For nave followers the notion that capital punishment is unfair is an uncritically accepted faith based on logical fallacies unwarranted assumptions and insupportable assertions. For knowing leaders the demand for fairness is a cynical ploy intended to abolish the penalty rather than make it fair.
CONTINUED FROM Part I
NOTE: It is the readers choice whether to consult or disregard the many links below. The main goal here is to be easily understood while providing proof for those who might think that what follows is fiction. This is written to enable easy reading without looking at the links. Where possible links are provided directly to specific locations within linked items. Otherwise if available specific page or part numbers within linked items are provided in parentheses next to links. Nearly all items are freely accessible.
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The Court thus assumes the role of a finely tuned calibrator of depravity…." Justice Byron White
INNOCENCE CLAIMS: AN UNAVOIDABLE DIVERSION
Make no mistake about it. Wrongful conviction allegations are not made out of anxiety about anyone wrongfully convicted. Instead the single-minded Fairness Phony objective is to abolish the death penalty for the overwhelming majority who are clearly guilty. Using endless repetition one tool is to shield the guilty under the umbrella of the infinitesimal number of those convicted of murder who may be not guilty. The Phonies have convinced many who do not have the time or desire to scrutinize their claims. There is no need to repeat what numerous others have addressed: the falsity of most innocence contentions.
Death penalty supporters obviously do not seek execution of innocent people. The critical issue here is whether executing the guilty is fair period. That and only that is what this article is about.
Murderer advocates are just that: advocates for murderers. So again no one should think that opposition to capital punishment by activist Fairness Phonies has anything to do with guilt or innocence. Yet they have had a field day calling for the end of capital punishment when DNA has shown someone was wrongfully convicted (but never actually executed). However with the increasing reliability of scientific tools would these opponents agree to the death penalty when DNA conclusively demonstrates guilt? Of course not!!
On May 28 1995 Lesley Stahl of 60 Minutes asked murderer advocates Barry Scheck and Peter Neufeld how they could argue that DNA must be used to prove innocence but not to prove guilt. Like Clarence Darrow and Rose Bird (later Parts VI VII) they did not bat an eyelash. They responded that DNA is reliable in proving innocence but not guilt. But when not directly cornered Scheck declared that DNA must be used to disprove guilt in order to find the person who really committed the crime." Is anyone so gullible as to believe that Scheck would agree that any actual murderer should ever be executed?
Not all murderer advocates are quite so shamelessly two-faced at least not when communicating with each other. For death penalty abolitionists DNA has provided a public relations windfall. But this has mostly applied to convictions that took place before DNA proved so reliable and routine. The more forthright opponents have openly conceded and warned that from their point of view DNA is a time bomb. Ultimately old cases will all be resolved. What about new cases where DNA conclusively proves guilt?
Carol and Jordan Steiker feared the peril" that as DNA increased confidence in convictions this could salvage" (622) rather than lead to abolition of capital punishment. Bryan Stevenson cautioned (25) that it is misguided" to focus on the wrongly convicted" because in his view no murderer should be executed.
Ultimately then Fairness Phony efforts aim to save the guilty rather than the innocent. No abolitionist would ever agree that capital punishment is appropriate even when evidence of guilt is not just beyond a reasonable doubt but overwhelming." Indeed that is the very definition of abolitionist."
Although the Fairness Phonies seek precise accuracy in sentencing those they concede are guilty the Steikers have objected to efforts to assure the factual accuracy of determining guilt in the first place. Yes they genuflect to concerns about convicting the innocent. But their real protest is against (612) shifting constitutional criminal procedure toward limiting the vindication of constitutional values … in tension with verdict accuracy." For them convicting the guilty takes a back seat to promoting abstract values (such as dignity fairness or equality) even at the expense of accuracy in criminal trial verdicts."
Translated into plain English as will be further shown (e.g. Part III) the legal system has been hamstrung by judicially invented constitutional" rights nowhere found in the Framers creation. These so-called rights are often confined to blocking conviction of the guilty. And for Phonies if the guilty go completely free so much the better. This is not about trade-offs that free some guilty in order to guard against convicting the innocent. This is about protections solely for the clearly guilty period.
