.

    Clay (ffd979)

  8. I’m OK with the “lingering doubt” rule, provided that the only issue reviewable on appeal was how the jury was instructed, and not whether or not one or more jurors harbored such doubt and improperly failed to act on it. Once the verdict has been given, I don’t want any of the 12 to be able to come back later with “I had a lingering doubt.”

    Xrlq (5ffe06)

  9. I dunno. How are you going to define “lingering” doubt when even “reasonable” doubt is so tough? “It’s not any doubt, it’s…”

    Somehow, DNA evidence should be mandatory and paid for by the State if they seek the death penalty. Other than that, I dunno…

    Patricia (2cc180)

  10. Patterico:

    Hm. At first, I was somewhat sympathetic to this latest version of the Patterico Proposal; but the more I think about it, the more I think it would cause more trouble than it resolves, mostly for the reason Patricia and MOG-1 cite: there is really no good way to define a “lingering doubt” so that it’s different from both a reasonable doubt and an entirely unreasonable one.

    You’re a judge, I’m a juror: how do you explain the concept of a lingering doubt to me, assuming I already understand what a reasonable doubt is?

    Dafydd

    Dafydd abHugh (f8a7be)

  11. I don’t get it. If they had lingering doubts, why did they vote guilty in the guilt phase?

    If they voted guilty in the guilt phase what are these lingering feelings evidence of, evidence that he didn’t do it? Then they should be going to the judge and saying, “Judge, I’ve made a terrible mistake. This is an innocent man” not, “I’m sure enough of his guilt to imprison him for life but not sure enough to put him to death”.

    Or is it evidence that he did it but their just not sure that there aren’t enough mitigating circumstances to warrant not killing him?

    No that can’t be it because what you’re trying to do is to prevent killing a completely innocent person.

    No. I don’t think you’ve gotten any closer here.

    If there’s a lingering doubt in my mind that the man is completely innocent of this crime then I shouldn’t be in this situation anyway. I should have voted ‘not guilty’ in the guilt phase and stuck to my guns or I should be going to the judge and explaining my situation, not copping out and sending someone whom I suspect to be a completely innocent man to prison for life.

    Craig R. Harnon (6073fd)

  12. I’ve long had feelings like Patterico’s, but I’ve felt the standard for capital cases should be “beyond a shadow of a doubt”, which I think is a better way of putting it to get the concept across to most people. I understand that Israel has had this concept in its capital cases against Nazis.

    I also lean toward the thought that this is an impossible standard for any real-world justice system to live up to over the long term, which makes me in turn lean toward being against the death penalty.

    Curt (b8067e)

  13. Along with the other caveats, I worry about cases reversed on appeal (especially by the reversal-happy 9th Circuit) because the defense didn’t adequately pursue some avenue of research or argument that might have lead to some potentially lingering doubt. We’ve recently seen cases where a penalty was overturned because the lawyer should have found some hidden mitigating circumstance that wasn’t presented at trial. I’m charry of adding to the list of things the “reasonable lawyer” is expected to pursue.

    Kevin Murphy (6a7945)

  14. Clay wrote:

    To summarize, in the legal environment of today the death penalty is rarely given in sentencing and even more rarely carried out. Appeals are automatic and the process of appeals takes more than ten years on average. The chances that an innocent person can be convicted and executed today are vanishingly small.

    Given that this subject arose because of the strong possibility (a jailhouse confession which exonerated an already executed man; some people have doubts about the confession) that an innocent man was executed, I’d suggest that the chances have already exceeded “vanishingly small.”

    But, perhaps more importantly, Clay also pointed out:

    There are 38 states with death penalties, 36 of those have inmates on death row. There are only 18 states that have a death penalty and are still allowing executions. Last year there were 59 executions in 12 states. But there were 3,315 inmates on death row so the number of executions compared to death penalty convictions is low. The number of executions compared to murders is neglible. Point is, imposition of the death penalty is rare.

    Then why even bother?

    It’s pretty obvious that, for the vast majority of murders, life in prison (or even less) is the actual sentence imposed. Why not simply go to life without parole (as is the real situation for the vast, vast number of condemned prisoners), and be done with it?

    Several studies, including by state corrections agencies, have documented that it is far more expensive to execute a prisoner than to keep him in prison for life. The rarity with which executions are actually carried out is a testiment to the impracticality of capital punishment.

