Patterico's Pontifications

5/4/2022

Constitutional Vanguard: Is a DA’s Arbitrary Decision to Spare a Convicted Killer a Valid Reason to Oppose the Death Penalty?

Filed under: General — Patterico @ 8:29 am



Let’s talk about something other than abortion, shall we?

Today’s newsletter is a long disquisition (mostly free, but with a fascinating part behind the paywall) about the recurring issue of the allegedly arbitrary nature of the death penalty. The springboard for the discussion is a decision by a South Texas DA, who styles himself as a “Mexican biker lawyer covered in tattoos,” to refuse to seek an execution date for a convicted killer who stabbed someone 29 times to rob them of $1.25. The guilt of the defendant is not in question, but the arbitrary decision by the DA prompted David French and Sarah Isgur to declare the episode the latest of many reasons to oppose the death penalty in practice — because such arbitariness reveals a fundamental arbitariness that undermines the whole process. This is my response. Excerpt from the unpaid portion:

<To me, citing DA Gonzalez’s decision as support for one’s opposition to the death penalty itself, as French and Isgur do, is as silly as announcing one’s opposition to the very concept of holding jury trials for the crime of murder, by citing the fact that the OJ Simpson jury arbitrarily let a clearly guilty man off the hook. The argument in both cases is the same: a decisionmaker — who has contempt for, and is an opponent of, a process — has acted in a highly arbitrary and indefensible manner with respect to that process. Therefore, the argument goes, the decisionmaker undermines confidence in the very process in which the decisionmaker acts. Therefore, the process itself is arbitrary . . . and we should stop engaging in it!

What?!

And an excerpt from the paid portion:

Like jurors’ power of acquittal, jurors’ power to vote for life is, as a practical matter, unlimited and entirely unreviewable, while decisions to vote for death are closely scrutinized and reviewed for decades. Thus, in this context, the discretion is very wide and unconstrained at one end of the spectrum (jurors’ power to vote for life) and very narrow and constrained at the other end of the spectrum (jurors’ power to vote for death). But the very wide range of the freedom conferred at the “life” end of the spectrum means that mechanistic determinations are out of the question. And as the decisions become less mechanical and automatic, this policy completely undermines the opposite goal of achieving equal outcomes for every person who might get the death penalty.

. . . .

Yes, it is true: in such a system, arbitrary and arguably unreasonable acts of mercy might be “unfair” in the sense that some people like Ramirez unfairly benefit from them and others do not. But the fact that such discretion exists, and even the fact that it can be abused in favor of mercy, is an indication that the system in general is, if anything, skewed towards mercy. That might make individual acts of mercy seem “arbitrary,” in the way that it seems arbitrary to French and Isgur that Ramirez has thus far evaded an execution date for a horrific crime, when a similarly situated defendant, in a jurisdiction with a DA bearing fewer tattoos and other indicia of the counterculture, might already have been executed.

In short, the fact that our system of capital punishment provides wide discretion to be merciful if inconsistent, rather than harshly consistent, is an indication that the system works in the way most Americans think it should.

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11 Responses to “Constitutional Vanguard: Is a DA’s Arbitrary Decision to Spare a Convicted Killer a Valid Reason to Oppose the Death Penalty?”

  1. Most crimes go unpunished, therefore we should stop punishing criminals. It’s arbitrary who gets punished, and if there is any correlation, it is to the mentally handicapped and/or poor, so it’s also discrimination!

    Kevin M (eeb9e9)

  2. Someone will need the /sarc tag, so here it is.

    Kevin M (eeb9e9)

  3. It’s an old argument. More than forty years old in Illinois, resulting in a more or less permanent 4-3 split in the Illinois Supreme Court in death penalty cases (until we got rid of the death penalty altogether). The dissents could find nothing else wrong with the way we did it, so they seized on the prosecutor’s discretion on whether to seek the death penalty following a conviction for capital murder.

    nk (24001b)

  4. true generousity of spirit, mercy aren’t arbitrary, they are highly situational.

    People mistake or misconstrue that as inconsistency. The consistency is found in of those things being situational, not in the results.

    As humans, some of us get stuck there.

    I’m a lean to the situational jury because otherwise we should just maybe write an algorithm and input data, spit out a verdict instead of having courts, attorneys, judges

    steveg (8d66b6)

  5. The death penalty is arbitrary. Example jodi arias was tried and convicted of killing her mormon boy friend. She was given the death penalty but a juror in second attempt to give her the death penalty said no mormon has ever been given the death penalty for killing a mexican and refused. I am not against the death penalty even though arbitrary because to many politicians need to be given the death penalty along with other wealthy donors. Just as I support the 2nd amendment because black people need to be armed to shoot back at racism just as pro choicers have just found out the hard way that their are no rights only privileges and being anti-gun will not protect the privilege. Joining the john brown gun club is a better way to protect rigt to choose then liberal whining to anti-choicers. The decleration of independence was enforced at yorktown as was the emancipation proclamation at gettysberg.

    asset (e150cd)

  6. Asset, it seems to me you have a rather paranoid worldview, and that you see racism everywhere. That is unfortunate. Furthermore, your frequent mention of violence is alarming.

    Bad things happen to me all the time. If I were a minority, I could easily slide into a mindset that attributed these incidents to racism. I feel sorry for people who go through life this way.

    It’s a slippery slope. Once a person encounters real racism it’s tempting to see racist intent behind every distasteful human interaction. Not only is it erroneous; it’s self-injurious.

    norcal (3f02c4)

  7. @6 Dr.king used to say you will deal with me or you will deal with malcolm X! After malcolm X’s murder Dr. king would say to the white power structure you will deal with me or with black militants. The velvet glove is useless with out the steel fist inside it. I don’t see racism everywhere ;but I am native american not black so I defer to them.

    asset (152bcc)

  8. Great analysis. Humans aren’t at our best when we analyze using emotion instead of reason. Always trust Patterico to use reason.

    Note to asset — anger doesn’t help judgment.

    DRJ (03cb91)

  9. OT- Oh those evil folks who made America great- and want it great again, eh, Anit-Christ Joe?!

    May 5, 1961:

    https://www.youtube.com/watch?v=3xd9kg-fJ9g

    DCSCA (cfbfd2)

  10. Oh those evil folks who made America great- and want it great again

    Every A-list engineer or scientist had left NASA by 1975. After that it was just bureaucratic rice-bowl protection.

    Kevin M (eeb9e9)

  11. Every A-list engineer or scientist had left NASA by 1975

    Except they didn’t. That would have been news to the likes of aeronautical engineer/FD Gene Kranz [retired from NASA in 1994], engineer/FD Dr. Christopher C. Kraft, Jr [retired from NASA in 1982]; engineer/FD Glynn Lunney [retired from NASA in 1985], mechanical engineer Max Faget [retired from NASA in 1981]; engineer/FD John Hodge [retired from NASA in 1987]; aeronautical engineer/FD Gerry Griffin [retired from NASA in 1986] engineer/flight director John Aaron, [retired from NASA in 2000]… to name a few.

    DCSCA (28a351)


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