I don’t feel very good about this country this morning, and as so many of us are I’m thinking of how Troy Davis was hustled off this mortal coil by the State of Georgia without a lot of thought of what it means to execute the innocent.
And given the choice, I’d rather see us abandon the death penalty altogether, for reasons that must, at this moment, seem self-evident; that said, it’s my suspicion that a lot of states are not going to be in any hurry to abandon their death penalties anytime soon now that they know the Supreme Court will allow the innocent to be murdered.
So what if there was a way to create a compromise that balanced the absolute need to protect the innocent with the feeling among many Americans that, for some crimes, we absolutely have to impose the death penalty?
Considering the circumstances, it’s not going to be an easy subject, but let’s give it a try, and see what we can do.
Let’s Fix An Error Dept.: Apologies are in order, because in our last story we identified The Riverside Church in Manhattan as the place where George Carlin learned to be Catholic – and that could not have been more incorrect. Bad research was the culprit here, and it’s something that we’ll obviously be working to improve. So, once again: sorry, and my bad.
Now if all the states want to limit the imposition of the death penalty to just the guilty (and after what we just saw in Georgia, that’s no longer 100% certain), one way you could do it would be to make it a lot harder to prove guilt – and that’s what we have in mind for today’s proposal.
As you may recall, we convict today with a “burden of proof” that is described as “guilt beyond a reasonable doubt”; as we now know, it is possible to prove guilt, beyond a reasonable doubt, even when there’s a whole lot of reasonable doubt to be found.
In Davis’ case, he was given a chance on appeal to prove his innocence, and despite this conclusion from the Judge hearing the case…
“Ultimately, while Mr. Davis’s new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors…”
…Davis was still executed.
So the way I would get at this problem would be to change the burden of proof in these cases: if you want to execute someone who is facing an aggravated murder or other capital charge, instead of “guilt beyond a reasonable doubt”, I would require “guilt beyond all doubt”.
If you can’t get to guilt beyond all doubt, but you can prove guilt beyond a reasonable doubt, then you could impose no sentence harsher than life without parole.
If this proposal had been in effect in Davis’ case, there could have been no execution after he argued that he was denied the effective assistance of counsel, because that would have erased “all doubt”; after that he would have had the rest of his life to demonstrate that he was wrongly convicted.
There are going to be a few reasons people might not like this proposal, and I’ll try to address some of them briefly:
Right off the bat, many will complain that because of the new burden of proof it will be virtually impossible to have executions at all; I would tell those folks that if that were to occur…then the system is working. The entire purpose of this plan is to make executions an extraordinarily rare occurrence and to move just about everyone on Death Rows nationwide to a “life without parole” future.
Beyond that, many will say that capital punishment is morally unacceptable under any circumstances, and to those folks I would respond that y’all make a pretty good point…but at the moment there are a lot of Americans who do not hold that moral position – and they have strong feelings too – and unless we can move them to a different point of view, then the best chance we have to prevent the innocent from being executed is to find some sort of compromise like this one.
(Don’t believe me about that “strong feelings” thing? How many of the readers here would be OK with the death penalty for Osama Bin Laden, if he were proved “beyond all doubt” to have been the person behind 9/11?)
A similar line of thought is expressed in the idea that we are seeing more and more voters who do oppose capital punishment, and with a bit of patience, this problem will go away.
After what happened to Troy Davis, I think there’s more urgency now than there was in times past, and that’s because we now see that at least one State will quickly kill a prisoner in order to “clear the case”, suggesting to me that patience is not as good an option as it was before.
Finally, I suspect many will feel that the effort to pass a proposal like this one would distract from the effort to end the death penalty, which is, again, a pretty good argument.
To those folks I would respond that we may get some states to end the death penalty today, but there are a lot of other states that are not going to want to give up the death penalty for some time to come (remember the people who cheered Rick Perry’s execution record?), and if we aren’t going to be able to end the death penalty completely, then I think we have to offer some sort of compromise; a compromise based on the concepts of “killing the innocent isn’t The American Way” or “you could still execute Osama” could appeal to voters who simply won’t give up on the death penalty altogether.
So that’s what we have for you today: even though I personally would prefer that we end the death penalty and just go to life without parole for all these crimes, I don’t think we’re going to achieve that in a lot of states; with that in mind I’m proposing a compromise that would protect the innocent by ending virtually all executions, even as it allows an extraordinarily difficult to reach exception that could satisfy those who absolutely do not want to see the application of the death penalty come to an end.
It’s an imperfect compromise, I’ll admit – but in a big ol’ swath of America that runs from roughly Florida to Idaho, it may be the best compromise we can make right now, and right now, in those places, that might have to be good enough.
Entirely Off The Subject Dept.: We are still trying to get signatures for the petition to change the name of Manhattan’s W 121st St (one block from Seminary Row) to George Carlin Street, and we need your help; you can sign right here. The goal is to reach 10,000 signatures by Monday, so…get to it.
…but this has become a national discussion – and the feds did prosecute a death penalty case out of mass in ’09.
it is reasonable to assume that we can achieve “beyond all doubt” with DNA evidence and even confessions such as in the case of Lawrence Russell Brewer who confessed to the horrific murder of James Byrd Jr. While I too would like to see the death penalty completely abolished, I can live with it in this country if it’s used carefully. The murder of Troy Davis is not something I am likely to get over any time soon, and I will never have a positive thing to say about the State of Georgia. It’s an ugly place, filled with hatred and acceptance of the killing of people who could be innocent.
