This Discussion Forum for Week concerns the rationality, and consequently from the vantage of most ethical theories, the public morality, of the death penalty for capital offenses, both in substance and as procedurally applied.
Our reading assignments this week include the following two items, available at these internal links:Randall Kennedy, “Race, Crime, and the Law“ (New York Pantheon Random House, ©1997), in David M. Adams, Philosophical Problems in the Law (4th ed.) p. 494—500.pdf
and
[caselaw] Brown v. Sanders, 546 U.S. 212 (2006).pdf
Please consult the following also:
[extract] Death Sentences and Executions 2019, published 16 April 2020 by Amnesty International Ltd, London, UK
[Per Curiam Opinions of Douglas and Marshall in part] Furman v. Georgia, 408 U.S. 238 (1972).pdf
[Syllabus and Dissenting Opinions of Brennan and Marshall only] Gregg v. Georgia, 428 U.S. 153 (1976).pdf
[CRS pub] Federal Death Penalty Act of 1994, codified to 18 USC Ch. 228 (2011).pdf
and
[CRS pub] Federal Capital Offenses An Overview of Substantive and Procedural Law (2011).pdf
Some preliminary observations on this week’s assignment are in order before we get started.
[1] Firstly, the issue of the public morality, of the death penalty for capital offenses belongs mostly to political philosophy as opposed to jurisprudence, since in the United States, although the Supreme Court did rule, in Furman v. Georgia, 408 U.S. 238 (1972) [at the link above, and discussed later herein], that the death penalty, though not unconstitutional “per se” or “in substance,” was unconstitutional “as procedurally applied” at the time, there have been very few Supreme Court judges who have voiced their concern that the death penalty is unconstitutional in its substace. See, for example, the Dissenting Opinions of Brennan and Marshall only] Gregg v. Georgia, 428 U.S. 153 (1976) [at the link above, and discussed later herein].
[2] Secondly, among the five permanent member states of the United Nations Security Council formed in 1945 (the victorious powers in World War II and still the world’s most powerful military forces, accounting for more than half of the world’s military expenditures), only the United States, Russia and China have not abolished the death penalty. France, an original member, since 1958, of the European Union (EU), is bound under Title 1 of the EU’s Charter of Fundamental Rights, in force since 2009, which abolishes (as violative of human dignity) slavery, the death penalty, eugenic practices and human cloning. The United Kingdom, an EU member from 1973 to 2020, accordingly has abolished the death penalty, as have all European countries except Russia and Belarus (in Belarus, more than half of the population prefers native Russian, Europe’s most widely spoken language, as their own tongue). A moratorium on the death penalty has however been in force in Russia since 2009. In the United States in 2019, the 22 death penalty executions in that year accounted for the sixth most recorded of any nation globally, though among the five countries with more executions, excluding China (with the highest number), more than 85% of all other reported executions took place in the remaining four countries, all belonging to the Muslim world. In connection with this second observation, please consult the following document:
[extract] Death Sentences and Executions 2019, published 16 April 2020 by Amnesty International Ltd, London, UK
[3] Thirdly, in Furman v. Georgia, 408 U.S. 238, at 327-328 (1972), the United States Supreme Court struck down the all the death penalty statutes in the United States in force at the time of that opinion as violative of the Constitution’s guarantee that cruel and unusual punishments shall not be inflicted, in view of compelling evidence tending to show that sentencing juries instructed under these statutes favored killers of black victims, and so discriminated against killers of white victims, as if the latter lives mattered more.
The first of our reading assignments above, an excerpt from Randall Kennedy’s 1997 book, “Race, Crime, and the Law,“ discusses the consequences of the Supreme Court’s decision in Furman v. Georgia, 408 U.S. 238, at 327-328 (1972), in particular the 1983 Baldus-Pulaski-Woodworth study, an extended empirical analysis investigating the evidence of racial discrimination in death penalty sentencing found by the Supreme Court in its Furman decision, and which has served to confirm the Court’s finding. Read the excerpt from Kennedy’s book at the following internal link:
Randall Kennedy, “Race, Crime, and the Law“ (New York Pantheon Random House, ©1997), in David M. Adams, Philosophical Problems in the Law (4th ed.) p. 494—500.pdf
Kennedy’s paper reviews how the 1983 Baldus-Pulaski-Woodworth (“Baldus”), derived from records of murder case in the state of Georgia during the 1970s, collected and analyzed evidence of racial discrimination in death penalty sentencing. Therein, Kennedy writes:
“… Baldus found that among the variables that might plausibly influence capital sentencing—age, level of education, criminal record, military record, method of killing, motive for killing, relationship of defendant to victim, strength of evidence, and so forth—the race of the victim emerged as the most consistent and powerful factor. Initially, simple correlations suggested the importance of this variable. Without attempting to control for the possible effects of competing variables, Baldus found that perpetrators in white-victim cases were eleven times more likely to be condemned to death than perpetrators in black-victim cases.
