CRUEL, BUT NOT UNUSUAL, JUDICIAL MISCHIEF
Many Americans favor abolition of the death penalty; they offer four main reasons. First, they say it's unconstitutional . . . it violates the Eighth Amendment's prohibition of "cruel and unusual punishments." Second, it's been fairly well documented that courts make a lot of mistakes in capital cases. Therefore, we shouldn't trust them with anything as final as a life or death decision. The third reason offered is based on the claim that capital punishment does not deter crime. So its use is nothing more than collective vengeance which degrades us all. Finally, many sincere and idealistic people oppose capital punishment because it violates their religious beliefs.
The first argument is based on "law," the second and third on "social science." The fourth is based on religion. Let's review the four arguments one at a time.
In 1791, when "We the People" ratified the Eighth Amendment, which forbids "cruel and unusual punishments," we also ratified the Fifth Amendment, which ordered that no person shall be "deprived of life, liberty, or property, without due process of law." The Amendment treated "life" exactly the same way it treated "liberty" and "property," In 1791, every single state had mandatory death penalty statutes. All except Rhode Island punished ten or more crimes with death: the list typically included murder, treason, piracy, rape, arson, buggery (or sodomy), burglary, robbery, and, in some states, counterfeiting, horse-theft and slave-rebellion [Note 1].
About nine decades later, in 1868, "We the People" ratified the Fourteenth Amendment, which ordered that no state shall "deprive any person of life, liberty, or property, without due process of law." That Amendment, which also treated "life" exactly the same way it treated "liberty" and "property," was the last constitutional amendment which said anything about capital punishment. In 1868, all but two states still specified the death penalty for several crimes including murder, rape, treason and various others. And, in all but a few states, the death penalty was still mandatory [Note 2].
So there's no language in the Constitution to support any claim of special restrictions on capital punishment, much less complete prohibition. And the provable intent of "We the People," when we ratified all the relevant constitutional passages, was to avoid any such special restrictions. Of course "judicial activists" have a story line to render irrelevant the above undeniable facts: the Eighth Amendment, along with the rest of the Constitution, changes in keeping with the evolving standards of decency held by whomever happens to be on the Supreme Court [Note 3].
If that story is true, we do not live under a Constitution at all; it's merely an empty symbol to distract us from what's really going on, rule by an oligarchy of lawyer-politicians. Since that's unacceptable, capital punishment is not unconstitutional and never will be unless "We the People" ratify a new amendment to make it so.
MISTAKES BY COURTS
Courts do not impose the death penalty in a fair and rational way; there's no doubt about that. The most deserving murderers don't even get convicted, much less executed. America currently executes about one killer for every 250 murders. Sixty percent of the murderers don't even go to jail [Note 4].
A June 2000 study headed by James Leibman, a Columbia University law professor, concluded that "serious errors" were made in 68 percent of all death penalty cases in the prior three decades. The errors in question were not found by Professor Leibman and his colleagues, they were found by the tireless efforts of state and federal appellate judges. Liebman et. al. merely collected and organized the statistics [Note 5].
There was no comparable multi-level review process for the 99 percent of murder cases that did not result in a death penalty; but there's certainly no reason to suppose their error rate was any lower. Judges presiding over capital murder cases have no special incentive to be careless; quite the contrary is true. They have extra incentive to avoid errors; they know the trial results will be subject to endless review by other courts. And there's no career payoff to a judge being overturned on appeal. Therefore, one can safely assume that the error rate on the other 99 percent of the murder cases was also 68 percent or higher. Let's explore the implications of that irrefutable assumption.
During the twenty-five years ending in late 1998, somewhere in the neighborhood of half-a-million Americans were murdered. About 200,000 killers got sent to jail; around 500 convicted killers were executed; and seventy-four men were freed from death row because someone came up with new evidence indicating they might be innocent. The government employees that managed this failed process had a probable error rate in excess of 68 percent, which means they bungled somewhere around 340,000 murder cases [Note 6].
There's been no evidence presented to show that our courts were equally dysfunctional prior to the 3 decade period examined in Professor Leibman's study. Just prior to that period, the U. S. Supreme Court began fabricating fraudulent, or at least speculative, new "constitutional" rules with which to micromanage the process in question. So they bear full responsibility for its subsequent malperformance. That is, they're equally to blame for the outcomes that seventy-four possibly innocent men were sent to death row and somewhere around 300,000 murderers were never punished [Note 7].
Mistakes by courts, therefore, do not seem to provide a justification for abolishing the death penalty, they point to a crying need to reform our hopelessly dysfunctional judicial branch of government. It's dysfunctional at least partly because it's under the control of a criminal enterprise.
QUESTIONS ABOUT DETERRENCE VALUE
Death penalty opponents cite various anecdotal data to make the case that capital punishment does not effectively deter crime. Anecdotal data cuts both ways.
According to Amnesty International (AI), "at least 123 people" were executed in Saudi Arabia during 2000. AI said "at least 123" because the Saudi government doesn't release numbers and the AI investigators couldn't be sure they had learned about every one. So the true number might have been as high as 125 or 130. The population of the desert kingdom in 2000 was about 19 million [Note 8].