    Even if I agreed with the idea of capital punishment, I’d have to ask: what’s the use?

    Dana R. Pico (3e4784)

  15. Point is, imposition of the death penalty is rare.

    Then why even bother?

    Huh? That’s a bit like saying justice is rarely meted out, therefore we need equal injustice for all.

    Several studies, including by state corrections agencies, have documented that it is far more expensive to execute a prisoner than to keep him in prison for life.

    Executing a prisoner is cheap. The appeals process is slow and expensive because death penalty opponents work day and night to make it slow and expensive, only to argue later that we should abolish the death penalty because it is so slow and expensive. Of course, no one ever talks about the costs of not having a death penalty, so even after taking these crazy appeals into account, the actual net cost of executing a prisoner is difficult to gauge.

    Even if I agreed with the idea of capital punishment, I’d have to ask: what’s the use?

    For some of us, justice is an end in itself. But I also think it’s crazy to suggest that the death penalty is not a deterrent to anyone at all, and it doesn’t take many of those “margin” cases to dwarf the most aggressive estimates of how many innocents might get killed.

    Xrlq (816c74)

  16. Mr. X:

    Should I assume from your statement that you believe that justice is never done in a murder case if the murderer is not executed?

    As for the costs of not having a death penalty, given that the murder rates in those states which do not have the death penalty are generally lower than in the states which do, and it costs more to execute a prisoner than to keep him in prison for life, I’d say that those costs are lower than having capital punishment.

    Dana R. Pico (3e4784)

  17. Should I assume from your statement that you believe that justice is never done in a murder case if the murderer is not executed?

    No, only in cases where the death penalty was warranted, but not available to the jury as an option.

    As for the costs of not having a death penalty, given that the murder rates in those states which do not have the death penalty are generally lower than in the states which do, and it costs more to execute a prisoner than to keep him in prison for life, I’d say that those costs are lower than having capital punishment.

    You can’t just “given” yourself whatever facts you want and take them as a given. States with low murder rates are less likely to have a death penalty because there are fewer victims’ families pressing for it. They don’t have lower murder rates because they lack death penalties, as you suggest. If that were the case, why weren’t their murder rates higher in the 1960s and earlier, when all 50 states had death penalties? And why isn’t D.C., which has no death penalty, substantially safer than Maryland and Virginia, which do? After all, D.C. has a lot more in common with its neighbor states than Iowa has in common with California, Alaska with Texas, etc., so if you’re going to object to my example, you might as well just concede that state-by-state comparisons are a dumb idea, and focus instead on the trends within a single state, before and after a major change in its death penalty laws. I don’t feel any safer in New York since the Court of Appeal struck down their death penalty law. Do you?

    Also, part of the reason it is cheaper to incarcerate someone for life is because some of those lifers pleaded out to avoid the death penalty. Another part is that the pro-criminal lobby tends to focus most of its energy in fighting the most severe sentence there is, whatever that punishment may be. Once death is no longer an option, and the American Criminal Liberties Union is freed up to go after LWP instead, you may find that incarcerating someone for life ain’t so damned cheap after all. Better send them all to college instead.

    Xrlq (ffb240)

  18. Mr. X wrote:

    Should I assume from your statement that you believe that justice is never done in a murder case if the murderer is not executed?

    No, only in cases where the death penalty was warranted, but not available to the jury as an option.

    So, if a murderer is sentenced to death, but is never actually executed, justice has been served?

    Dana R. Pico (3e4784)

  19. Dana R. Pico said:
    Even if I agreed with the idea of capital punishment, I’d have to ask: what’s the use?

    Because it is a punishment that fits the crime.

    I’m sure that there are people willing to argue that John E. Couey doesn’t deserve the death penalty. He is, of course, the man who abducted, raped, and buried alive Jessica Lunsford.

    Some crimes are so terrible that the people who commit them deserve death.

    Clay (6f4801)

  20. As for the costs of not having a death penalty, given that the murder rates in those states which do not have the death penalty are generally lower than in the states which do, and it costs more to execute a prisoner than to keep him in prison for life, I’d say that those costs are lower than having capital punishment.

    You can’t just “given” yourself whatever facts you want and take them as a given. States with low murder rates are less likely to have a death penalty because there are fewer victims’ families pressing for it. They don’t have lower murder rates because they lack death penalties, as you suggest.

    Mr X, you have made a false assumption: nowhere did I say that the lack of a death penalty decreases murder; what I have said is that the statistics are evidence that the existence of the death penalty does not deter murder.

