If Al Shades is not death row eligible, you know something is wrong.
[quote]hspder wrote:
Personally, I believe the potential (and remember – it’s potential, since even if you live in a Death Penalty state and are committing a 1st degree murder, you might not get caught and sentenced to death) penalty makes little difference to someone just before the act. [/quote]
I completely agree with this – see what I wrote above. A rational probability calculation would result in someone realizing he would face only a very small chance of actually being executed.
Then again, people are notoriously bad at estimating probability…
[quote]hspder wrote:
However, we could discuss the deterrent effect of the Death Penalty until we turned blue (no pun intended). The fact is there is absolutely no scientific way of measuring that effect, since the number of variables is immense and the values are constantly changing – population changes, the reasons for murder change, judges and juries change, etc. Each of us can have their opinion but we need to admit it’s not based on any fact – it’s just a “gut feel”.[/quote]
That’s probably right – though it’s at least interesting to watch the various analyses become more and more complex as they attempt to account for more and more factors. But given estimation, self-reporting and use of proxies, it’s like attempting long-term economic forecasting…
I was just tired of people stating with certainty that the death penalty has no deterrent effect.
[quote]hspder wrote:
The reason I am firmly against the death penalty is completely different – I’m simply not willing to accept the chance – the very REAL, PROVEN chance – that a state kills an innocent man or woman. We’re not omniscient. We are not supposed to play God. Judges and Juries make mistakes. The appeal process cannot ever be long enough to prevent a string of unfortunate events that lead to somebody innocent getting the needle. Contrary to the discussion about the deterrent effect of the death penalty, nobody can argue that states have killed innocent men and women. And I have a problem with that. A big one. And whatever may be the deterrent effect – I feel it’s not worth it, because there are other ways – many of them scientifically proven to be very effective – to deter murder, that do not involve the risk of killing an innocent person.
[/quote]
Yes, there will be that chance. Though with the appeals and the legal rules that strongly favor the defendant, the odds are pretty long. And getting longer all the time for new convictions, especially with the latest technological developments.
But don’t you think it’s interesting that as technology gets better and better – particularly DNA analysis – causing the probability of actually convicting someone wrongfully to get closer and closer to zero, it seems that people are increasingly basing opposition to the death penalty on that reasoning?
Also, I should disclose that I have a personal connection to a Kansas case in which the defendants were sentenced to death – The Carr Brothers case in Wichita, KS – if you want to read about it I’m sure you can find the details on Google. Suffice it to say that I wish Texas were in charge of sending them straight to the chair.
[quote]nephorm wrote:
- I have become less and less in favor of the death penalty. My major gripe with it is that, unlike Al Shades, the rest of the world is not in possession of “infallible logic.” We make mistakes. Quite a few people are convicted who ought not have been. Further, I would contend that is a fundamental principle of American law that we would rather let a guilty man go free than have an innocent man go to prison. Ostensibly, juries must find a defendant guilty “beyond a reasonable doubt,” and yet we all know that isn’t necessarily true. Perhaps in a post 9-11 world, “beyond a reasonable doubt” has become quaint; perhaps my understanding assumes that crimes are sufficiently innocuous that such a high standard of proof poses no real threat to society.
[/quote]
Contrarily, I’ve become more and more in favor of the death penalty because I believe that, as I stated above, technology is making the probability of convicting the wrong person for a murder approach closer and closer to zero.
I think it does this in two ways. Firstly, the actual technology makes analyzing blood and other samples much more precise, and the odds of misidentifying someone based on that evidence are miniscule. The defense attorneys are usually left making a ludicrous argument about a police conspiracy against the client, or messing up statistics (for both, see O.J. - but hopefully juries now know a little more about DNA).
Secondly, I think that in cases in which DNA evidence is absent, I think that juries will have come to expect the level of certainty provided by DNA evidence, and will be very critical of a case that doesn’t have such evidence. Only a case such as Scott Petersen’s, with such a mountain of circumstantial evidence, should result in a conviction in such a climate.
During law school I was exposed to a lot of anti-death-penalty stuff, and it always left me thinking that the authors overstated the case – particularly when they described people who were taken off death row due to procedural technicalities as being “exonerated” or as “innocent people” wrongly convicted.