“Professor Baldus and his associates subjected this striking correlation to extensive statistical analysis to test whether the seemingly racial nature of this disparity was explainable in terms of hidden factors confounded with race. He eventually took into account some 230 nonracial variables that might have influenced the pattern of sentencing. He concluded that even after accounting for every nonracial variable that might have mattered substantially, the race of the victim continued to have a statistically significant correlation with the imposition of capital sentences. Applying a statistical model that included the thirty-nine nonracial variables believed most likely to play a role in capital punishment in Georgia, the Baldus study concluded that the odds of being condemned to death were 4.3 times greater for defendants who killed whites than for defendants who killed blacks, a variable nearly as influential as a prior conviction for armed robbery, rape, or even murder.”
In Furman v. Georgia, 408 U.S. 238, at 327-328 (1972), Justice Thurgood Marshall, writing separately, observed:
“Emphasizing the flexibility inherent in the words ‘cruel and unusual’, the Chief Justice [Earl Warren, in Trop v. Dulles, 356 U.S. 86, at 101 (1958)] wrote that ‘[t]he Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society’. … [I]n Robinson v. California, 370 U. S. 660 (1962) … Justice Stewart, writing the opinion of the Court, reiterated what the Court had said in Weems [v. United States, 217 U.S. 349 (1910)], and what Chief Justice Warren wrote in Trop—that the cruel and unusual punishment clause was not a static concept, but one that must be continually re-examined ‘in the light of contemporary human knowledge’.”
In so recognizing “the flexibility inherent in the words ‘cruel and unusual’,” however, Justice Marshall did not mean to imply that the words ‘cruel and unusual’ had undergone any etymological change in meaning since the Bill of Rights was ratified in 1791, but rather that the usage of these words by competent speakers of English at particular stages in “the progress of a maturing society’” was subject to flexible construction, and reconstruction, by those for whom the sentences in which they were originally couched, as expressive of certain fundamental notions, were intended to be comprehend, future judges of the courts in particular. And thus, that what the drafters meant by using the words ‘cruel and unusual’ in the Eighth Amendment deserved to “be continually re-examined in the light of contemporary human knowledge” of the day.
You may read the full separate opinion of Justice Marshall at the following internal link:
[Per Curiam Opinions of Douglas and Marshall in part] Furman v. Georgia, 408 U.S. 238 (1972).pdf
[4] Fourthly, because the U.S. Supreme Court’s opinion in Furman v. Georgia, 408 U.S. 238 (1972) was based on a finding of discrimination only after the jury had found the defendant guilty on the specified charges for which he had been indicted (pursuant to the substantive first degree murder law statute), the jury thereupon proceeding (pursuant to the procedural death penalty sentencing rules specified for defendants convicted of murder in the first degree) to arrive at a sentencing decision, the Furman decision served to affect only the sentencing rules specified for defendants convicted of murder in the first degree under the statute, thus striking down as unconstitutionally cruel and unusual not the substantive first degree murder law statute itself, or even the specification of the penalty for that crime as death, but only the statutorily specified death penalty sentencing procedures.
Thus the Supreme Court’s “Furman rule,” as it later to be called, put states with statutes specifying the death penalty for conviction for the crime of first degree murder on notice that their existing death penalty sentencing procedures were vulnerable to racially prejudiced, and therefore irrational and arbitrary, decision making by sentencing juries, rendering impositions of the death penalty at the time inconsistent with the eighth amendment’s guarantee against cruel and unusual punishment. And thus, each state with a death penalty statute quickly went to work attempting to correct or remedy this procedurally unconstitutional defect in their murder law.
Subsequently, in Gregg v. Georgia, 428 U.S. 153 (1976), the Court reinstated a number of revised death penalty statutes of certain states, including Georgia, Florida and Texas, that had, in the intervening time since its decision in Furman, introduced certain requisite procedural safeguards that the Court found adequate to comply with the eighth amendment’s guarantees. In the time frame between these two Supreme Court decisions (between Furman and Gregg), the death penalty, though not unconstitutional “per se” or “in substance,” remained unconstitutional throughout the states, “as procedurally applied.”