    Murder, like any other crime, is deterred by the probability of getting caught. There is, after all, virtually no crime which one can say makes reasonable sense if you expect to get caught; all of our punishments far exceed any reasonably perceived benefit from committing a crime.

    If that were the case, why weren’t their murder rates higher in the 1960s and earlier, when all 50 states had death penalties? And why isn’t D.C., which has no death penalty, substantially safer than Maryland and Virginia, which do? After all, D.C. has a lot more in common with its neighbor states than Iowa has in common with California, Alaska with Texas, etc., so if you’re going to object to my example, you might as well just concede that state-by-state comparisons are a dumb idea, and focus instead on the trends within a single state, before and after a major change in its death penalty laws. I don’t feel any safer in New York since the Court of Appeal struck down their death penalty law. Do you?

    If I lived in New York, I’m sure that it wouldn’t make a bit of difference.

    And your comparison is faulty: the proper comparison to DC would be a major city, like foul, fetid, fuming, foggy, filthy Philadelphia, which just celebrated its 344th murder of the year yesterday. Pennsylvania has the death penalty, but murders have been on the rise in Philly; there were 330 murders in the city in all of 2004.

    Also, part of the reason it is cheaper to incarcerate someone for life is because some of those lifers pleaded out to avoid the death penalty. Another part is that the pro-criminal lobby tends to focus most of its energy in fighting the most severe sentence there is, whatever that punishment may be. Once death is no longer an option, and the American Criminal Liberties Union is freed up to go after LWP instead, you may find that incarcerating someone for life ain’t so damned cheap after all. Better send them all to college instead.

    It’s not just the focus of pro-life groups that slows down the imposition of the death penalty: condemned prisoners get automatic appeals. And if our esteemed host’s struggling to define some higher, yet still not impossible, standard of proof in capital cases seems like a difficult exercise, that is what we have in fact in the United States: review after review after review, to see if any little thing was overlooked or done wrong. We both know that a lengthy appeals process will not stop, because we are trying to make damned sure that we don’t execute the wrong guy . . . and we may stiil have failed a time or two.

    Dana R. Pico (a9eb8b)

  21. Clay said:

    Even if I agreed with the idea of capital punishment, I’d have to ask: what’s the use?

    Because it is a punishment that fits the crime.

    I’m sure that there are people willing to argue that John E. Couey doesn’t deserve the death penalty. He is, of course, the man who abducted, raped, and buried alive Jessica Lunsford.

    Some crimes are so terrible that the people who commit them deserve death.

    Deserves death? Probably so. Does that make it either right for us to sink to his level, or practical in terms of money and manpower to do so? No, it really doesn’t.

    I look at the case of Mumia abu Jamal, a convicted murderer from Philly. Had he been sentenced to life in prison, we’d probably never have heard of him. Instead, he’s a great cause for some on the left, costs the state many thousands of dollars more due to the legal procedures, has already been in jail for twenty years and still appears no closer to execution. My guess is that he’ll die in prison . . . of natural causes, which is what most men sentenced to death do.

    We’re better off locking him up and throwing away the key . . . and forgeting about him.

    You pointed out yourself, in an earlier post, that we actually execute very few people. What we do is sentence a bunch of people to death, like we’re trying to send some great message, and then we don’t follow through in the vast majority of cases. By the criteria you have set up, every one of those people somehow escaped justice, got away with the crime.

    Anyone who has ever been involved with business knows about measurement of effect: hard criteria by which managerial procedures are scored. With the death penalty in this country, anyone scoring it would conclude that it is tremendous failure: it results in neither the reduction in crime the advocates claim (as measured against non-death penalty states), nor is it carried out efficiently (it costs much more to actually execute someone than not to), nor is it carried out successfully (the failure rate, as measured by people sentenced to death compared to people actually put to death, is abysmal.) I’ve seen all sorts of excuses why these three measures are such failures, but I’ll bet that most of us know how upper management views people with excuses for failure.

    Dana R. Pico (a9eb8b)

  22. Mr X, you have made a false assumption: nowhere did I say that the lack of a death penalty decreases murder; what I have said is that the statistics are evidence that the existence of the death penalty does not deter murder.

    That doesn’t make sense. Either these statistics tell us something useful about the deterrent effect of capital punishment, or they do not. To the extent they do, they aren’t evidence that the death penalty is no deterrent, but rather, that it is a negative deterrent.