[quote]BostonBarrister wrote:
Contrarily, I’ve become more and more in favor of the death penalty because I believe that, as I stated above, technology is making the probability of convicting the wrong person for a murder approach closer and closer to zero.
[/quote]
I disagree, because I think that as juries come to regard DNA evidence as more of an automatic, infallible guide, the probability of error is actually increased. I fear that juries will view one piece of evidence to the exclusion of the rest.
http://www.findarticles.com/p/articles/mi_m1282/is_17_54/ai_90888288
This article gets to my point on the statistics that are tossed around about “innocent” people taken off death row and “exonerated”.
http://www.findarticles.com/p/articles/mi_m1282/is_17_54/ai_90888288
Bad List: A suspect roll of Death Row ‘innocents’
by Ramesh Ponnuru
September 16, 2002
A terrible injustice was done to Ray Krone. In 1992, he was sentenced to death for the murder of Kim Ancona, a Phoenix cocktail waitress. He spent three years on Death Row before his first conviction was overturned. On retrial, he was sentenced to life in prison. All the while, he maintained that he was innocent. Eventually, DNA analysis proved that he was telling the truth: Another man had committed the crime. In April of this year, Krone was freed.
In Washington, D.C., Sen. Russ Feingold marked the occasion. Krone, the Wisconsin Democrat said, was “the hundredth person to be released from Death Row in the modern death-penalty era” – since, that is, the Supreme Court allowed the practice to resume in 1976. “How many innocent Americans today sit in their prison cells wrongly accused, counting down the days until there are no more?” Feingold asked. “There have now been 100 exonerations and 766 executions since the early 1970s. In other words, for every seven to eight Death Row inmates executed by the states or federal government, one has been found innocent and released from Death Row. . . . One risk, one error, one mistake, is one too many. But 100 mistakes, proven mistakes, qualifies as a crisis. And a crisis calls for action.” Feingold wants a national moratorium on the death penalty. Failing that, he favors his colleague Patrick Leahy’s Innocence Protection Act, which backers say would improve the administration of the death penalty.
Krone’s case is certainly disturbing. But have there really been 100 such “proven mistakes,” as Feingold put it, in the last quarter century? The senator, like the many others who make this claim, relies on the “Innocence List” compiled by the Death Penalty Information Center, a group that opposes capital punishment. According to its list, the total number of people who spent time on Death Row but were later exonerated is now up to 102.
But most of the cases on the list are very different from that of Ray Krone. Nobody is going to make a TV movie anytime soon about Jonathan Treadaway, another of DPIC’s “Cases of Innocence.” Treadaway was convicted in 1975 for sodomizing and murdering a six-year-old boy. His palm prints were found outside the victim’s bedroom window, and he said that he could not explain their presence. Pubic hairs on the victim’s body were similar to his.
But the Arizona supreme court reversed his conviction. The trial court had admitted evidence that Treadaway had committed sexual acts with a 13-year-old boy three years before the murder. The court held that to be irrelevant without “expert medical testimony” that this act demonstrated a continuing propensity to commit such acts. The court also ordered that at Treadaway’s retrial, his statements about the palm prints not be admitted. Treadaway had made those statements voluntarily, but without being advised of his Miranda rights or waiving those rights. Finally, the court excluded some evidence that three months before the murder, Treadaway had been found naked in a young boy’s bedroom trying to strangle the boy.
Treadaway didn’t get off Death Row because it was proven that the cops had the wrong man. Technicalities spared him.
Jeremy Sheets, another of DPIC’s “innocents,” got off Death Row because the key witness against him couldn’t testify. That was his best friend, Adam Barnett, who told the police that the two of them – both white men – had been angry about all the white women they knew who were dating black men. To get even, they kidnapped and raped a black high- school student. Barnett said that Sheets had then stabbed her to death. Barnett committed suicide in jail. Sheets was sentenced to death on the basis of Barnett’s taped confession (and Sheets’s own testimony, which the jury found unbelievable). The Nebraska supreme court reversed his conviction because Sheets’s lawyer had not been able to cross-examine the dead Barnett. Sheets walked.
