TCS Daily

Death Penalty Questions for Sotomayor

By Lester Jackson - July 16, 2009 12:00 AM

NOTE: Numbers in parentheses are pages and footnotes in the detailed paper downloadable here.

The death penalty has received little attention in the Sotomayor debate. However, when a massive 707,000 homicides in 36 years (one every 27 minutes) result in 1,136 executions (0.16%), capital punishment has been all but abolished (42-43). What remains is a costly, agonizing farce, dragging out cases for decades (48). With no end in sight to intolerable homicides, and the U.S. Supreme Court having played a major role in this fiasco, the following questions (drawn from actual cases) will have continuing relevance in illustrating the danger of confirming activist justices who abuse their power and the public's trust. They should be addressed not only to the current and future appellate court nominees, but to the public and, especially, Senators who vote on nominees--and in turn face voters.


Does the Constitution require that a convicted murderer be allowed to succeed with the argument that he should not be executed because he only endangers old ladies, to whom he would not have access if sentenced to life without parole? In light of experience with pardons, escapes, murdered prison guards and inmates, law repeals, murders outside prison ordered by spared convicts inside, et cetera, can life without parole and lack of future dangerousness ever be guaranteed? If not, does the Constitution nevertheless mandate that trial judges must mislead juries by so guaranteeing (9-10)?

Can a man be considered mentally retarded if he carefully plans a rape and calculatingly murders the victim to avoid capture and return to prison (12-13)? Does the Constitution simultaneously bar a death sentence for murder with "insufficient" torture or suffering and for barbaric torture when, no thanks to the torturer, the victim does not die but endures immediate and lasting suffering (nn288, 98)?

Do you agree with justices who say that what is "heinous" if committed by a person one day over 18 becomes merely "irresponsible" if he is one day under 18 because such a murderer is a "juvenile," while at the same time, a victim of 16 is an "adult woman" (7; nn265, 334)? Is anyone nearly 18 years old so deficient in "moral culpability" that it is "indecent" and "uncivilized" to expect him to appreciate the wrongfulness of premeditated torture and murder and joyfully boasting about it (n363)? Where does the Constitution say that he must be kept alive "to attain a mature understanding of his own humanity" (53) and possibly murder again?

When a 300-pound grown man tortures and rapes an 8-year-old girl (to the extent that she requires surgery), is this inadequate "moral depravity" if she does not die? Should we forget his mature moral culpability because he still has "dignity" that must be "respected" to "allow him to understand the enormity of his offense," even though the offense is not enormous enough to justify execution (15, 53)?

Do you agree with justices who have said rape under threat of death, three weeks after giving birth, is not necessarily harmful (n265); and one cannot be expected to foresee new murders (an entire family, including a two-year-old) when he smuggles a gun-filled chest into a prison to help two convicted murderers escape--one serving a life sentence for murdering a guard during a prior escape (52)?

Do you agree that, as a group, the depraved should be rewarded with reduced punishment because their numbers have grown (16); and, for individuals, do you agree that increased depravity merits a court-invented constitutional right to commit new depraved acts, including murder, free from punishment (42; n265)?

Do you agree with Justice Brennan that the battle over the death penalty is a moral one (5)?

Does the Constitution grant five justices the power and right to decide if democratically-determined criminal penalties are morally "unacceptable," and to reject them (n243)? If yes, why?

Must what constitutes "decency" be determined by five justices because "public perceptions of standards of decency ... are not conclusive" (36)? Why? Are the moral judgments and values of five Supreme Court justices superior to those of the American people and four other justices (15-16)? If yes, why?

Do you believe five justices are Constitutionally justified in asserting, contrary to numerous recent cases increasing jury responsibility (e.g.), that there is no basis for confidence in the judgment of decent jurors who vote for death sentences (16)? As recently as last month, seven justices declared: "Jurors routinely serve as impartial fact finders in cases that involve sensitive, even life-and-death matters. ... in all cases, juries are presumed to follow the court's instructions" and "exclude ... raw emotions." Why are five justices justified in declaring the opposite when death sentences are imposed (n238)? Who should decide what is "moral depravity" and "moral culpability" - justices, or decent jurors and elected legislators?

Is it moral to value, in practice, the life of a law-abiding innocent citizen vastly less than that of a clearly guilty barbaric murderer (42-44, 47, 39, 19-20)? Is it moral to demand absolute death penalty perfection, with heartless unconcern for the perfect certainty of causing new innocent victims of clearly guilty murderers, kept alive by mistakes in catering to abolitionist sensibilities (10; nn49, 50, 52-55, 272)?

Is it profoundly immoral for murder cases to last over thirty years? Given the original torture inflicted--often sadistically--upon victims, is it moral to compound that torture by forcing their also-victimized families to endure decades-long obstructive legal proceedings unrelated to guilt or innocence (49-50)? Do you agree with Justice Stevens that the families of those raped, tortured and murdered are only "third parties" and it is a "misnomer" to deem them also victims (n305)? Is it moral for abolitionists to use the very torture they have inflicted, by manipulating a legal system run amok, as a weapon to compel proponents to surrender by accepting abolition and reduced sentences to relieve this (12; n321)?