You may read the full Syllabus of the Court’s opinion in Gregg v. Georgia, 428 U.S. 153 (1976), and the dissenting opinions of Brennan and Marshall, who argued that the death penalty was in fact unconstitutional “in substance,” not merely “as procedurally applied,” at the following internal link:
[Syllabus and Dissenting Opinions of Brennan and Marshall only] Gregg v. Georgia, 428 U.S. 153 (1976).pdf
The Warren Court’s concept of “the evolving standards of decency that mark the progress of a maturing society” largely guides the Court’s decision in Gregg v. Georgia, 428 U.S. 153 (1976), though of course to uphold the death penalty in substance, and to reinstate it provided the states were prepared to adopt death penalty sentencing procedures in compliance with the due process standards set forth in Furman v. Georgia, 408 U.S. 238 (1972), narrowing the class of persons convicted of murder who are eligible for the death penalty to those found to have committed the murder under certain special aggravating circumstances of the murder, specified as such under the applicable murder statute.
Justice William Brennan, writing separately in Gregg v. Georgia, 428 U.S. 153, at 228-230, said:
“… [T]he cause forbidding cruel and unusual punishments under our constitutional system of government embodies in unique degree moral principles restraining the punishments that our civilized society may impose on those persons who transgress its laws. …
“This Court inescapably has the duty, as the ultimate arbiter of the meaning of our Constitution, to say whether, when individuals condemned to death stand before our Bar, ‘moral concepts’ require us to hold that the law has progressed to the point where we should declare that the punishment of death, like punishments on the rack, the screw, and the wheel, is no longer morally tolerable in our civilized society. My opinion in Furman v. Georgia concluded that our civilization and the law had progressed to this point and that therefore the punishment of death, for whatever crime and under all circumstances, is ‘cruel and unusual’ in violation of the Eighth and Fourteenth Amendments of the Constitution. I shall not again canvass the reasons that led to that conclusion. I emphasize only that foremost among the ‘moral concepts’ recognized in our cases and inherent in the Clause is the primary moral principle that the State, even as it punishes, must treat its citizens in a manner consistent with their intrinsic worth as human beings-a punishment must not be so severe as to be degrading to human dignity. A judicial determination whether the punishment of death comports with human dignity is therefore not only permitted but compelled by the Clause.”
And Justice Thurgood Marshall, writing separately in Gregg v. Georgia, 428 U.S. 153, at 231-232, 241, said:
“In Furman I concluded that the death penalty is constitutionally invalid for two reasons. First, the death penalty is excessive. Id., at 331-332; 342-359. And second, the American people, fully informed as to the purposes of the death penalty and its liabilities, would in my view reject it as morally unacceptable. Id., at 360-369. …
“The death penalty, unnecessary to promote the goal of deterrence or to further any legitimate notion of retribution, is an excessive penalty forbidden by the Eighth and Fourteenth Amendments. I respectfully dissent from the Court’s judgment upholding the sentences of death imposed upon the petitioners in these cases.”
[5] Fifthly, because of the technical nature of, and the complex consequences following upon, the Supreme Court’s differentiation and distinguishment of the revised sentencing procedures approved in Gregg v. Georgia, 428 U.S. 153 (1976), the legal question of the constitutionality of the death penalty was now firmly set apart from the political question. The procedural criminal law of sentencing convicted defendants, though elementary in the education and experience of professionals, may be daunting to many engaged in disputable political philosophy. Lawyers and judges at work in the criminal courts are familiar with sentencing procedures. In all criminal trials resulting in the conviction of the defendant, once the defendant has been convicted during the “guilt phase” of the trial, the “sentencing phase” of the trial follows.