The lead police investigator in the case called the result a “travesty,” but it was probably the right legal call. What it wasn’t was an “exoneration” of Sheets.
John Henry Knapp confessed to the arson-murder of his children and then recanted the confession. He was tried three times. Twice juries hung 7- 5 for conviction; in between, he was found guilty and sentenced to death. Eventually the case was settled with a plea bargain. He’s on the “Innocence List,” too.
In twelve of the cases on DPIC’s list, DNA evidence indicates that the men on Death Row should never have been put there. In another 20 or so, there is other evidence to the same effect. In around 32 cases, then, it has been proven that men on Death Row were innocent of the crime charged. (That’s out of more than 7,000 people on Death Row in the modern era.)
No such thing has been proved in the other cases. In some of them, the details are sketchy. Some death sentences were reversed in unpublished opinions. Some cases had to be abandoned because evidence deteriorated with the passage of time. In other cases, people who had participated in murders were removed from Death Row because it was not known whether they had actually pulled the trigger or struck the fatal blow themselves. They were hardly “innocent.” There are at least as many Treadaways as Krones on the list. All of them are treated by DPIC, equivalently, as “innocent” and “exonerated.”
Richard Dieter, executive director of DPIC, says that former Death Row inmates deserve a presumption of innocence when the charges against them are dismissed. They are indeed entitled to a legal presumption of innocence (in general: John Henry Knapp isn’t). But the list leads people to think that innocence has been proven when the most that can be said is that the legal system cannot establish guilt beyond a reasonable doubt. Most of the people who refer to the list clearly have no idea that many of the “innocents” on it are probably guilty.
There’s another problem with the “Innocence List.” It’s meant to be a critique of the death penalty as it’s applied today. But the list includes death sentences that were imposed before today’s system emerged. Some on the list got off Death Row because the Supreme Court invalidated the death-penalty statute under which they had been sentenced.
The list is nonetheless widely cited as evidence that the risk of executing the innocent is high. Sen. Leahy wrote earlier this year that “nearly 100 innocent people have been released from Death Row since 1973.” The New York Times, the ACLU, and George Will have relied on DPIC’s list. It has even been cited, indirectly, at the Supreme Court: The Los Angeles Times did a story on Krone as the hundredth exonerated Death Row inmate, and Justice Stephen Breyer referred to the story in his opinion in a death-penalty case.
Another piece of misinformation is widespread in the death-penalty debate: the claim, from a study led by Columbia University professor James Liebman, that death-penalty cases have a “68 percent error rate.” It turns out that the study counts it as an “error” any time a death sentence is reversed at any stage of appellate review – even if the sentence is ultimately upheld. California was found to have an 87 percent “error rate,” but half of it could be accounted for by the fact that for several years the chief justice of the state’s supreme court was an opponent of the death penalty who kept issuing reversals. In most of the cases in the study, moreover, it was the death sentence that was (sometimes temporarily) overturned, not the murder convictions.
The “over 100” and “68 percent” figures are being used to persuade people that the death penalty is being badly administered and needs to be reformed, if not abolished. The leading reform on offer is Leahy’s Innocence Protection Act. In yet another distortion, media coverage of Leahy’s bill mostly concerns its provisions to make it easier for Death Row inmates to obtain DNA tests that might prove their innocence. But there isn’t much controversy about DNA testing. Most states that have capital punishment have been increasing their use of it. “If Leahy’s bill were only about DNA, it would have passed three years ago,” says one Senate Republican aide.
The sticking point in the debate is that Leahy’s bill would force states to reconfigure their systems for providing Death Row inmates with lawyers. Either states would have to comply with onerous federal mandates, or private organizations that represent such inmates would be given federal money. Opponents of the bill assume that the mandates were designed to be so onerous that states would go for Option Two: taxpayer funding of anti-death-penalty activists.
People facing execution ought to have competent counsel. But there’s no crisis calling out for a federal takeover of the area. In most of the 32 cases in which the wrong man faced execution, it wasn’t the result of defense lawyers’ mistakes. It was the result of gross misconduct by prosecutors and police, or of overreliance on the testimony of jailhouse snitches. Funding 50 miniature versions of the Death Penalty Information Center won’t solve those problems. It may, however, lead to some people’s release from Death Row – whether or not they’re guilty - - so that they can be added to the list.