    Deserves death? Probably so. Does that make it either right for us to sink to his level…

    Excuse me? If Couey is put to death, it will be as a punishment for his crime. It is not remotely analogous to “sinking to his level” and raping and murdering an innocent. By that logic, you might just as well argue that the state is “sinking to the level” of kidnappers when it incarcerates them, or “sinking to the level” of petty thieves when it imposes a stiff fine.

    Xrlq (3646a1)

  23. Xrlq alludes to a question I have always asked people who make the moral equivalence argument:

    Let’s say a complete stranger grabs you and locks you in a small room for several months. What’s his appropriate punishment?

    And make sure you don’t sink to his level!

    Patterico (4e4b70)

  24. Changing the standard for death sentences to “beyond any doubt” is a version of this I’ve heard bandied about before. I suggested another procedural reform to avoid executing innocents — corroboration for eyewitness testimony here: http://gritsforbreakfast.blogspot.com/2005/11/requiring-corroboration-for-eyewitness.html
    Best,

    Scott (a72847)

  25. More from the X-Man:

    Mr X, you have made a false assumption: nowhere did I say that the lack of a death penalty decreases murder; what I have said is that the statistics are evidence that the existence of the death penalty does not deter murder.

    That doesn’t make sense. Either these statistics tell us something useful about the deterrent effect of capital punishment, or they do not. To the extent they do, they aren’t evidence that the death penalty is no deterrent, but rather, that it is a negative deterrent.

    No, that’s a faulty assumption: you are assuming that capital punishment has a deterrent effect, one way or the other. What I am telling you is that, at least as capital punishment is administered in this country, there is no demonstrable deterrent effect.

    Now, it is my opinion that the existence of capital punishment leads to a societal belief that killing someone is an appropriate solution to a perceived problem, but I sure don’t know how we’d quantify that!

    Deserves death? Probably so. Does that make it either right for us to sink to his level…

    Excuse me? If Couey is put to death, it will be as a punishment for his crime. It is not remotely analogous to “sinking to his level” and raping and murdering an innocent. By that logic, you might just as well argue that the state is “sinking to the level” of kidnappers when it incarcerates them, or “sinking to the level” of petty thieves when it imposes a stiff fine.

    If you are assuming that punishment must mirror the crime, then the little needle isn’t enough: you would have to put him to death in a manner similar to how he killed his victims.

    The fact is that we do consider life imprisonment to be adequate punishment for the vast majority of murders, even though that doesn’t put them to death. Mr Couey is now helpless, by definition. (If we have the power to execute him, against his will, he is helpless.) By keeping him locked up for the rest of his life, we are both protecting society from him and punishing him.

    Dana R. Pico (3e4784)

  26. If felony homicide is involved, then any lingering doubts by the jurors means only one of two things:
    1) the prosecution presented its case for the people poorly…

    2) the jurors are to damned incompetent to understand the facts of the case…

    russ (bde5db)

  27. No, that’s a faulty assumption: you are assuming that capital punishment has a deterrent effect, one way or the other. What I am telling you is that, at least as capital punishment is administered in this country, there is no demonstrable deterrent effect.

    That may be your argument, but the only evidence you’ve provided to support it is a bunch of lazy generalizations about states with/without the death penalty. If it “proves” the death penalty has no deterrent effect, it also “proves” it has a negative one. If it doesn’t, it proves nothing at all (except maybe that you can’t tell anything useful about crime and punishment by comparing Texas to Vermont).

    If you are assuming that punishment must mirror the crime, then the little needle isn’t enough: you would have to put him to death in a manner similar to how he killed his victims.

    I’m not arguing that position; else I’d also have to advocate we rape all rapists. I’m simply pointing out how ludicrous it is to call it “sinking to his level” when a state humanely euthanizes a vicious dog after it mauls a child to death. I know that analogy is unfair … to the dog, who lacked the moral capacity to know better in the first place, and who didn’t get all that (un-)due process before his execution was carried out.

    The fact is that we do consider life imprisonment to be adequate punishment for the vast majority of murders, even though that doesn’t put them to death.

    Who is “we?” You and your fellow DP opponents? I don’t consider a life sentence to be an adequate punishment for most intentional, largely unprovoked murders. I don’t know if the types I do think the DP is appropriate for constitute a majority of murders, but they do constitute a much larger piece than actually receives it. Try my system for a decade or so, and then we’ll talk deterrence.