Judicial murderer advocates have made this clear. For example in 1977 repeat rapist Ricky Knapp murdered Linda Jill Velzy an 18-year-old college girl. He confessed three times and was caught in the act of exhuming her body for re-burial in what he thought was a better hiding place. In overturning his conviction a bare majority of New York States highest court judges conceded that the evidence against Knapp was overwhelming" (173 177). On more than one occasion New York high court judges have granted total freedom to murderers whose guilt was supported by overwhelming proof. (Later Part IX.)
U.S. Supreme Court justices also have directed their efforts at saving the guilty rather than rescuing the wrongfully convicted. In 1968 four years before five justices invalidated all existing death penalty statutes six justices reversed the death sentence of a cop killer. But they stressed that they were not rendering invalid the conviction as opposed to the sentence in this or any other case." Even overtly anti-victim Justice Stevens (joined by OConnor Souter Ginsburg and Breyer) acknowledged (321) the fact that habeas corpus petitions that advance a substantial claim of actual innocence are extremely rare …Almost never suggested … is that the prisoner was innocent …." Notwithstanding the presumption of innocence Stevens even conceded: Experience teaches us that most people formally charged with crime are guilty."
In sum because Fairness Phonies revile any execution as unfair their focus is not on avoiding wrongful conviction but on minimizing sentencing of the rightfully convicted. Again that is what this article is about.
CALIBRATION FAIRNESS-PHONY STYLE
Notwithstanding espousal by many justices often a majority and countless academics the worst that can be said about the contention that fairness can be accurately calibrated is that it is absurd if not outright delusional. In 1971 just one year before five colleagues declared a still ongoing decades-long guerilla war (185) against capital punishment Justice Harlan observed that there could be no simple formula" to identify cases calling for the death penalty.
(A) The Paramount Value: Because Victims Dont Count Dont Count Victims
Garbage-in/garbage-out" is a term coined because no calculator can yield results any better than the data fed into it. Because any formula or computer model for accurately" calibrating morality is going to depend on its criteria the line is crossed from the silly to the sinister when confronting actual proposed concrete fairness factors. In reality these factors are nothing but the value judgments of the programmers. Fairness Phonies themselves thus provide the best refutation of their precision-morality oxymoron.
In this regard a striking Indiana University Law School Symposium devoted to a proposed model death penalty code" is must-reading" for living violent-crime victims tormented murder victims survivors as well as those who care about them and yes for those who care about fairness must-reading because it demonstrates just what they are up against. This conference exposes the murderer-advocate mindset in all its naked ugliness. It is highly doubtful that its recurring one-sided fairness" motif would ever be accepted by most law-abiding people.
The participants proclaim as an axiomatic presumption merely to be asserted without any need to be demonstrated that the criteria for capital punishment must be extremely narrow" to ensure that its imposition is rare" a value shared and imposed by justices who decree mercy for merciless murderers. Having made it rare they turn around and complain that it is unfair because it is rare. This sets the stage for the real objective: to save all murderers no matter how many victims they slaughter and how brutally.
In pursuit of their objective Fairness Phonies do not worry about victims. Indeed they dare not if they are going to torture already traumatized victims and create new ones without being conscience-stricken. Obviously it is far easier to champion convicted murderers when their victims are completely ignored and not given one seconds thought. If murderer-advocate justices had their way which five once did victims would be thrown out of court (16). In their world fairness has little or nothing to do with victims who are or should be a non-calibrated non-factor. And victims with the temerity to speak up in protest must be treated with hostility and contempt.
Victims view of justice is unworthy of consideration. Lest there be any doubt the Symposiums welcoming remarks and four panel discussions take up roughly 44-45000 words. Of that number the word victim" appears 19 times according to Microsoft Word. The majority of mentions are general while seven profess false concern for victims to justify death penalty opposition. There is not a single mention of victims as a factor in support of capital punishment.
Victims simply do not count in fairness or moral accuracy" calibrations. This point is glaringly punctuated by Sundbys 2350 words devoted to his quest for Moral Accuracy" which do not include the word victim" not once!