Another good one:
http://www.nationalreview.com/ponnuru/ponnuru200311060839.asp
November 06, 2003, 8:39 a.m.
Penalty Box
George Will gets capital punishment wrong.
by Ramesh Ponnuru
It hasn’t caused much of a stir, but George Will just came out against the death penalty. In a column in 2000, he had said that the “careless or corrupt administration of capital punishment” may be “intolerably common,” which would leave open the possibility that the solution was to improve the administration of it. But in a column last week ( George Will: Biography and Latest Articles ), Will concluded that “the ultimate punishment makes reason. . . ultimately turn away.” He argues that the flaws in the administration of the death penalty ? the mistakes, that is, that can lead to the execution of innocent people ? are ineradicable so long as fallible human beings are the administrators. Conservative columnist Dennis Prager has written a response to Will, but otherwise he has been greeted with silence. It seems to me that when one of the nation’s foremost conservative journalists turns against the death penalty, that event deserves a little more attention than it has been getting. Attention, and scrutiny.
Will is influenced by Scott Turow’s book Ultimate Punishment ( http://www.nationalreview.com/redirect/amazon.asp?j=0374128731 ). Turow was heavily influenced by his review of the administration of capital punishment in Illinois. That state has seen a disproportionate number of cases in which truly innocent people have been sentenced to death but ultimately exonerated. (I’m using the terms “innocent” and “exonerated” in their everyday senses, unlike some anti-death-penalty activists.) But that’s the problem: Illinois, and specifically Cook County in the era of the first Mayor Daley, is not representative of the nation at large today. The kind of misconduct by police and prosecutors that was involved in many of the troubling cases from that time and place is, thankfully, rare.
You could say that the Cook County cases nonetheless strengthen the argument for abolishing the death penalty. Abolition, the argument might run, would limit the damage that corruption can do. That argument assumes that something like Daley’s Chicago could reemerge in American life. That seems to me unlikely, but reasonable people could certainly disagree. But the more obvious response is to enact reforms to the death penalty that would have avoided the worst cases. (An example would be keeping the death penalty from being imposed based mainly on testimony from jailhouse snitches.)
No such reforms would, however, make the possibility of error in the application of the death penalty go completely away. Is Will’s position that any probability above zero is too high? We are not far from zero now. It is true that we have come close to executing innocents, as Will notes. But it is also true that there are no proven cases in which we have actually executed innocents in the last century.
If the death penalty is justified on the ground that deters murder or imposes an appropriate degree of retribution, then the rare execution of innocent people is an unavoidable side-effect of pursuing that worthy end. The state is killing innocent people as a side effect, that is, of pursuing justice or deterring crime. Such awful side effects happen all the time. Assuming, for example, that a speed limit of 65 leads to more deaths than a speed limit of 25, we would not think that this fact settles the question of what the government’s policy should be.
I’m not sure that the death penalty is justified, even for people who are unquestionably guilty. But the argument from the possibility of error ? which is for most people the strongest arrow in the abolitionist quiver ? seems to me quite weak.
[quote]
BostonBarrister wrote:
Contrarily, I’ve become more and more in favor of the death penalty because I believe that, as I stated above, technology is making the probability of convicting the wrong person for a murder approach closer and closer to zero.
nephorm wrote:
I disagree, because I think that as juries come to regard DNA evidence as more of an automatic, infallible guide, the probability of error is actually increased. I fear that juries will view one piece of evidence to the exclusion of the rest.[/quote]
I would love it if they actually relied on it more. When it’s available, the probablilty of DNA evidence fingering the wrong person approaches zero – especially in cases in which the death penalty is most likely to apply, which are those in which someone kills someone with whom the perpetrator has not had previous contact. I would imagine we’d have to be talking about convicting the wrong twin, or at least the wrong person in a family.