In all criminal trials other than death penalty cases, the court, in reaching the sentencing decision, must hear and consider the relative weight of the district attorney’s (or prosecutor’s) “arguments in aggravation” (in an attempt to persuade the judge that the court should impose a harsher sentence) and the defense counsel’s (or defender’s) “arguments in mitigation” (in an attempt to persuade the judge that the court should impose a less harsh sentence). In felony cases, the court will also be presented by the warden with the Parole Board’s recommendations for a fair and proportionate sentence in the particular case, based on prison statistics. The judge will weigh all of these considerations in arriving at a sentence for the convicted defendant. Although sentencing jurors in death penalty cases, upon conviction of the defendant on the charge of first-degree murder, are expected to understand the sentencing instructions pronounced to them by the court without looking things up on their cell phone or in a reference book (in fact they are prohibited from doing so) you may consult the following links:
https://en.wikipedia.org/wiki/Aggravation_(law)
https://en.wikipedia.org/wiki/Mitigating_factor
To comply with the Supreme Court’s “Furman Rule,” the Federal Death Penalty Act of 1994, codified to 18 USC Ch. 228, established death penalty sentencing procedures similar to those introduced in states such as California. The Act sets forth procedures by which a sentencing jury in a federal district court may impose the death penalty for any of sixty enumerated offenses under three broad categories: murder, treason, and narcotics offenses. Section 3592 of the Act pronounces the specific mitigating and aggravating factors to be considered in determining whether a sentence of death is justified. Locate and examine now, at 18 USC Ch. 228 §3592(c), using my own handout at the internal link below, the Federal Death Penalty Act’s specification of sixteen special aggravating circumstances which a district court sentencing jury must have found to exist during the guilt phase of a murder trial in order for the murderer to be eligible to be considered for imposition of the death penalty, in accordance with the so-called “Furman Rule” of the Supreme Court’s decision in Furman v. Georgia (1972) and its subsequent decision in Gregg v. Georgia (1976). View §3592(c) using my own handout at this internal link @
[CRS pub] Federal Death Penalty Act of 1994, codified to 18 USC Ch. 228 (2011).pdf
An up-to-date version of the same is on line @
https://uscode.house.gov/view.xhtml?path=/prelim@title18/part2/chapter228&edition=prelim
The statute above also specifies, at 18 USC Ch. 228 §3593(e), the mandated procedure by which a federal death penalty sentencing jury may impose the death penalty or return a finding otherwise. The provision specifies that “the jury, or if there is no jury, the court, shall consider whether all the aggravating factor or factors found to exist sufficiently outweigh all the mitigating factor or factors found to exist to justify a sentence of death, or, in the absence of a mitigating factor, whether the aggravating factor or factors alone are sufficient to justify a sentence of death. Based upon this consideration, the jury by unanimous vote, or if there is no jury, the court, shall recommend whether the defendant should be sentenced to death, to life imprisonment without possibility of release or some other lesser sentence.”
[6] Sixthly, at present exactly half of the several states of the United States impose the death penalty in cases of capital murder (murder in the first degree), though only in certain cases where the sentencing jury has determined that the death penalty is warranted in virtue of its finding [FIRSTLY] during the defendant’s guilt phase of the trial, that certain special aggravating circumstances of the murder—specified as such under the applicable murder statute—render the defendant eligible to receive the death penalty, and then [SECONDLY] either [A] the statutorily specified aggravating facts about the murder outweigh all the mitigating facts about the defendant found by the jury to exist; or [B] in so-called “non-weighing states” such as Georgia and California, any and all aggravating facts about the murder that the jury has found to exist—not limited to those statutorily specified or otherwise duly noticed to the jury in advance of the guilt phase of the trial—offset any mitigating facts about the defendant found by the jury to exist.
In the former so-called “weighing states,” juries are instructed to weigh the presence of all the mitigating factors proved to be true about the defendant during the guilt phase of the trial as against all the aggravating factors about the defendant’s crime proved to be true during the guilt phase that are specified in the murder law codified to the statutes as constituting special circumstances rendering a convicted defendant eligible to receive the death penalty (such as that the victim was a witness to the defendant’s acts of home invasion and arson). In the latter so-called “non-weighing states,” juries are instructed only to consider, in view of all the aggravating and mitigating factors about the convicted felon’s crime, whether forbearance of the death penalty is not warranted given magnitude of the aggravating factors about the defendant’s crime proved to be true during the guilt phase that are specified in the murder law codified to the statutes as constituting special circumstances rendering a convicted defendant eligible to receive the death penalty.
For additional clarification of the distinction between “weighing” and “non-weighing” jurisdictions, consider the following analogy between the “weighing” and “non-weighing” by a sentencing jury of material facts about the convicted capital felon’s murder, on the one hand, with the “weighing” and “non-weighing” by a certified New York State nurse practitioner of facts material to a decision whether or not to prescribe a certain medication to a patient in her care, on the other, which I think might be helpful. “In some states nurse practitioners are instructed to weigh the mitigating and aggravating effects on the patient before authorizing prescription sleeping remedies, though in other states they are instructed only to consider whether such prescription is contraindicated by the presence of certain material factors about the patient’s condition and circumstances, such as indicated arrhythmias, kidney disease, low blood pressure, or a history of seizures, as noticed by the State Department of Health.”
