Don Davis

Is There a Death Penalty Compromise?

Filed By Don Davis | September 23, 2011 3:00 PM | comments

Filed in: Politics
Tags: 8th Amendment, ACLU, capital punishment, civil rights, Congress, Constitutional Law, death penalty, Georgia, Innocence Project, Law, Troy Davis

I don't feel very good about this country this morning, and death-row.jpgas 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.


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There can be no compromise on death. It is final and absolute. To allow the state the power of life and death over it's citizens, no matter how "solid" the evidence is, is to upset a very delicate and complicated balance of power. Furthermore, throw in the utter lack of evidence that the death penalty acts as a deterrent and the very idea of capital punishment as an instrument of justice becomes nonsensical. Or as I put it earlier, a barbaric fallacy.

Compromise in this case, in order to avoid "innocents" being put to death accidentally will fail, as there is no way that we can ever be 100% sure that someone is innocent or guilty, except perhaps in cases of video footage. Physical evidence is a step up from eye witness testimony, but can still be planted by a perpetrator or subjected to human error in a lab.
-Jeremy

i'm in full agreement with you that there is unlikely to be a 100% perfect solution that involves the death penalty - but i'm also about 100% sure that georgia is not going to end the death penalty anytime soon.

so i'm finishing up a lecture series on probability, and to me this discussion is about an exercise in probability analysis: how likely are we to see more of these executions where innocent people are put to death vs the odds of getting to this kind of change vs the odds of getting a full repeal in a state like georgia?

i think full repeal is going to be some tough sledding indeed; this kind of intermediate step might actually be "salable" in a way full repeal is not...and, considering the current pace of executions, it seems more likely than not that we will execute another innocent person at some point in the fairly near future.

finally, a question: how is the state committing executions upsetting to the balance of power?

considering that the death penalty is the status quo in most jurisdictions, and that banning the death penalty would arguably return power back to the accused and convicted, it seems to me that full repeal would be the thing that would be the most upsetting to the current balance of power, not keeping things as they are.

I feel that you're a whole lot more optimistic then myself when it comes to your proposal. I actually think most states might not see a difference in rates of execution, even with a higher "standard" of evidence. Maybe your idea would actually work out, but I fear that there is a good possibility that the current rate of executions would remain unabated. Maybe in extreme cases such as Troy Davis where witnesses later recanted, it might save an innocent life or two.

However, by imbalance of power I mean it is unlawful for us (the citizens) to kill except in clear cases of self defense or defense of another. But if the state is allowed to kill citizens outside of clear cut cases of self defense, then the state has a power we do not. Thus capital punishment causes an imbalance of power between citizens and the government. The fact that only a small percentage of individuals are put to death does not do away with the fundamental nature of this imbalance.

As for the balance of rights/power of the accused/convicted vs. the victims, the system is screwed up anyways and there is nothing capitol punishment can do to fix it. For example It Happens Every Day by Robin Sax does a rather good job of illustrating the imbalances of power that exist in our current system when it comes to children who have been sexually abused by adults. Will capitol punishment help in this case? No. Rather we should be focusing our energies to help real victims. Capital punishment helps no one, it merely eat up large amounts of money (which your standard of evidence could make worse, as states funnel more money to meet those standards) during the appeals process, that could go to fixing what is truly broken.
-Jeremy

first, if this proposal were to adopted, virtually all "ineffective assistance of counsel" claims, to give one example, would result in life without parole (that was a claim made by davis), and that's a pretty good chunk of death row right there, so the potential for saving quite a few lives does indeed exist.

but i want to take another second to talk about balances of power: you can make the argument that the state, of its own accord, has no power derived from natural law (as locke would say) to kill a citizen...but do the citizens have the collective power to choose to execute certain other citizens?

paine would have said no, but the 10th amendment seems to say otherwise - and congress has sanctioned a federal death penalty as well...and it is fair to say that it was done in the collective name of the citizens, as it was done by elected representatives, and not by the order of a sovereign, acting alone in their imperial authority.

in practical terms, that means if you're going to defeat the death penalty nationwide, you have to demonstrate that it's cruel or unusual (in other words, an 8th amendment claim); of course, that happened in the '70s, and it could happen again - but if you can't get to that point, we may have to think about a compromise like this one in order to save as many lives as possible.

"(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?)"

I wouldn't be okay with it.

i am not surprised that there are readers here who aren't "ok with it" - after all, we are liberals here, for the most part - but look around at the community that read this, and imagine how many of them were ok with it; my guess is that a good 1/3 to 1/2 of even the most liberal amongst us can find some instances in which executions can be justified - and as i said in the story, if that's true, you can imagine that amongst more conservative groups that number is much, much, higher.