Chelm, in Jewish folklore, is the village of fools, who believe themselves wise. It is also a real city in Poland, but that’s besides the point.
Regardless of your position on the death penalty, having two parallel systems of punishment for varying certainty of guilt, seems, to me, a terrible idea. “We can’t prove for certain that you killed the guy, so we’ll just let you rot in jail for the rest of your life.” Or, extrapolating to lesser crimes, “The evidence linking you to the bank robbery was only circumstantial, so we’re giving you two years, instead of ten.” It would leave lingering doubt over those we gave lesser punishments to and cast the whole process into a cloud of uncertainty.
Our current system, for the most part, treats guilt or innocence as a binary, either you committed the crime or you didn’t. The truth, of course, is there’s always some degree of uncertainty. The trail procedure, the rules of evidence, etc. are all designed to reduce this uncertainty, but it will never eliminate it. The question is what do you do in the edge cases. The traditional answer of “better that ten guilty persons escape than that one innocent suffer” leaves many people unsatisfied, in both directions.
I suspect that at least for you, as with many people, the number you would use in Blackstone’s formulation, (as Wikipedia calls it), varies depending on the magnitude of the punishment. If the punishment is death, hanging 50 guilty men may not offset the death of the one innocent. Life imprisonment, maybe 20. If the punishment is several years in prison followed by release and rehabilitation, maybe that’s not so terrible and having an innocent person suffer that might be worth preventing six or seven criminals from getting off scot free. If it’s just a few hours of community service, who cares?
This is one of the reasons why I oppose the death penalty and life imprisonment. We’ll never be able to design a justice system that is perfect and It reduces the price of being wrong.
In Norway, the maximum sentence is 21 years followed by an evaluation of whether the criminal is safe to release. With the recent mass murder there, the thought that someone who killed 77 people, mostly children, could be released after just two decades makes people squeamish.
The thought of letting a mass murderer, whether it be bin Laden or Breivik, get off with a lighter punishment appalls many of us. In this case, the solution would be to have a different punishment for mass murder. It is the magnitude of the crimes, not their blatantness, that awakens our urge for vengeance. Such crimes are rare enough that if we reserve the death penalty exclusively for them, there would almost never be doubt of the accused’s guilt.
…between life imprisonment and the death penalty is that the former can be somewhat undone. Yes, the person has lost years of his life that no amount of compensation can bring back, but at least you can let him walk free. Death of course cannot be reversed.
the reason i’m coming forward with this proposal is unrelated to blackstone, wise as he was…instead, it’s a more practical: there is no way to undo an error in the application of the death penalty, but the politics of banning the death penalty are such that a ban may be impossible in many states.
so if we can’t get to a ban…what would be the next best option?
as to having a “greater” punishment for mass murder: the problem for troy davis wasn’t the degree of punishment, it was how the death penalty is applied even when there are significant questions regarding innocence.
my own attitude, as i said at the top of the story, is to ban the death penalty, but we have to acknowledge that there is a lot of support for the practice; we also have to recognize that the supremes are unlikely to get all 8th amendment on us and impose a ban.
that’s how we got here today; the big take away i would offer is that any sentence can be undone and remediations made – unless it’s a death sentence, and that’s what i’m trying to fix in an admittedly imperfect way.
I guess, for me it doesn’t do much as a compromise, which is why I proposed the death penalty for mass murder only as an alternative. Of course, regardless of punishment, issues about the fairness of the justice system still remain. If Tory Davis had been sentenced to life imprisonment, would that be much better? The questions of his guilt would still remain, but the case would have gotten much less attention.
i’m addicted to coke, a littke bit, and they’re based in atlanta…and i’m not sure i can switch to pepsi.
is not going to be noticed. You (or I) would have to create a protest and ask many people to give up Coke for a week or some such thing. If you really wanted to do that, instead of turning to Pepsi, you could try a generic brand. Probably a better thing to do anyway is to write a letter to corporate telling them exactly how you feel about the what the State of Georgia did to Troy Davis, and let them know you’ll be talking about it. Tell them that it’s up to the people of the state to change the laws of the state and that it’s about time that state-sanctioned murders came to an end.
abolished. Plain and simple. Not popular. Perhaps not possible. The only way to deal with it is to confront proponents and their arguments head on.
In a different world, like the Old West of the movies, villains are clearly guilty and deserve to die and those affected or their agents get to kill them. Real life isn’t like that. Rick Perry isn’t Dirty Harry.
If the death penalty is applied, innocent people will be executed. Period. DNA evidence won’t always be available to prove otherwise. To support it means we have to accept a certain amount of error. If two percent of all those executed are innocent, is that acceptable? How about 10%? 20%?
If you’re poor or black, or even more unfortunately, poor and black, you won’t get a fair sentencing hearing. If racism is okay, I guess there’s not a problem.
Racism and the execution of the innocent are compelling enough reasons to oppose death penalty advocates. Calling out proponents on those two issues alone should do damage. The truth is on our side. Time and volume are the issue now.
https://fbcdn-sphotos-a.akamaihd.net/hphotos-ak-ash4/317066_273770889313839_100000427896951_990796_2142988473_n.jpg
and failed. Don’t know how I turned it into a link. I didn’t even try. Anyway, as horrible as this photo is, it’s the truth. They had the power to stop it and they didn’t. If we can’t depend on the judicial system to defend justice, then we must abolish the death penalty on a national level.