Now, of course it has to be introduced in context, but I think jurors are more than capable of understanding something like the fact that Scott Peterson’s DNA would be found in his house, but the likeliehood of Lacy’s hair being found wrapped around pliers in his boat was much smaller. In that case, the DNA identified the hair, but it wasn’t irrefutable proof of guilt – it was a piece of the puzzle.
Now if you had found Scott Peterson’s pants covered with Lacy’s blood, that would be an entirely different type of DNA evidence.
I think the fact you need unanimous votes to convict and another unanimous vote for death, as well as review by the judge in most cases, would control for some jurors not being able to understand compound probabilities.
Overall, DNA improves accuracy. If the jury in OJ’s case had paid that kind of heed to DNA, we’d have one fewer murderer playing golf right now…
[quote]rainjack wrote:
100meters wrote:
But I don’t understand how in modern society, killing a child can’t be considered a cruel punishment. Death is a mighty cruel punishment no matter how much it may be deserved.
Why don’t you ask that question to your pro-abortion pals.[/quote]
I will never understand this. How can people be against putting a convicted murderer to death based on moral grounds, yet support killing of the unborn?
The same goes for people that always take a right to life stance except for convicted killers with bad lawyers. They can die.
Too many people listen to the talking heads on TV and because they agree with some of their opinions end up agreeing with everything these bobbleheads say. Use your own minds!
Stop following the BS “talking points” and decide for yourselves.
[quote]100meters wrote:
And although Jews believe in the death penalty, christians being honest with themselves should not. I only see evidence of Jesus being anti-death penalty, not pro-death penalty.
he said turn the other cheek
[/quote]
Turn the other cheek was not actually the correct quote. It has been distorted by passivists and now mis-quoted in tis common way.
What Jesus said was “If a man should strike your right cheek offer him your left!”
To understand this you need a cultural awareness that isn’t taught in church.
In Arabic countries you never touch someone with your left hand because this is the hand you wipe your ass with and thus unclean. There are harsh penalties for touching someone with your left hand. A thief will have their right hand amputated for their crime because now he has to eat,and wipe with the same hand. He also can not conduct business because he can not touch anything without being punished.
For a man to strike you on your right cheek it would have been done with a backhand using the right hand.
This was a common practice for those higher up in societies ranks to backhand those under. It was also very dehumanizing.
Jesus, knowing this, was actually speaking out telling men to stand up and make them treat you like a MAN not a subordinate! We are all equals under the eyes of God so make them treat you like an equal here on earth. Societies ranking or class system is not followed in heaven or even seen by God. No one is better than you are.
Not all Christians believe that Jesus’ message was one of passivity. Even Jesus used violence to drive out the money changers from the temple.
At one time in Christianities past it was taught that if someone was trying to harm you physically you fought for everything you were worth to protect God’s gift you body. To not fight back was to spit at the gift you were given and it was considered sinful.
[quote]Chewman wrote:
100meters wrote:
And although Jews believe in the death penalty, christians being honest with themselves should not. I only see evidence of Jesus being anti-death penalty, not pro-death penalty.
he said turn the other cheek
Turn the other cheek was not actually the correct quote. It has been distorted by passivists and now mis-quoted in tis common way.
What Jesus said was “If a man should strike your right cheek offer him your left!”
To understand this you need a cultural awareness that isn’t taught in church.
In Arabic countries you never touch someone with your left hand because this is the hand you wipe your ass with and thus unclean. There are harsh penalties for touching someone with your left hand. A thief will have their right hand amputated for their crime because now he has to eat,and wipe with the same hand. He also can not conduct business because he can not touch anything without being punished.
For a man to strike you on your right cheek it would have been done with a backhand using the right hand.
This was a common practice for those higher up in societies ranks to backhand those under. It was also very dehumanizing.
Jesus, knowing this, was actually speaking out telling men to stand up and make them treat you like a MAN not a subordinate! We are all equals under the eyes of God so make them treat you like an equal here on earth. Societies ranking or class system is not followed in heaven or even seen by God. No one is better than you are.
Not all Christians believe that Jesus’ message was one of passivity. Even Jesus used violence to drive out the money changers from the temple.
