Reading about all those innocent people let go from death row (it’s dozens and dozens by now, isn’t it?), it’s clear that part of the reason why the death penalty is a bad thing is that it is virtually certain that it kills innocent people.
Whether you are a pro or anti-DP advocate, basic knowledge of math tells you this. If dozens of people have been released from death row after supposedly being convicted as guilty beyond reasonable doubt, it seems almost impossible to believe that they haven’t executed individuals where the evidence to prove they were innocent wasn’t there (but they were). Sure, we could argue all day about specific shady cases where the person executed might have been innocent, but the point remains, it’s gotta have happened a few times.
Anyways, for people like the guy who blew up a federal building, and the guy who blew up a bomb at the Boston Marathon, the cops caught the guy with the explosive residue still on his hands, the bomb making equipment in his house, and the receipts for the bomb materials still in his billfold, so to speak.
So, in those cases, in order for the defendant to be innocent, there would have needed to be a conspiracy involving dozens of unrelated people or intervention by an entity with supernatural powers. So I propose a new tier of proof : guilty short of an act of god.
The state can kill those people. Everyone else gets a pass.
I’m a little worried that such a definition might make it more difficult for someone to appeal their conviction. I guess that would be the trade-off: you have to meet an even higher burden of proof…but the sequence of appeals would be truncated and the execution would happen in only five years, not thirty.
If executions are going to happen anyway, this is a trade-off I guess I could accept. But I’d be watching it very closely, and would holler like anything if the safeguards seem to be slighted.
Personally, I’m absolutely against execution, always, in any form – but in terms of “the art of the possible” I can see this as being an improvement over the current state of affairs.
Doesn’t this new level of proof make it harder to convict murders at the ‘beyond a reasonable doubt’ standard? Not shooting for the ‘short of an act of god’ level is the prosecutor admitting to the jury that they have at least some doubt.
One plus I could see is that justice system would have to take a look at how reliable various kinds of evidence are in the real world (at a minimum to determine what kinds are needed for the ‘short of an act of god’ standard). The number of bad convictions discovered by DNA testing certainly suggests that a lot of evidence juries found convincing wasn’t all that good. And that it shouldn’t be trusted in any trial (not just those for murder).
I’m strongly, but not absolutely, against capital punishment. I’m sure there are vicious killers worthy of it, but I seriously doubt the ability of our justice system to accurately identify who they are. Part of the problem is our culture of blood-thirsty prosecutors who are in the business for the blood, not for justice. See, e.g., America’s Deadliest Prosecutors: The last stubborn, bloodthirsty devotees of the death penalty, Robert J. Smith, Slate, May 14, 2015.
If I’m ever on a jury in a capital case (or maybe even a serious not-so-capital case), my personal standard for “proof beyond a reasonable doubt” would be extremely high. For example, I would be skeptical of anything the defendant supposedly said during his interrogation unless I heard an audio recording of the whole interrogation played in court, because I don’t trust the methods they use to extract self-incriminating statements from defendants. I wouldn’t give credence to a signed “confession” unless the defendant took the stand in court and confessed there, so that I could hear him with my own ears.
Of course, I would never get seated on a capital case.
I think this is faulty reasoning right here. It’s like saying “Because a fisherman had to throw back some fish that were below the size limit, basic math tells us that he was illegally keeping some small fish.”
Part of the current death penalty procedure includes additional court processes and appeals so that you’re not executed until all of your options to change the sentence have expired. So either innocents being set free or guilty parties getting reduced sentences is an intentional feature of the system.
I’m not going to argue that this system has proven infallible in real life, but basic math tells us nothing like what you think it does.
I’ll also say that I don’t think setting a higher standard of proof will do anything. “Beyond all reasonable doubt” is a very high standard already. It means that no rational person will ever convict based on correction application of the evidence.
Let’s parse that reasoning, because I think you’ll find that wrong convictions came from
Irrational persons. For example: racists.
Poor evidence. For example: forensic techniques that haven’t been properly verified. Or legal representation from someone who does not mount a proper defense.
Both of these points could potentially be addressed in different ways, and I think whatever conclusions you came to would strengthen the entire judicial system, not just death penalty cases. I’m actually a lot less worried about handful of death penalty cases than I am about millions of drug-related sentences.
Sure, call it “I’m willing to stake my freedom and career on it”. If the judge isn’t willing to spend five years in prison if the convict is later found to be innocent, he isn’t sufficiently sure to sentence him to death.
Guilt/innocence is completely, utterly, totally and all-encompassingly irrelevant to my feelings about the morality of the DP. So this new standard of proof does nothing for me.
As long as his defense attorneys spend five years if he’s not.