In Brown v. Sanders, 546 U.S. 212 (2006) [our second reading assignment], the U.S. Supreme Court reversed a Ninth Circuit Court of Appeals decision which ordered habeas corpus relief for a convicted death row felon. The Ninth Circuit opinion reversed a judgment of the California Supreme Court that upheld the defendant’s death sentence relying on the U.S. Supreme Court’s decision in Zant v. Stephens, 462 U.S. 862, at 874 (1983), which applies, in the language of the U.S. Supreme Court jurisprudence, only to “non-weighing states.” According to the Ninth Circuit, the California Supreme Court should have applied U.S. Supreme Court precedent relevant to “weighing states,” for which the legal consequences are quite different.
On review in the U.S. Supreme Court, a majority of the court found that California was not a “weighing state” but rather a “non-weighing state,” the rules for which do not presumptively entitle a convicted capital murderer to a reweighing of the aggravating and mitigating factors by an appellate court reviewing the sentencing jury’s death sentence in order to test for the presence of constitutional error in the jury’s sentence of death.
Brown v. Sanders traces the development of the Supreme Court’s “weighing” and “non-weighing” jurisprudence since Gregg v. Georgia, which had approved revised sentencing procedures introduced not only in Georgia (referred to as a “non-weighing” state in Brown v. Sanders), but also in Florida (referred to as a strict “weighing” state in Brown v. Sanders). The difference between the two sentencing schemes was first clarified in Zant v. Stephens, 462 U.S. 862, at 874 (1983), where the Court explained that “in Georgia, the finding of an aggravating circumstance does not play any role in guiding the sentencing body in the exercise of its discretion [to impose the death penalty], apart from its function of narrowing the class of persons convicted of murder who are eligible for the death penalty.”
The difference thus delineated became important when state appellate courts, both those in strict “weighing states” such as Florida and Arizona, and “non-weighing states” such as Georgia and California, alike, began striking down certain statutorily specified aggravating circumstances of the murder as unconstitutionally “vague,” prone to permit juries that were instructed to consider them during the sentencing phase to indulge in potentially prejudicial “capricious and arbitrary” sentiments, such as in the case of California’s hitherto invalidated eligibility factor couched in inflammatory terms referring to certain special circumstances of the homicide showing that “the murder was especially heinous, atrocious, or cruel.”
Convicted murderers sentenced to death row by juries that had in fact been instructed to consider such eventually invalidated eligibility factors began appealing their death sentences as “skewed,” manifestly in violation of their fourteenth amendment due process rights, so that they should be entitled to a reweighing of the aggravating and mitigating factors by an appellate court on review of their sentencing decision to test for the presence of constitutional error in their death sentence. In “weighing” states such as Florida and Arizona, such “skewing,” and so the potential for constitutional error, is presumptive, since sentencing juries in such states are by law instructed to consider the statutorily specified eligibility factors, including any such factor(s) as may already have been identified by the appellate courts in such states as constitutionally invalid.
In appeals grounded upon charges of constitutional error in the judgment of the trial court, either during the guilt phase of the trial (such as in cases of alleged coerced confessions tainting the evidence relied upon by the fact finding jury), or during the sentencing phase of a capital murder trial (such as in the instant cases of alleged reliance by the sentencing jury on constitutionally invalid aggravating factors improperly skewing the jury’s weighing of the aggravating and the mitigating factors of the murder so as to result in an unconstitutional imposition of the death penalty), the appellate court is called upon to apply the federal “harmless error test” to determine whether the alleged constitutional error in fact resulted in an unconstitutional, and therefore reversible, judgment. In such cases, the State must prove, beyond a reasonable doubt, that the alleged constitutional error in the trial court resulted in merely “harmless error,” in that the judgment since the resulting judgment would have been the same had the constitutional error not been committed. Under the harmless error rule, in the event that the State fails to meet its burden, the judgment must be reversed.