At one time in Christianities past it was taught that if someone was trying to harm you physically you fought for everything you were worth to protect God’s gift you body. To not fight back was to spit at the gift you were given and it was considered sinful.
[/quote]
This is a new interpretation for me.
I have always understood that Jesus teachings were based on the fact that earthly things don’t matter.
Don’t waste your life in the sole pursuit of wealth. If someone falls down, take your time and help them out. Pay your taxes and don’t worry about it.
I do not recall where he spoke out against the death penalty. He had plenty of opportunity to speak out against it. If it was the crucial issue, he would not have let himself be put to death.
Too many people try to use Jesus’ teachings as the basis of their arguments and it just doesn’t ring true. It is almost as bad as the football players that think god wants them to score touchdowns.
While I’m sure it’s interesting speculation to try to parse Biblical writings for support on the death penalty, it wasn’t really controversial at the time.
There were a few basic punishments back then: Death (by many different means); beatings (sometimes to death); mutilation; sold into slavery; stripped of citizenship and banned from the jurisdiction; or some combination thereof, usually accompanied by the rulers seizing all your property, and maybe enacting the same or other punishments on your family. And back then, it didn’t take 30 years with umpteen appeals to enact the punishment either.
It seems to me that it would have been rather easy for Jesus or any of the apostles to speak their thoughts against any of those had they so chosen. However, they didn’t, and I don’t think the opinions of the various international supreme courts of today would have impressed them one way or the other…
It’s usually not productive to attempt to go back and apply today’s moral standards and stances on history (or religion).
[quote]Zap Branigan wrote:
rainjack wrote:
100meters wrote:
But I don’t understand how in modern society, killing a child can’t be considered a cruel punishment. Death is a mighty cruel punishment no matter how much it may be deserved.
Why don’t you ask that question to your pro-abortion pals.
I will never understand this. How can people be against putting a convicted murderer to death based on moral grounds, yet support killing of the unborn?
The same goes for people that always take a right to life stance except for convicted killers with bad lawyers. They can die.
Too many people listen to the talking heads on TV and because they agree with some of their opinions end up agreeing with everything these bobbleheads say. Use your own minds!
Stop following the BS “talking points” and decide for yourselves. [/quote]
I agree with this so much it hurts. I just don’t see how anyone that believes in a “culture of life” or is a christian can support a system that sometimes kills innocent people. One innocent person should be too much if you really are true to those beliefs. What happened to the “Err on the side of life” argument? A culture of life but the state sometimes kills its own innocent citizens. Please.
To be completely honest though I would argue with the “killing the unborn” thing though. The reason I support the availability of first trimester abortions is because I don’t believe that what exists in a mother at the time is a living human. If you believe that that grouping of cells is a living human (although I don’t see how one could scientifically come to that conclusion), that you should certainly be against abortion because that would be murder.
[quote]Moriarty wrote:
To be completely honest though I would argue with the “killing the unborn” thing though. The reason I support the availability of first trimester abortions is because I don’t believe that what exists in a mother at the time is a living human. If you believe that that grouping of cells is a living human (although I don’t see how one could scientifically come to that conclusion), that you should certainly be against abortion because that would be murder.[/quote]
In China they often will murder a child as it’s head crowns because of the one child limit. This is a fully formed human being yet where is the outcry?
Many on the left will also say that a 14 year old should be able to have an abortion without her parents knowledge. A 14 year old cannot be put to death because he does not fully know right from wrong yet a 14 year old girl can choose to end her babies life?
I can understand if the girl is in a horrible family situation, but that is what family court is for.
Very inconsistent thinking from both the left and the right.
A new court, a new USSC death penalty case – and a turn away from death penalty activism. It’s a different issue – this case was certainly broader than the case at the start of this thread, which is confined to youthful offenders. This case would have been a much broader construction of the 8th Amendment, but the USSC overturned the KS Supreme Court’s construction thereof.
The difference in make-up of the court wasn’t the key though – it was Kennedy who switched sides between the two groups (Alito just replaced O’Connor) – an example of the problem of letting your society be ruled by judicial oligarchy is brightly illuminated here: essentially unelected Judge Anthony Kennedy is deciding capital punishment law for the U.S.
