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February 17, 2014

"Let's put the political correctness aside and debate this issue on the grounds that we really want to: is the death penalty moral or not?"

The title of this post is the final senitment expressed by Gus L. in conjunction with the terrific comment discussion that is now energized in response to this post noting Washington Governor Jay Inslee's remarkable decision to take his state's death penalty into his own hands by declaring a moratorium on executions while he serves as Governor.  Though I do not want to distract from discussion about Governor Inslee's decision, I wanted to "tee up" the fundamental question Gus identifies while also contextualizing it with my usual who and how concerns.

I am grateful to Gus for cutting to the heart of the issue in all capital punishment debates and discussions, namely whether one believe the death penalty is moral (or just or righteous or legitimate or approrpiate or whatever other word one wants to adopt for this ultimate normative question).  I am grateful because I hope and assume that everyone in the class realizes and recognizes (1) that one's own views on this ultimate issue inevitably colors one's perspective on all other capital punishment questions/debates, and (2) that reasonable people with reasonable and diverse views on theories of punishment reach reasonable and diverse conclusions concerning whether the death penalty is moral/just.

With this critical background, the who and how questions we are discussing in class take on an extra dimension in modern American society committed to democratic rule structured by a Constitution designed to safeguard some individual rights against majoritarian preferences.

1.  If I am a Governor who has a strong perspective on whether the death penalty is moral (or not), how can and should I use my legal, political and social powers to further this perspective?   

2.  If I am the U.S. Attorney General (or a local District Attorney) who has a strong perspective on whether the death penalty is moral (or not), how can and should I use my legal, political and social powers to further this perspective?  

3.  If I am U.S. Supreme Court Justice (or a state Common Pleas Judge) who has a strong perspective on whether the death penalty is moral (or not), how can and should I use my legal, political and social powers to further this perspective?  

4.  If I am a prosepctive juror (or the family member of a murder victim) who has a strong perspective on whether the death penalty is moral (or not), how can and should I use my legal, political and social powers to further this perspective?  

Arguably, if you have a very strong opinion on the morality of the death penalty and a very strong belief that "death is different" so that matters of life and death are to be treated different in kind than all other matters, then the answer to these four questions might be identical: you should use all your legal, political and social powers to further your moral vision no matter what your role in American society.  But, if you think one's role in American society should influence the answer to the questions above, then arguably you think that there are moral considerations of even greater importance that the question Gus highlights as to whether the death penalty moral or not.

February 17, 2014 in Pro/Con arguments surrounding the death penalty, Who decides | Permalink

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With regard to the fourth question posed, "If I am a prosepctive juror (or the family member of a murder victim) who has a strong perspective on whether the death penalty is moral (or not), how can and should I use my legal, political and social powers to further this perspective?" I believe the the family of a victim can and, if they feel so compelled, should use their various "powers" to further their perspective. If a family member of a victim chooses to speak during the sentencing phase, I believe their subjective beliefs do weigh heavily on a jury; a jury may be more than willing to spare life if accords with what victim would have wanted. As recent news as highlighted, religious beliefs are a reason why one may choose to spare life. Perhaps this relates back to an earlier question posed: what role do victim's (or their family) play in the sentencing process. Although I'm inclined to hope a jury will still fully evaluate any aggravating or mitigating factors accordingly, I do think, nonetheless, the family of a victim can use the sentencing phase as an effective means for advocating their position.
As recent news has also highlighted, that "power" also extends after a death sentence has already been imposed. A victim's family may still argue for clemency based on their beliefs as to the morality of the death penalty. Although a subsequent grant of clemency may, arguably, undermine the integrity of the state's justice system, nonetheless the family of a victim can use that "power" to effectively advocate for their perspective.

Posted by: Carrie Thiem | Feb 18, 2014 12:04:11 PM

I've struggled a lot with this fourth question, and I have to respectfully disagree about the extent to which family members of murder victims should influence the implementation of the death penalty. To date, I'm not persuaded that victim impact evidence should be admissible in general. I think that the entire class, and most of the general population, would agree that a sentence should not depend on the race of the defendant or the victim. Yet, as we have seen through the readings, the race of the victim has historically had an impact on the sentence.