Kathy Padilla | September 23, 2011 8:05 PM

Here's a suggestion - after the "Supreme Architect" of the Founders decides it's time for someone's clock to run down; a states Governor can pump as many bullets into the corpse as he or she feels is necessary. So long as it's recorded & their kids have to watch in person. Sounds fair.

i'd tell you the same thing i just said above: i get that the death penalty is administered insanely in this country, and i'm all good with life without parole, for a variety of reasons we'd presumably both agree upon.

but what do you do in places like texas and florida and oklahoma and georgia, where there is a strong appetite for the concept of the death penalty, and full repeal is a near-zero-probability event?

now you might claim that the troy davis situation raises the potential for an 8th amendment challenge (and i think you'd be correct in that assumption), but short of an appellate victory your best bet is to try something like this.

Rachel Bellum | September 23, 2011 8:26 PM

I also oppose the death penalty on principle and also am suspicious about the general public's willingness to eliminate it at this time. This compromise sounds interesting, but I'm wondering how you see it being implemented. Wouldn't those states which use the death penalty most actively also oppose any legislation limiting its use?

if you are thinking of a legislative strategy, i think the way you get at it is to point out that if you're killing the innocent, and your governor or board of pardons and paroles doesn't intervene (which is what happened to troy davis), you are going to have an 8th amendment problem, and once the federal courts get involved you are facing the risk of not being able to execute anyone at all. better to reform now and do fewer executions than to have no reform and zero executions.

(to answer your next question: in the troy davis case the supreme court appears to have felt that what was about to happen to davis was entirely hypothetical; they assumed, as late as the day of his death, that georgia would act on evidence and "do the right thing". the next time before the court it's no longer hypothetical, and that's significant.)

if the initiative process is available, you push very, very, hard on "killing the innocent is always unacceptable", which, you may note, has been a sales pitch that has worked very well for the anti-abortion crowd with the same conservative audiences.

i should also add that states like texas, florida, and georgia are susceptible to boycotts as well; "no justice, no spring break" would be one potential way to make the point.

I stand by what I said in reply to Bil's Post on Troy Davis and the others. I've been doing a lot of reading tonight. I just finished Herrera v. Collins which relates to Scalia's comments on Troy Davis. What Blackmun wrote in his dissent and what O'Connor had to say, I think, is more relevant than Scalia's "off with there heads" draconian and hypocritically inconsistent opinions.

In relation to what you write, the statistics provided by the Innocence Project casts doubt regarding the reliability of evidence generally thought of as convincing like eyewitness accounts, etc. when trying to reach absolute certainty. I found this interesting from the Duke Magazine :

http://www.dukemagazine.duke.edu/dukemag/issues/070802/convictions.html

The wikipedia article on the conviction of Chicago Police detective, Jon Burge, I think, has bearing on whether convincing a jury that someone is guilty with a high degree of certainty is a matter of fooling all of the people some of the time or not.

Recent events at Northwestern's Medill School of Journalism's has cast a shadow over their innocence project but you have to wonder what that is all about after all the muckraking David Protess and his students have done over the years. I think it's about controlling what people are fed in the newspapers. It's a journalism school after all. Northwestern seems to want to make marketing its focus since John Lavine arrived as its new dean:

Mr. Lavine is a polarizing figure at Medill: he is widely credited with stabilizing an institution that was suffering financially but he also led a successful effort to rename the school the Medill School of Journalism, Media, Integrated Marketing Communications, a change he said reflected the school’s broader agenda but one that was widely ridiculed by alumni and journalists.

I guess muckraking doesn't pay off. I am told G E Financial has a lot invested in prison building programs.

The justice system is horribly broken and unjust. Until people are better informed, that is not going to change. Rhode Island is densely populated. A large part of the population is urban. We haven't had a death penalty here in over one hundred fifty years. Having one wouldn't have made any difference. We have a relatively low murder rate in comparison with death penalty states even though Providence was New England Mafia headquarters for years. It probably still is. There are drug gangs and other gangs here. They all have their death penalties and reprisal after reprisal. The creeps with the most money get out early or totally escape conviction, even if they commit brutal murders, because they can afford good legal representation with their drug, extortion and gambling money. Having a death penalty wouldn't change that. It's only the indigents who pay the price.