In “non-weighing states” such as California and Georgia, the “skewing” effect of an alleged reliance by the sentencing jury on constitutionally invalid aggravating factors is not presumptive, since in such states the sentencing jury is entitled to consider any and all aggravating circumstances of the murder, not limited to those statutorily specified, or otherwise duly noticed to the jury in advance of the guilt phase of the trial. Hence the sentencing jury might in fact have been entitled, in a “non-weighing state,” to consider the very same aggravating facts about the murder that it might have considered after being instructed to consider certain statutorily specified eligibility factor(s) later identified by the appellate courts in such states as constitutionally invalid.
Preserving the Court’s “weighing” and “non-weighing” jurisprudence, the majority opinion in Brown v. Sanders (2006) limits the power of appellate courts to reweigh the aggravating and mitigating facts in harmless error review, which review not only supplants a power entrusted to a sentencing jury, but increases the costs of successive and sometimes interminable appeals by death row felons. The Court ruled (546 U.S. 212, at 220, 221): “An invalidated sentencing factor (whether an eligibility factor or not) will render the sentence unconstitutional by reason of its adding an improper element to the aggravation scale in the weighing process unless one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances. … As we have explained, such skewing will occur, and give rise to constitutional error, only where the jury could not have given aggravating weight to the same facts and circumstances under the rubric of some other, valid sentencing factor.”
There were two dissenting opinions in Brown v. Sanders (2006). The first, by Justice Stevens, with whom Justice Souter joined, reasoned that the Ninth Circuit was correct, that California was in fact a “weighing state,” not a “non-weighing state,” and so the defendant was entitled to a reweighing of the aggravating and mitigating factors in accordance with the federal harmless error rule.
The second dissenting opinion, by Justice Breyer, with whom Justice Ginsburg joined, reasoned that there was in fact no longer a meaningful decision between “weighing states” and “non-weighing” states, and therefore all appeals grounded upon a charge that the sentencing jury relied on constitutionally invalid aggravating factors improperly skewing the jury’s weighing of the aggravating and the mitigating factors of the murder so as to result in an unconstitutional imposition of the death penalty, were entitled to a reweighing of the aggravating and mitigating factors in accordance with the federal harmless error rule.
Now, for purposes of this Discussion Forum for Week I am departing from my customary practice of avoiding a presentation of questions I am sure of the answer to. I will pretend herein that I know the answer to the questions presented for your consideration, and ask that you CHALLENGE the positions that I will set forth, you’re your best arguments in opposition.
The questions presented are these. First, is it not true that the substantive law imposing the death penalty for capital offenses is rational, and therefore an ethical policy where it is not inconsistent with the public morality of persons within the jurisdiction of the several states that have not abolished it? Second, is it not true that those several states, the states of Alabama and Florida in particular, by denying defendants a unanimous jury vote in order to receive the death penalty in cases in which they are tried for capital offenses, violate the federal constitution’s 6th and 14th amendment guarantee that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed …”?
In this opening post I will first state my own position in reply to the questions presented above, and then offer the students the best arguments I know to exist in opposition to that position.
I think first that the substantive law imposing the death penalty for capital offenses is rational, and therefore an ethical policy where it is not inconsistent with the public morality of persons within the jurisdiction of the several states that have not abolished it, first, simply because it is, in our democratic society, the proportional punishment for a defendant duly convicted of a capital offense for which he is on notice under the public laws. I think also that such punishment is hardly cruel in the sense of contravening the natural and eminently humane, however lacking in divinity, and concomitant with the right of the collective citizen public to exact the strongest measure of crime preventative deterrence in reciprocal retaliation for the defendant’s use of the strongest measure of coercive force, namely murder in the first degree, in opposition to society’s preservation of the public peace and safety. I think that punishment of this kind is hardly unusual in the sense of contravening the original intent of the drafters of the articles of amendment to the Constitution, who neither drafted any promise, nor tendered any anticipation, that future generations of persons, lawyers or courts of law, might regard the accepted, if not worldwide, practice of capital punishment for capital offenses as any less customary than as it was during their own time. I think also that the risk of error in prosecuting accused capital felons with knowledge of assuming the risk of putting at least one innocent man to death, a consequence which I do not underestimate, is however not so great as others which a society should not be in a position to afford to undertake, such as failing to exercise due diligence in the enforcement of laws the neglect of which serves to undermine their crime preventive effect. I think that the irreversible execution of the ultimate measure of punishment hardly exceeds, within the bounds of due process, the degree of harm judged to have been inflicted by the sufficiently vast majority of duly convicted felons, and therefore that in such cases the imposition of a commensurate reciprocal force neither amounts to an excessive demand of submission nor an unreasonable assurance in furtherance of the public peace and safety. In respect to the principles of due procedural regard of accused capital felons subject to the death penalty, however, I would demur that the emergent practice in the states of Alabama and Florida denying such a defendant the right to forbearance of a death sentence in the absence of a unanimous jury verdict irreparably impairs the accused’s right to a trial by an impartial jury as guaranteed by the 6th and 14th amendments, for the only available recourse must be the reweighing by a trial or appellate court judge of the aggravating and mitigating facts about the murder, as proved beyond a reasonable doubt, by the State’s attorney and by the defense counsel respectively, and in such a case either (1) the possibility of the State proving beyond a reasonable doubt that the death penalty was deserved has already been precluded by virtue of the reasonable doubt of a dissenter on the sentencing jury, which reasonable doubt, however small, must survive the non-unanimous determination, or (2) the trial or appellate court judge must presume that the dissenter could not have weighed the aggravating and mitigating factors reasonably of his own accord, in which case the defendant’s right to the forbearance of a death sentence by a duly impaneled trial jury, as guaranteed by the 6th and 14th amendments, has been irreparably impaired.