With this history of victim information being used in a racially discriminatory way, I have a hard time jumping on board with victim impact evidence. I know that in torts there is the eggshell skull rule and that a tortfeasor takes their victim as they are, but I am not sure if the same rule should translate into the criminal sense with victim impact evidence. I appreciate the logic behind the idea in tort law: if you injure someone, you're liable, even if they suffer an unusually high amount of damage. Society wants the injured party to be made whole by the tortfeasor. This logic does not extend to murder cases. If a defendant murders someone, why should we assess the damage done? If a victim is dead, the damage is the same regardless of their age, race, hair color, job, sexuality, or any other individual trait. Victim impact evidence sounds great when someone is arguing that the victim was a pretty, young, successful business woman with two small kids, but what if the victim is homeless? A drug addict? A prostitute? Should we really start arguing that one victims's life is more important than another victim's life?

If nothing else, another problem with the family taking a role in sentencing is the problem of grief and the problem of regret. The family is likely still grieving at the time of sentencing. Perhaps this will cause them to make a decision they will later regret if the defendant is sent to die. In Kennedy v. Louisiana, the Court mentioned the problem of centering the decision around the child victim, who may later regret a decision made in her youth. The Court even quoted the prosecutor's closing argument: "[Child Victim - L.H.] is asking you, asking you to set up a time and place when he dies." If the victim's own ideas shouldn't be the crux of a death sentence, why should the family of the victim have more weight?

Posted by: Katie W. | Feb 18, 2014 10:07:57 PM

1. If I am a Governor who has a strong perspective on whether the death penalty is moral (or not), how can and should I use my legal, political and social powers to further this perspective?   

The Governor, through clemency, has incredible power--legal, political, and social--to stop executions. If one believes in a strong executive, he or she should feel comfortable with the governor issuing many and broad clemency grants. On the other hand, if one believes in a weaker executive, and stronger legislatures and local governments, the Governor should stand down and allow the legislature and local governments’ wills to carry the day. I see the Governor’s role here as more of a battle between a strong and weak executive theories than a death penalty fight.

2. If I am the U.S. Attorney General (or a local District Attorney) who has a strong perspective on whether the death penalty is moral (or not), how can and should I use my legal, political and social powers to further this perspective?  

A US Attorney’s primary responsibility is to prosecute violations of U.S. law--including laws he or she thinks are bad ones. Ethically, being a U.S. Attorney would be a difficult job if one had strong death penalty views. AEDPA is designed for efficiency--not error-free adjudication. It's unfortunate, but it's also the law. The USAG, on the other hand, could have more power to influence the law through policymaking.

3. If I am U.S. Supreme Court Justice (or a state Common Pleas Judge) who has a strong perspective on whether the death penalty is moral (or not), how can and should I use my legal, political and social powers to further this perspective?  

Supreme Court Justices, at least since Scalia, seem to enjoy writing books and lecturing. That's probably their safest bet to influence the death penalty debate. Otherwise, risk doing politics through law by letting their personal convictions influence their judging.

4.  If I am a prosepctive juror (or the family member of a murder victim) who has a strong perspective on whether the death penalty is moral (or not), how can and should I use my legal, political and social powers to further this perspective?  

This is cynical, but when the prosecution asks you during voir dire if you have strong views that would preclude you from doing anything other than finding innocence...just say no.

Posted by: Adam P. | Feb 23, 2014 10:32:50 PM

I'm also going to comment on the "If I am a prospective juror (or the family member of a murder victim) who has a strong perspective on whether the death penalty is moral (or not), how can and should I use my legal, political and social powers to further this perspective" question. Adam answers the question quite succinctly, if you want to further your perspective on the death penalty as a prospective juror, your best move is to say nothing to get on a death penalty jury where you can make the decision and influence others. The whole purpose of voir dire is to find the type of person who would use their position as a juror to advocate their own strong perspective on the death penalty or any other critical issue and to prevent that person from becoming a juror. To effectively advocate your strong perspective on anything, the best move is to get yourself placed in a position where your opinion matters and you can influence others - being on a jury provides a great opportunity to do just that.

I think a more interesting question would be whether it is moral for a juror to hide his interests in order to be able to serve as a juror in a death penalty case to advance his strong perspective on the morality of the death penalty. I would answer that it is not moral to do such a thing. As a juror, you are supposed to leave your beliefs and interests at the door and only rule on the case as instructed by the judge and based on the arguments presented by the attorneys for both sides. That is the premise behind the jury system and the application of equal justice generally and using your position as a juror to advocate your own death penalty perspective violates both the jury system and the application of equal justice.