See here for a good synopsis:
http://www.orinkerr.com/2006/06/26/court-divides-sharply-over-death-penalty/
[quote]BostonBarrister wrote:
A new court, a new USSC death penalty case – and a turn away from death penalty activism. It’s a different issue – this case was certainly broader than the case at the start of this thread, which is confined to youthful offenders. This case would have been a much broader construction of the 8th Amendment, but the USSC overturned the KS Supreme Court’s construction thereof.
The difference in make-up of the court wasn’t the key though – it was Kennedy who switched sides between the two groups (Alito just replaced O’Connor) – an example of the problem of letting your society be ruled by judicial oligarchy is brightly illuminated here: essentially unelected Judge Anthony Kennedy is deciding capital punishment law for the U.S.
See here for a good synopsis:
http://www.orinkerr.com/2006/06/26/court-divides-sharply-over-death-penalty/[/quote]
So…“activism” just means the court doing something you disagree with, right?
[quote]harris447 wrote:
So…“activism” just means the court doing something you disagree with, right?
[/quote]
Activism means legislating from the bench.
Activism means ignoring constitutionality in favor of going with what “feels right,” or seems “morally appropriate,” and thereby usurping the rights of the people and states.
Not every issue is a constitutional one.
Political problems (such as the death penalty) ought to be decided politically, through the people and the legislature, and not through a group of unelected judges.
Thanks nephorm – that’s exactly my point.
Anyhow, check out how Scalia takes apart the flawed studies behind a lot of anti-death-penalty claims (and cited by the dissent) in his concurrence:
http://supct.law.cornell.edu/supct/html/04-1170.ZC.html
[i]One study (by Lanier and Acker) is quoted by the dissent as claiming that " ‘more than 110’ death row prisoners have been released since 1973 upon findings that they were innocent of the crimes charged, and ‘hundreds of additional wrongful convictions in potentially capital cases have been documented over the past century.’ " Post, at 8 (opinion of Souter, J.). For the first point, Lanier and Acker cite the work of the Death Penalty Information Center (more about that below) and an article in a law review jointly authored by Radelet, Lofquist, and Bedau (two professors of sociology and a professor of philosophy). For the second point, they cite only a 1987 article by Bedau and Radelet.
See Miscarriages of Justice in Potentially Capital Cases, 40 Stan. L. Rev. 21. In the very same paragraph which the dissent quotes, Lanier and Acker also refer to that 1987 article as “hav[ing] identified 23 individuals who, in their judgment, were convicted and executed in this country during the 20th century notwithstanding their innocence.” Lanier & Acker, Capital Punishment, the Moratorium Movement, and Empirical Questions, 10 Psychology, Public Policy & Law 577, 593 (2004). This 1987 article has been highly influential in the abolitionist world.
aHundreds of academic articles, including those relied on by today’s dissent, have cited it. It also makes its appearance in judicial decisions?cited recently in a six-judge dissent in House v. Bell, 386 F. 3d 668, 708 (CA6 2004) (en banc) (Merritt, J., dissenting), for the proposition that “the system is allowing some innocent defendants to be executed.” The article therefore warrants some further observations.
The 1987 article’s obsolescence began at the moment of publication. The most recent executions it considered were in 1984, 1964, and 1951; the rest predate the Allied victory in World War II. (Two of the supposed innocents are Sacco and Vanzetti.) Bedau & Radelet, supra, at 73.
Even if the innocence claims made in this study were true, all except (perhaps) the 1984 example would cast no light upon the functioning of our current system of capital adjudication. The legal community’s general attitude toward criminal defendants, the legal protections States afford, the constitutional guarantees this Court enforces, and the scope of federal habeas review, are all vastly different from what they were in 1961.
So are the scientific means of establishing guilt, and hence innocence?which are now so striking in their operation and effect that they are the subject of more than one popular TV series. (One of these new means, of course, is DNA testing?which the dissent seems to think is primarily a way to identify defendants erroneously convicted, rather than a highly effective way to avoid conviction of the innocent.)