For purposes of this week’s Discussion Forum, I recommend that you consider the points made in the internet archived Discussion Forum on capital punishment which took place back in 2005 between two University of Chicago Professors Gary Stanley Becker (a Nobel laureate and professor of economics and sociology) and Richard Allen Posner (a retired federal Court of Appeals judge and law school professor) @
https://uchicagolaw.typepad.com/beckerposner/2005/12/more-on-the-economics-of-capital-punishment-becker.html
https://www.becker-posner-blog.com/2005/12/the-economics-of-capital-punishment–posner.html
https://www.becker-posner-blog.com/2005/12/further-comments-on-capital-punishment–posner.html
https://www.becker-posner-blog.com/2005/12/further-comments-on-capital-punishment-becker.html
The proponents of capital punishment have been in demise since the above blogs were posted, just within a year before the Supreme Court filed its five-to-four decision in Brown v. Sanders, 546 U.S. 212 (2006). At that time 38 states had death penalty statutes, of which only 11 were “non-weighing states” in the Supreme Court jurisprudence preserved by a narrow majority of the Court in Brown v. Sanders. Those states were California, Georgia, Kentucky, Louisiana, Missouri, Oregon, South Carolina, South Dakota, Texas, Virginia and Washington State. Though among these “non-weighing states” only the State of Washington has abolished the death penalty, in all ten states have repealed the death penalty since then.
The statement I made above contains but points offered in opposition to each of the respective opinions of Justices Brennan and Marshall in Gregg v. Georgia, 428 U.S. 153 (1976), though admittedly the brevity of my points is likely not sufficient to disprove them. In kind, my statement above offers points in opposition to the serious economic concerns raised by University of Chicago Professors Gary Becker and Richard Posner to the effect that maintaining a system of capital punishment may serve to reduce positive risk-beneficial advantages, given the substantial costs of successive and perhaps interminable appeals, but my points thereto are mainly intended for purposes of rhetorical rejoinder.
Rather I am persuaded that the most compelling arguments in opposition to the death penalty concern the effects racial discrimination and unproductive police investigation, difficulties that tend to burden due process in criminal prosecutions and increase the risk of putting to death men, who, if not innocent, do not deserve to die. Hence, I put a premium on the continued development of procedural safeguards, both in respect to crime detection and principles of criminal procedure.
Here I can also direct your attention to what I consider some of the more compelling contributions to the debate concerning the death penalty debate from the American fine arts. First, from the dramatic arts, there is the Broadway play by John Wexley, called “The Last Mile,” produced by Sam Harris in 1930 (“Animal Crackers,” 1928), dramatizing the inhumanity of life on death row. The lead role of John Mears was first played by Spencer Tracy, an unknown. On tour in Los Angeles the part was played by Clark Gable, also an unknown. Motion picture director John Ford saw Tracy in the New York production and cast him for the prison movie “Up the River” (1930). MGM picked up Gable, who starred with Jean Harlow in “Red Dust” (1932) directed by Victor Fleming.