Criminal justice has to move away from justice that isn't very much different than the criminals' justice, get over its anal retentive focus on victimless activity and simply concentrate on keeping dangerous people off the street and out of police departments. Nothing is going to change until the public realizes how much they've been mislead and how much it's all costing them. A lot of people are afraid to speak out, too.

so a few thoughts here;

--not to put too fine a point on the thing, but it is entirely possible that the reason providence has a low rate of violent crime, and has had for a long time, might be the combination of the city's relatively small size and the fact that...it was the headquarters of the east coast mafia.

after all, the pentagon is the headquarters of the military - and anyone who ever saw dr. strangelove knows "you can't fight in the war room", so why not the same for providence?

--the innocence project, i suspect, is going to be ok in the long run, and that's because what they're doing is the kind of thing that can get grants from someone like soros, even if others back away. the work stands on its own, and that's tough for opponents to beat back; besides, life without parole is good business for a private prison operator.

--on the death penalty and rhode island: because of federal laws relating to drug and weapons possession (a quick example; there are others), every state now has a death penalty if a us attorney can claim jurisdiction - and several of them do, as often as they can.

that means we do have to think about application, even if it's not enshrined in state law, and the idea here is to limit application all we can.

--finally, a couple of words on anal retention: cops are local, in the end, and a lot of police business is related to keeping local merchants happy - and that makes sense, if you think about it, since the best source of political support in most towns is the local merchant community.

who else are you looking to keep happy in most towns? the church community: they show up in organized groups, and if they're mad at you, they'll talk trash about you, in a "harper valley pta" kind of way, and nobody in local politics wants that.

both of those groups tend to want the local police to clamp down on the visible signs of crime, and that's the homeless and street-level drug dealers and other assorted heathens and poor people...people just like me, more or less...and when you look around, sure enough, that's pretty much how local law enforcement gets done.

Hi Don,

I really don't know what to say. Many people around here think the mafia kept the order in a lot of neighborhoods. I am not enough of a libertarian to think that was such a wonderful thing. Ever see the Pope of Greenwich Village?

I won't argue against the assertion that any improvements to a system that has sent so many innocent people to their deaths would be better than none. At least the governor, here, has gone out of his way to keep the Jason Pleau murder trial out of the federal courts for the time being.

By the way there, are over three thousand people on death row. They don't execute so many that outlawing the death penalty would make much of a difference to prison operators. As far as the merchants are concerned, I think the merchants need to keep the police happy more than the police need to keep the merchants happy. I had a friend who passed away thirty-five years ago who sold advertising space for FOP organizations across the country. I can't go into the details but that was the story he told. I guess it probably depends on how big a merchant one is, the same way it depends on how much money one has to spend on a lawyer, though.

One thing that troubles me is that Troy Davis probably would not have been sentenced to execution if he had committed his alleged crime in Metro Atlanta instead of in more conservative Savannah. The metro area, especially Fulton and DeKalb counties rarely sentence anyone to death. Most troubling to me having been a resident of Atlanta for 30 years is watching the character of Georgia change. It used to be the most socially advanced southern state, largely due to the influence of having a major city, I am sure, that and being the center of the Civil Rights Movement as the home of Dr. Martin Luther King. I had heard reports of enroaching conservatism and in the last General Assembly they passed an Arizona-type anti-immigrant law. And they actually try to enforce it in Atlanta. A friend of mine was asked for ID at a Marta station because he was speaking on the phone in Spanish. Troy Davis takes the cake. Georgia has descended to the level of Texas.

i would add one thought to your comment that extends way beyond georgia: prosecutors have a lot of discretion in deciding who to charge with what, and two people with similar circumstances can find themselves in vastly different situations by the time they get to court.

so this can also happen with sentencing disparities, and a variety of states (including washington, where i live) have adopted "determinate sentencing" to get at the problem; you could try to do the same with prosecutors, but it would be a lot harder to regulate: there's a lot more of 'em, they work out of the public eye, and, being farther "down the chain" they are supposed to make a lot more judgment calls...and you can't write a rule for every strange situation, which is why they have discretion in the first place.

those issues are magnified even larger when you're dealing with police discretion; as you've noted, police behavior's extremely tough to regulate.

one approach that's used in canada is the civilian oversight board: all canadian municipal police forces have such a board, and it has authority over the police chief and all other local police officials.

i'm not aware of any us city that uses such an approach, and i would love to see it catch on.

What about the old rumor that life in prison is cheaper for the taxpayer than the death penalty? The argument I've heard claims that the lengthy appeals process ultimately costs us more than "3 hots and a cot" for life at any state or fed. prison. If that is so, shouldn't "life without parole" be more attractive to the fiscal concervatives than the death penalty? Hummmm?