Thus a critical factor is banished from the fairness calculus. It does not appear to occur to the panelists to weigh the value of a barbaric savage against the value of his decent law-abiding victim(s). For Fairness Phonies this is unnecessary because as noted they assign virtually no value to the lives of victims while prizing highly those of savage murderers. The hypocrisy is mind-boggling when like Justice Brennan they also prattle on and on about the human dignity" of their idols and how everyone is equally human. It turns out that in their eyes victims are far less equal than their torturers.
As Dr. William A. Petit poignantly and agonizingly explained: If you allow murderers to live youre giving them more regard more value than many people who have been murdered."
This is clearly demonstrated by data that can be calculated. Simply stated between 1972 and 2012 there were 783832 murders resulting in 1369 executions as of February 26 2014 or 0.175. In other words the life of one murderer is worth the lives of 572 murder victims. That is one measure of the value placed on victims and murderers by the unrepresentative elitists who have captured the legal system. Another measure is provided by leading death penalty abolitionists" who have unashamedly declared that they prefer the murders of 100 decent law-abiding victims to the execution of one convicted murderer.
Moreover while abolitionists as discussed above constantly allege wrongful convictions their worst case only serves to demonstrate the position taken here. The self-styled Death Penalty Information" Center touts what it calls an Innocence List" of those supposedly exonerated" (but not one actually executed later Part XI). If for arguments sake the list is taken at face value as of September 8 2014 its total number was 146 146! Many if not most of that number were anything but innocent (see e.g. here and here). In any event compare 146 to 783832 murder victims. There is absolutely no doubt that all of the latter were absolutely innocent. For the record 146 is 0.0186 of 783832.
Finally on April 26 2014 The Economist implied that the death penalty should be abolished because Americas homicide rate declined sharply" to 4.7 murders per 100000 people in 2012. This was conveniently omitted: in a population of 314 million that antiseptic-sounding number equals 14827 murders with grief multiplied by all the loved ones suffering from the losses. Meanwhile the same people who so airily dismiss the murders of nearly 15000 innocent law-abiding people go ballistic that in 2013 39 barbarians were executed and as noted 1369 were executed for nearly 800000 murders in four decades. To top off the insult added to the horrific injury of real victims another professor found it disturbing" (458) when hundreds of thousands of murders in 26 years resulted in 3000 very much alive convicts on death rows.
Yet again hard numbers show that death penalty opponents place an extremely high value on convicted murderers lives and a very low value if any on those of their victims. The fact that murderer advocates often feel a need to feign sympathy for victims shows just how inexplicable and untenable their true values are.
To homicide survivors and those who care about them the idea that the lives of murder victims are as valuable as if not far more than those of their murderers is as elementary as 22. But for murderer devotees this concept may as well be rocket science. The latter hold sacred the lives of the most brutal murderers while disdaining the lives of their victims. Illustrating the vast gulf between murderer and victim supporters Emily Bazelon sees 1300 executions as shockingly high." Victims and other law-abiding people should be forgiven if they view that number as shockingly low." Again 1369 executions are 0.175 of 784000 murders. Compare that to the Phonies dismissive attitude toward 14827 murders in a single year.
Clearly contrary to the Fairness Phony false contention that wrongful executions are rampant (Part I) the tragic truth is that even well-deserved executions are not rampant. Indeed one of the reasons all capital punishment statutes were nullified in 1972 was that there were so few" executions (Part VII).
The hypocrisy of these numbers is breathtaking. Fairness Phonies rant about what is least quantifiable: conscience and value judgment. Yet they ignore what can be quantified. Their utterly one-sided view of fairness is demonstrated by at least four different numbers new victims they would sacrifice to save one murderer victim" mentions execution rates and their own infinitesimal innocence list."
Many if not most law-abiding individuals would likely consider inclusion of victims to be vital to any evaluation of fairness. Nevertheless with victims scorned by those who misrule the legal system no one should be surprised by frequent indefensibly irrational sentences.
CONTINUED IN Part III
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Lester Jackson Ph.D. a former college political science teacher views mainstream media truth suppression as essential to harmful judicial activism. His recent articles are collected here. _______________________________________
Copyright ©: 2014 Lester Jackson Ph.D.