https://en.wikipedia.org/wiki/The_Last_Mile_(play)
The above play was adapted for the 1930 film by the same name (neither Tracy nor Gable are in it). I recommend that you view the very beginning of the film and then JUST THE LAST TEN MINUTES (pan ahead to exactly 1:00 hour into the film):
https://archive.org/details/TheLastMile
And also, for your consideration, there is the 2016 novel by bestselling author David Baldacci. The novel is about an innocent man on death row named Melvin Mars, whose life appears to be saved by a last minute (but false) confession to the murders by a death row inmate in another state, orchestrated by men in government that eluded police detection of the racist crimes they committed in the 1960s. According to Wikipedia.org, “Baldacci’s novels have been published in over 45 languages and in more than 80 countries, with over 130 million worldwide sales as of 2018.” Here is a book review of Baldacci’s “The Last Mile” by Joan Lunden, on line @
https://www.joanlunden.com/category/33-joan-s-blog/item/1145-the-last-mile-book-review
Please read just the following two pages from Baldacci’s novel, on line @
https://archive.org/details/lastmile0000bald/page/220/mode/2up?view=theater
https://archive.org/details/lastmile0000bald/page/220/mode/thumb
Again, in this opening post I stated my own position in reply to the questions presented above, and then offer the students the best arguments I know to exist in opposition to that position. My position is as follows:
I think first that the substantive law imposing the death penalty for capital offenses is rational, and therefore an ethical policy where it is not inconsistent with the public morality of persons within the jurisdiction of the several states that have not abolished it, first, simply because it is, in our democratic society, the proportional punishment for a defendant duly convicted of a capital offense for which he is on notice under the public laws. I think also that such punishment is hardly cruel in the sense of contravening the natural and eminently humane, however lacking in divinity, and concomitant with the right of the collective citizen public to exact the strongest measure of crime preventative deterrence in reciprocal retaliation for the defendant’s use of the strongest measure of coercive force, namely murder in the first degree, in opposition to society’s preservation of the public peace and safety. I think that punishment of this kind is hardly unusual in the sense of contravening the original intent of the drafters of the articles of amendment to the Constitution, who neither drafted any promise, nor tendered any anticipation, that future generations of persons, lawyers or courts of law, might regard the accepted, if not worldwide, practice of capital punishment for capital offenses as any less customary than as it was during their own time. I think also that the risk of error in prosecuting accused capital felons with knowledge of assuming the risk of putting at least one innocent man to death, a consequence which I do not underestimate, is however not so great as others which a society should not be in a position to afford to undertake, such as failing to exercise due diligence in the enforcement of laws the neglect of which serves to undermine their crime preventive effect. I think that the irreversible execution of the ultimate measure of punishment hardly exceeds, within the bounds of due process, the degree of harm judged to have been inflicted by the sufficiently vast majority of duly convicted felons, and therefore that in such cases the imposition of a commensurate reciprocal force neither amounts to an excessive demand of submission nor an unreasonable assurance in furtherance of the public peace and safety. In respect to the principles of due procedural regard of accused capital felons subject to the death penalty, however, I would demur that the emergent practice in the states of Alabama and Florida denying such a defendant the right to forbearance of a death sentence in the absence of a unanimous jury verdict irreparably impairs the accused’s right to a trial by an impartial jury as guaranteed by the 6th and 14th amendments, for the only available recourse must be the reweighing by a trial or appellate court judge of the aggravating and mitigating facts about the murder, as proved beyond a reasonable doubt, by the State’s attorney and by the defense counsel respectively, and in such a case either (1) the possibility of the State proving beyond a reasonable doubt that the death penalty was deserved has already been precluded by virtue of the reasonable doubt of a dissenter on the sentencing jury, which reasonable doubt, however small, must survive the non-unanimous determination, or (2) the trial or appellate court judge must presume that the dissenter could not have weighed the aggravating and mitigating factors reasonably of his own accord, in which case the defendant’s right to the forbearance of a death sentence by a duly impaneled trial jury, as guaranteed by the 6th and 14th amendments, has been irreparably impaired.
And again, the questions presented are these. First, is it not true that the substantive law imposing the death penalty for capital offenses is rational, and therefore an ethical policy where it is not inconsistent with the public morality of persons within the jurisdiction of the several states that have not abolished it? Second, is it not true that those several states, the states of Alabama and Florida in particular, by denying defendants a unanimous jury vote in order to receive the death penalty in cases in which they are tried for capital offenses, violate the federal constitution’s 6th and 14th amendment guarantee that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed …”?
State the grounds (the evidence and reasons) for holding your position CLEARLY AND CAREFULLY. You must answer both the general and specific questions I have presented in this opening post. I expect that your initial post should be at least 250 words in length but not more than 500 words in length.
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