Under Saudi law, the death penalty is mandatory for a long list of crimes including murder, rape, drug trafficking, sodomy and armed robbery. One can reasonably infer, therefore, that Saudi Arabia is not troubled by a lot of murder, rape, and so forth. In a nation of 19 million people, 130 criminal sentences in a whole year indicates that the total incidence of covered crimes (murder, rape, drug trafficking, armed robbery, and so forth) was probably not much more than one crime per 100,000 population. That same year (2000), the United States, which talks about the death penalty but rarely uses it and then only after a ten or twenty year delay, experienced 506.1 violent crimes per 100,000 population including 5.5 murders and 32 rapes [Note 9].
I have no intention of moving to (or even visiting) Saudi Arabia; there's more to life than a low crime rate. However, I might think twice about Singapore, a modern and very civilized city-state on the Malay Pininsula. Singapore law mandates the death penalty for murder, treason and certain drug trafficking and firearms offences. I can get by quite nicely without doing any of those things; and Singapore's murder rate is about one tenth that of the U. S. [Note 10].
The claim that the death penalty does not deter is ridiculous on its face. It may not deter every criminal; criminals tend to be somewhat dumber and crazier than the general population. And it will not even deter most of the criminals if it's merely threatened but hardly ever carried out. Anecdotal data aside, unbiased studies generally indicate that timely and certain punishment deters much more effectively than more severe, but delayed or unpredictable, punishment.
In that connection, a recent study by two economists speaks volumes about the deterrence effect of capital punishment. H. Naci Mocan and R. Kaj Gittings, of the University of Colorado at Denver, analyzed U. S. Justice Department data on all 6143 death sentences handed down in the U. S. between 1977 and 1997. To keep things in perspective, 445,808 people were murdered during the years in question, and only 432 killers were executed. So a murderer weighing his risks could have safely concluded that he had only one chance in a thousand of being executed for the crime [Note 11].
Mocan and Gittings developed a complex computer model to analyze the effects of all pardons (commutations of the death sentence) and executions, in the 38 states that allowed capital punishment, on the murder rate in the same state during the year following the pardon or execution. The study was structured to control for (separate out the effects of) every social indicator the authors could think of that might possible influence the murder rates in those 38 states. Examples include things like the infant mortality rate, per capita alcohol consumption, unemployment and welfare rates.
Not surprisingly, the study results indicate that executions tend to reduce the number of murders during the following year and pardons tend to increase it. Each pardon of a death row occupant led to about 0.4 additional murders the next year, and each execution deterred about 5.5 murders. Evidently, an actual execution was about fourteen times as powerful an influence on the thought processes of potential killers as a pardon, which merely removed the remote possibility that a killer might be executed some time later. It's probably only an interesting coincidence; but the ratio of death sentences to actual executions during the period of the study, was also about fourteen to one [Note 12].
In any case, capital punishment, as implemented in the United States, is not an effective deterrent because it is not credible. Potential killers know the probability of their paying the ultimate price is too small to worry about. This, however, is not a good argument for abolishing capital punishment. Like the issue of mistakes by courts, the issue of questionable deterrence points to a need for wrenching reform of our judicial branch of government. The deterrance value of capital punishment has been completely nullified by fraudulent constitutional rulings going back at least to 1958. That is entirely the fault of the U. S. Supreme Court [Note 13].
The results obtained by Mocan and Gittings indicate that every capital punishment not carried out results in approximately 5 1/2 additional murders. During the twenty-five years ending in late 1998, somewhere in the neighborhood of half-a-million Americans were murdered and only 0.1 percent of the killers were executed. One can make a very strong argument that failure to execute a higher percentage of the killers led to many, perhaps most, of the half-million murders. That failure was due in large measure to fraudulent constitutional interpretations by our employees on the Supreme Court. Doesn't that make those employees accessories to mass murder?
ALL HUMAN LIFE IS SACRED
Several religions practiced by Americans teach that all human life is sacred. So society should not take a life, even to discourage crime, especially if there are other ways to afford society the same degree of protection. My religion is among them, I'm a Roman Catholic. And I'm inclined to accept my Church's leadership in this policy area. Since we live in a country with a "Republican Form of Government," I only get one vote. However, if my fellow citizens decide to do away with capital punishment, I'll cheerfully go along. But I do not want our judicial employees imposing their religious views on me. If we're going to do away with capital punishment to satisfy religious principles, they've got to be religious principles held by "We the People" [Note 14].
Giving up our present ineffectual efforts to deter murder through capital punishment need not do as much harm as one might think. We currently have about 17,000 murders and execute somewhere around 100 killers each year. So ending capital punishment could be expected to lead to an additional 550 murders each year, about a three percent increase. However, other reform measures can potentially cut the murder rate by a much larger amount, perhaps by half or more. Most murderers start out with something smaller: burglary, car theft, drug dealing, assault, robbery, or whatever. If they're not caught and punished, they tend to graduate to more serious crimes. In America most criminals are not caught and punished; the main reason is half-a-century of fraudulent constitutional interpretations by the U. S. Supreme Court.