Posted by: Max Reisinger | Feb 24, 2014 7:24:38 AM

1. If I am a Governor who has a strong perspective on whether the death penalty is moral (or not), how can and should I use my legal, political and social powers to further this perspective?
Obviously the Governor has great power and room to adjust death sentencing and capital punishment in their State. See Jay Inslee. Even if the Governor chooses not to call for the elimination of the death penalty, he or she can send the message to the legislature by doing what Jay Inslee did, halting the killing of people until better procedures are put into place. Viewing this issue in the alternative, if one is a Governor for the institution of capital punishment, they may be slightly less powerful. The governor can of course grant clemency, but cannot take someone serving life and up the sentence to death. So the Governor would be left to the democratic process to create more conservative(politically, but ultimately liberal) sentencing procedures. But of course this is not a meaningless power, the Governor should use his or her influence in order to push their morals, after all they were the only individual elected to the state government that that truly won by popular vote of the entirety of that state and thus their morals may be more in line with the constituents than those of the gerrymandered legislative districts. For this reason, elected by a popular vote, the Governor should use his or her power to enact morals legislation which is consistent with their campaign and beliefs. That even includes very liberally enacting clemency grants for those who are against the death penalty in States where the death penalty still exists. I understand that this process is equivalent to a legislative veto and in that sense may seem anti-democratic, but States(through legislation or Constitution) set up a powerful executive in this content, and if they wish to disable the governor's ability to liberally grant clemency, that measure can be achieved through the democratic process. Thus the Governor should feel justified in sticking up for his or her beliefs while liberally granting clemency AND when the Governor feels that the death penalty should be implemented or used more often.
2. If I am the U.S. Attorney General (or a local District Attorney) who has a strong perspective on whether the death penalty is moral (or not), how can and should I use my legal, political and social powers to further this perspective?
Well here we have individuals who are not part of the policymaking in the country or state, and thus in my opinion their views on the death penalty should not play a role. Their only role is to call the balls and strikes according to the state or US code and prosecute accordingly. I have a hunch that Eric Holder may not really want to pursue the death Penalty for the Boston Bomber, but is doing so because he sees that the use of a weapon of mass destruction carries with it a possible death penalty and he should prosecute the crime to the utmost extent given the severity. Therefore he is doing his job, but I also feel that political realities may play a role. E.g. there may be pressure on a liberal attorney general to go after capital punishment when the case is higher profile(much like Eric Holder).

3. If I am U.S. Supreme Court Justice (or a state Common Pleas Judge) who has a strong perspective on whether the death penalty is moral (or not), how can and should I use my legal, political and social powers to further this perspective?
As someone who believes in judicial restraint and orginilaism I am not some who feels that the Courts should play any role in capital punishment. Especially the U.S. Supreme Court, this is a State issue. Allowing the federal court to step in and interfere frustrates the democratic process and federalism at the same time. More importantly it frustrates the idea of the "states as labs" where the states are to try many different methods and the federal government can observe and ultimately pick out the best system.
This does not mean that a SCOTUS judge cannot have influence. Justices write law review articles all the time that are read by millions of people. They have every right to discuss their beliefs in these publications, but taking their moral beliefs and inserting them into a Supreme Court opinion is wrong. This is a body which is unelected, and thus should only be interpreting the Constitution as it stands, by inserting their own opinions they are encroaching upon the judiciary's role. To state the point simpler, why should 9 unelected individual's morals determine all 50 state's law, on a state law issue.
4. If I am a prospective juror (or the family member of a murder victim) who has a strong perspective on whether the death penalty is moral (or not), how can and should I use my legal, political and social powers to further this perspective?
Again, this is an instance where your morals should not play a role. Obviously your morals can, even subconsciously, can play a role in sentencing. A juror can certainly be more receptive to a defendant's plea for life rather than death, whereas if death is on the table a juror in strong favor of capital punishment may not even listen to the facts. While this is a reality, it is a problem that is not going away. I emphasize that it is a problem, because I believe that jurors, much like the courts, should not have a say in the law. The law is the law and the jury's job is to look at the death penalty statute and balance the factors to determine if the person has life or death. Their morals should not come into play.

Posted by: Christopher LaRocco | Mar 4, 2014 10:37:26 AM

I came across an interesting letter written by an inmate who is set to be executed this month in Texas.

http://gawker.com/a-letter-from-ray-jasper-who-is-about-to-be-executed-1536073598

It's worth the read!

Posted by: Katie W. | Mar 5, 2014 12:25:30 PM

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