Or else we could preserve the idea of an impartial judiciary, which I would prefer.
A higher standard of proof wouldn’t really achieve anything - as MrDibble says, many anti-DP folks don’t care about guilt or innocence. It would just be one more thing to appeal. Your example of the Boston Marathon bomber is clarifying - there is no doubt about his guilt, but that will make no difference in the number of length of the endless appeals that are going to be filed if he is sentenced to death. Interestingly, if he gets LWOP I suspect there will be substantially fewer appeals. Which illustrates some of the problem with the proposal of the OP - people who oppose the death penalty aren’t as interested in acquitting the innocent as they claim - they just don’t want the DP, and guilt or innocence is just another tactic.
The system is working well enough not to need changing - the Innocence Project, for instance, has never cleared anyone who was executed, and since the DP was re-instituted back in the seventies it has never been established beyond a reasonable doubt that an innocent person was executed. And, as I have argued several times, the number of people murdered by those who were not executed is much larger than the number of possible innocents who were executed. So, overall, the DP spares innocent lives, much more and much more obviously, than its abolition.
What special level of proof would we need for life prison terms, given the likelihood of contracting hepatitis C, HIV or other potentially fatal diseases, or being killed by fellow inmates? Should it be more than for a 10-year stretch, or should the level of proof vary based on what kind of prison you’re sentenced to?
If the chief concern is that innocent people are getting convicted of crimes a higher burden of proof isn’t the answer, we need a better system of criminal justice. On paper ours is actually pretty robust, especially in terms of the rights of the accused. In practice, due to long standing “glitches” in the system a lot of (especially poor) defendants fall through a lot of cracks and while they receive their due under the “letter of the law” it happens in such a way that they’ve really not be properly handled or protected.
Canada had a dramatic revision of its criminal justice system in recent history to prevent wrongful convictions, and I believe since that time the incidence of them has been nearly zero. We should look at more comprehensively changing how our criminal justice system works, not simply adding a higher burden of proof.
The reality is for a host of reasons the death penalty does not work for America and should be abolished. Personally I think that ancient concepts like equity before the law often require death for justice to have been served, and that further as a humane society euthanizing those who are so socially dysfunctional that they cannot exist in our society and who can only safely be imprisoned for life is actually a far fairer and better outcome than life in a cage, but for a lot of practical reasons the death penalty in America is a dead end street policy wise.
Bear in mind that there are already several additional hurdles associated with imposing the death penalty. Certain added elements of the crime must be shown, and various extra mitigating factors are permissible in determining the sentence.
Why stop at the judge? How about sentencing the jury to five years, as well? How about convicting the district attorney for bringing a murder charge in the first place? And the grand jury for returning the indictment?
And while we’re at it, if the defendant IS convicted, how about we send the defense attorney to jail for fighting for an obviously guilty person?
Wouldn’t it simply be the prosecutor admitting that there may be unreasonable doubt? Like OJ may or may not have killed Nicole and Ron, but a secret cabal of assassins might have framed him after Nicole stumbled upon their oxygen stealing device that the Neptunians had them build?
That’s my position as well. I’m not anti-DP simply because we don’t have a perfect system. I’m anti-DP because I don’t think we should kill people needlessly. Period. I think that covers a lot of anti-DP folks on this MB.
Because the judge is a specialist in the field and is the one who decides the sentence that is handed down. If any judge ever serves prison time for this, it is because that judge was so sure of an innocent man’s guilt that he sentenced him to death. If he isn’t that sure, he should hand down a sentence that can be mitigated if future evidence arises to prove him innocent.
The jury are random schmoes being forced to perform a duty potentially far outside their usual skillset.
“We should find out whether he actually did it” is not the same as “I am so sure that he did it that we should punish him in a way that cannot be mitigated once he starts serving his sentence.”
The defense attorney fighting for his client is necessary for the trial to function. Even if he is obviously guilty, the way you establish that he is obviously guilty is to look at the best defense he can muster and still find it wanting.
One problem with the death penalty in the U.S. is that black defendants are more likely than whites/nonblacks to get it, for the same crime. That has nothing to do with proof level.
Which is why the jury faces no punishment either, and the judge only faces punishment if they wrongly sentence the defendant to the harshest penalty available.
If there is any doubt in the judge’s mind that the defendant is guilty, they should only be sentenced to life without parole. If that means the death penalty is only used once in a blue moon, so be it - even as a supporter of the death penalty, it is far better to underuse it than overuse it.
Except it’s not the judge who determines the sentence, it’s the jury. The accused has a constitutional right to have his sentence determined by the jury, which has the constitutional duty to decide if the accused will be executed.