A recent study by the National Center For Policy Analysis (NCPA) reviewed a large body of FBI data from the 1990's which described what happened, or didn't happen, to the perpetrators of millions of crimes. Morgon O. Reynolds, the author of the study, found that only 15 percent of the rapists, 8 percent of the armed robbers, and 5.4 percent of those who committed assault paid for their crimes with jail time. If "We the People" ever take the trouble to discipline our faithless employees on the Supreme Court, we'll eventually get a much higher percentage of those perpetrators into jail and perhaps keep them there until they're too old to find crime attractive [Note 15].
NOTES & CITATIONS
1. See Mackey, page xiv-xvii and xxx. See also Leob, pages 25-28, and Randa, pages 5-7.
2. Michigan abolished capital punishment in 1846 for all crimes except treason. Rhode Island abolished it completely in 1852 and Wisconsin in 1853. However Rhode Island restored it in 1882 for murder by a life-term convict. According to Mackey, three states made the death penalty discretionary, on the part of the jury, prior to 1860, and 18 more followed suit by 1895. Since criminal justice reform was not a legislative priority during the Civil War, we can safely conclude that capital punishment was still mandatory in all but a handful of states when the Fourteenth Amendment was ratified.
3. See Mackey, pages xxx. See also the table on page 32 of Leob. During the 1970's, a gang of white collar criminals on the Supreme Court ruled that mandatory death penalty statutes were unconstitutional (Woodson v. North Carolina, 1976 and Roberts v. Louisiana, 1976), as was any law punishing rape with death (Coker v. Georgia, 1977). These obviously fraudulent rulings were based on a judicial doctrine that has been called the evolving standards of decency scam. See The Temple of Karnak, Chapter 24.
4. See the National Center For Policy Analysis (NCPA) study, "Crime and Punishment in America; 1997 Update," by Morgon O. Reynolds. At this writing it could be found on the Internet at http://www.ncpa.org/studies/s209/s209.html.
5. Professor Leibman's study was discussed in a June 12, 2000 CNN.com article by Charles Bierbauer and others entitled, "Death Penalty Caught in Growing Crossfire." At this writing, the article could be found on the Internet at http://www.cnn.com/2000/LAW/06/11/death.penalty/index.html. The actual study, entitled, A Broken System: Error Rates in Capital Cases, 1973-1995," can be found at http://justice.policy.net/jpreport/.
6. Statistics on innocent men sentenced to death are from "The Wrong Men on Death Row," by Joseph P. Shapiro. It appeared in the November 9, 1998 issue of U. S. News and World Report. About 20,000 Americans were murdered in an average year over most of that 25-year time frame. You can look up the annual murder rate in any almanac, or you can find it on the Internet. According to Table I in the study by Reynolds (See Note 1 above), less than 40 percent of the murders in the 1990's resulted on the perpetrator getting even prison time.
7. The 1972 case referred to here was Furman v. Georgia. See The Temple of Karnak, Chapter 24.
8. See the 2001 AI Report on Saudi Arabia.
9. See the June 1998 AI status report. See also the Detroit News Religion Section for Wednesday, April 26, 2000. For U. S. crime statistics see the Disaster Center crime report.
10. See the 2000 AI Country Report. See also the Singapore government web site. For U. S. crime statistics see the Disaster Center crime report.
11. The paper "Pardons, Executions, and Homocide," by H. Naci Mocan and R. Kaj Gittings can be found on the Internet at a National Bureau of Economic Research web site. The number of murders between 1977 through 1997 was found by adding the annual totals given in the Disaster Center crime report.
12. The ratio of 5.5 (Mocan and Gittings actually said between 5 and 6) to 0.4 is 13.75; the ratio of 6143 (the number of death sentences) to 432 (the number of executions) is 14.2.
13. See The Temple of Karnak, Chapter 24 for a discussion of the "evolving standards of decency" scam, which the Court "evolved" in Trop v. Dulles.
14. I've argued elsewhere that our judicial branch of government is running a national religion in defiance of the First Amendment.
15. See Note 4 for an Internet address at which a report of the NCPA study can be found. Government statistics show that people under 25 years old commit more than half of all crimes. See, for example, the Dept. of Justice statistics that can be found at http://www.ojp.usdoj.gov/bjs/crimoff.htm#inmates.
Connolly, D. J., The Temple of Karnak: How Rogue Judges Have Been Strangling Your Democracy, Plum Creek Book Works, Jan. 2000
Loeb, Robert H. Jr., Crime and Capital Punishment, Franklin Watts, 1978
Mackey, Philip English Ed., Voices Against Death, Burt Franklin and Co., 1976
Randa, Laura E. Ed., Society's Final Solution, University Press of America, Inc., 1997
This article contains excerpts from Chapter 24 in The Temple of Karnak: How
Rogue Judges Have Been Strangling Your Democracy. However, it
also contains new material that will not be found in the book.
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D. J. Connolly