    Mr Couey is now helpless, by definition.

    Good point. For a brief moment I was under the illusion that convicted murderers sometimes escape from prison, but we all know that never happens.

    Xrlq (3646a1)

  28. Dana R. Pico said:
    Deserves death? Probably so. Does that make it either right for us to sink to his level, or practical in terms of money and manpower to do so? No, it really doesn’t.

    I don’t think that I can argue against your “sinking to his level” statement better than others have already done. Suffice it to say that using your argument we would not punish criminals at all.

    I’m afraid that you missed the simple elegance of my previous statement: “It is a punishment that fits the crime.” Implicit in that statement is the fact that I personally don’t care if it deters other criminals or is expensive – capital punishment is just.

    We do many things in our society that are not “practical in terms of money and manpower” because they are the correct thing to do.

    Dana R. Pico also said:
    I look at the case of Mumia abu Jamal, a convicted murderer from Philly. Had he been sentenced to life in prison, we’d probably never have heard of him. Instead, he’s a great cause for some on the left, costs the state many thousands of dollars more due to the legal procedures, has already been in jail for twenty years and still appears no closer to execution. My guess is that he’ll die in prison . . . of natural causes, which is what most men sentenced to death do.

    We’re better off locking him up and throwing away the key . . . and forgeting about him.

    If deserves death then we should continue to make every effort to deliver it to him. Excutions are expensive and difficult because of the actions of death penalty opponents, not because there is something inherently difficult or expensive about carrying out the sentence. Your argument seems akin to giving in to spoiled children just to shut them up.

    Dana R. Pico also said:
    You pointed out yourself, in an earlier post, that we actually execute very few people. What we do is sentence a bunch of people to death, like we’re trying to send some great message, and then we don’t follow through in the vast majority of cases. By the criteria you have set up, every one of those people somehow escaped justice, got away with the crime.

    You have misunderstood my position. I don’t care spit about deterrence, sending a message, practical considerations, actions of opponents, etc. Here is my position: People who commit heinous crimes deserve to have their life ended and we should make every effort to carry out that sentence in those cases.

    Dana R. Pico also said:
    Anyone who has ever been involved with business knows about measurement of effect: hard criteria by which managerial procedures are scored. With the death penalty in this country, anyone scoring it would conclude that it is tremendous failure: it results in neither the reduction in crime the advocates claim (as measured against non-death penalty states), nor is it carried out efficiently (it costs much more to actually execute someone than not to), nor is it carried out successfully (the failure rate, as measured by people sentenced to death compared to people actually put to death, is abysmal.) I’ve seen all sorts of excuses why these three measures are such failures, but I’ll bet that most of us know how upper management views people with excuses for failure.

    I think that you probably already understand that the “excuses” you’ve listed mean zip to me.

    Comparing a government service to a business concern is a popular but specious analogy. (It is intriguing to consider privatizing the process of executions.) But, I do know something about management so I’ll play the game just for fun.

    I know that if what you produce is too expensive compared to the competition then you have other choices besides ending production. You can reduce your cost. If we were willing we could end the legal manipulations of death penalty opponents and make executions less expensive. I “know how upper management views people” within the organization that impede rather than contribute.

    Clay (6f4801)

  29. Russ said:

    If felony homicide is involved, then any lingering doubts by the jurors means only one of two things:
    1) the prosecution presented its case for the people poorly…

    2) the jurors are to damned incompetent to understand the facts of the case…

    Uhhh, maybe it’s possible they didn’t get the right guy?

    Dana R. Pico (3e4784)

  30. I don’t think it would make any difference if you changed the capital standard to “lingering doubt” from “reasonable doubt.” Do you really think that juries apply to reasonable doubt standard? If Juror A says to himself, “I think he’s guilty,” do you think he stops to try to find reasons to doubt? Or if Juror B says to herself, “I think he’s innocent,” well, obviously she’s going to vote to acquit. Even if doubt does come into play in jury decisions, could it really be decided in terms of a legal standard of reasonable doubt? Not likely. I know a defense lawyer who has often argued in her closings, “If you have any reason to doubt my client’s guilt…”; this is not the legal standard for reasonable doubt, but she’s been allowed to get away with it by countless judges.

    Joe (413e43)

  31. what is the statistic of innocents in jail?

    barbara (598743)


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