But their current relevance aside, this study’s conclusions are unverified. And if the support for its most significant conclusion?the execution of 23 innocents in the 20th century?is any indication of its accuracy, neither it, nor any study so careless as to rely upon it, is worthy of credence.
The only execution of an innocent man it alleges to have occurred after the restoration of the death penalty in 1976?the Florida execution of James Adams in 1984?is the easiest case to verify. As evidence of Adams’ innocence, it describes a hair that could not have been his as being “clutched in the victim’s hand,” Bedau & Radelet, supra, at 91. The hair was not in the victim’s hand; “[i]t was a remnant of a sweeping of the ambulance and so could have come from another source.” Markman & Cassell, Protecting the Innocent: A Response to the Bedau-Radelet Study, 41 Stan. L. Rev. 121, 131 (1988).
The study also claims that a witness who “heard a voice inside the victim’s home at the time of the crime” testified that the “voice was a woman’s,” Bedau & Radelet, supra, at 91. The witness’s actual testimony was that the voice, which said " ’ “In the name of God, don’t do it” ’ " (and was hence unlikely to have been the voice of anyone but the male victim), " 'sounded “kind of like a woman’s voice, kind of like strangling or something U .” ’ " Markman & Cassell, Protecting the Innocent, at 130.
Bedau and Radelet failed to mention that upon arrest on the afternoon of the murder Adams was found with some $200 in his pocket?one bill of which “was stained with type O blood. When Adams was asked about the blood on the money, he said that it came from a cut on his finger. His blood was type AB, however, while the victim’s was type O.” Id., at 132. Among the other unmentioned, incriminating details: that the victim’s eyeglasses were found in Adams’ car, along with jewelry belonging to the victim, and clothing of Adams’ stained with type O blood. Ibid.
This is just a sample of the evidence arrayed against this “innocent.” See id., at 128?133, 148?150.
Critics have questioned the study’s findings with regard to all its other cases of execution of alleged innocents for which “appellate opinions U set forth the facts proved at trial in detail sufficient to permit a neutral observer to assess the validity of the authors’ conclusions.” Id., at 134.
(For the rest, there was not “a reasonably complete account of the facts U [sic] readily available,” id., at 145.) As to those cases, the only readily verifiable ones, the authors of the 1987 study later acknowledged, “We agree with our critics that we have not ‘proved’ these executed defendants to be innocent; we never claimed that we had.” Bedau & Radelet, The Myth of Infallibility: A Reply to Markman and Cassell, 41 Stan. L. Rev. 161, 164 (1988). One would have hoped that this disclaimer of the study’s most striking conclusion, if not the study’s dubious methodology, would have prevented it from being cited as authority in the pages of the United States Reports. But alas, it is too late for that. Although today’s dissent relies on the study only indirectly, the two dissenters who were on the Court in January 1993 have already embraced it. “One impressive study,” they noted (referring to the 1987 study), “has concluded that 23 innocent people have been executed in the United States in this century, including one as recently as 1984.” Herrera v. Collins, 506 U. S. 390, 430, n. 1 (1993) (Blackmun, J., joined by Stevens and Souter, JJ., dissenting).
Remarkably avoiding any claim of erroneous executions, the dissent focuses on the large numbers of non-executed “exonerees” paraded by various professors. It speaks as though exoneration came about through the operation of some outside force to correct the mistakes of our legal system, rather than as a consequence of the functioning of our legal system. Reversal of an erroneous conviction on appeal or on habeas, or the pardoning of an innocent condemnee through executive clemency, demonstrates not the failure of the system but its success. Those devices are part and parcel of the multiple assurances that are applied before a death sentence is carried out.[/i]
[quote]nephorm wrote:
harris447 wrote:
So…“activism” just means the court doing something you disagree with, right?
Activism means legislating from the bench.
Activism means ignoring constitutionality in favor of going with what “feels right,” or seems “morally appropriate,” and thereby usurping the rights of the people and states.
Not every issue is a constitutional one.
Political problems (such as the death penalty) ought to be decided politically, through the people and the legislature, and not through a group of unelected judges.[/quote]
I know what it means. Just commenting on the fact that people only seem to call judges on it when they make rulinggs when they disagree with their political views.
what are some examples of conservative activism?