Is it moral to label executed, sadistic, and premeditated murderers the real "victims" of violence and to "love and care" about them, empathizing with their plight rather than that of those they victimized (55, 41)? To be considered "decent" and "civilized," must one show more concern for the "suffering" and "humanity" of the cold-blooded than their past--and future--victims (19-20, 47, 15-16; n363)?

Should voters tolerate elected Senators who vote to confirm more judges who act upon the belief that the values of five unelected, unaccountable justices trump the public's in a representative democracy?



Crimes of diminished capacity
"..when a massive 707,000 homicides in 36 years (one every 27 minutes) result in 1,136 executions (0.16%), capital punishment has been all but abolished (42-43). What remains is a costly, agonizing farce, dragging out cases for decades (48). With no end in sight to intolerable homicides, and the U.S. Supreme Court having played a major role in this fiasco,.." etc.

When we condemn someone to death, we presuppose that we have the right guy. Often, that doesn't turn out to be the case. Look at the findings of the Absolute Innocence Project. How sad to kill a second innocent person, after an unknown perp has killed the first.

Also-- to continue to believe that the swift application of the death penalty might serve some deterrent function would be not only specious but greatly outdated. Although I'm sure it makes sense to many. I think you will not find appreciable differences in homicide rates in states or metro areas without the penalty, as opposed to those with.

In fact Texas, which has always applied the death penalty with a far greater enthusiasm than any other state, continues to enjoy a noticeably elevated level of interpersonal violence.

The problem is this: the majority of homicides and other 'depraved' crimes, that is those that entail callous or extreme violence toward the victims, are committed by people with diminished capacity. In fact the whole thrust of the argument that people convicted of violent and depraved crime should be spared the death penalty if their IQs are below 70, stems from the fact that most of them hover right around 75-80 IQs, with many below. They're in a category quite distinct from the very well thought out murderer, who plans for months and then kills his wife.

These people don't make a causal connection between a possible death sentence and their employment of violence to gratify deeply held and mostly unconscious urges. They are impulse-driven. And in the enthusiasm of the moment, they don't think at all. No more than your dog does, in fact, when he's chasing a squirrel. If he catches it, the squirrel is chowder.

Just so, the diminished capacity individual goes out and prowls for prey. He is focused on the kill, and may do so gratuitously against an unresisting store clerk, in the commission of a robbery.

I have no objection to the execution of depraved perps with diminished capacity. But the other problem arises, that juries tend to convict when they believe the defendant is guilty. And they're acting on limited information.. so they convict a high rate of innocent suspects.

The police need a perp when a horrible crime is committed. So they find some likely suspect, not too bright, and intimidate him into testifying falsely against himself or not offering an effective case that he didn't do the crime. Then they carefully build their case for a conviction.

Eyewitness testimony in particular is often wrong. The suspect's face often becomes fixed in their mind AFTER they see the suspect in photos or a lineup, not before.

And there is the natural desire for closure, and retribution. So when someone nice gets raped, tortured or killed, SOMEONE has to be made to pay.

Currently a great many such people, convicted and with death sentences pending, are being exonerated by DNA or by the real perp coming forward. So my feeling is we should ease up a bit on our thirst for BLOOD VENGEANCE, and come to terms with the fact that very often we don't manage to convict the right person for the crime.

When we are very, very sure we have the right person, I would execute them. This kind of criminal is not a candidate for rehabilitation.

Who trusts the FBI to always get their man?
"Timeline of the FBI’s four-decades long cover-up of complicity in Edward Deegan’s murder, and the agencies frame-up of four innocent men"

What Sotomayor 'debate'?
There's no 'debate' folks. Just like in Global Warming.

She's going to get confirmed even if it discovered she molests children and takes Mexican drug lord money or worse. There's no 'debate'.

Anyone who claims otherwise is nothing more than a Sotomayor 'denier', that's all.

So this article and all the comments (other than mine here) is just one waste of tcp/ip packets flying across the internet. That's all.

Harsh but true? Too bad. Welcome to the United States of Zimbabwe.

"The economy is Obama's Katrina."

Surveillance world
Cell phones certainly capture an impressive amount of police brutality on video. And their GPS function is coming in handy to track abductions, where the victim can still reach the phone.

And the downtown areas of many modern cities, like London, Washington or Hong Kong, are covered virtually 100% by cameras. You can't get away with much in the shadows any more. Just try walking past an embassy in a Richard Nixon mask. See what happens next!

Even when many crimes take place in privacy, there are so many cameras out there you can often see who's been coming and going where the crime takes place.

It's so comforting to know Big Brother is watching over us. I'm feeling warm and fuzzy.. and distinctly law-abiding!

We're already Orwellian
A little late for that, Joanie. It's already been done. Between Homeland Security, the NSA blanket request to see all communications anywhere, between anyone, the TSA's right to inquire into the backgrounds and credit ratings of any airline passenger and the All Seeing Eye (see DARPA and Total Information Awareness)..

..between all those efforts, each with unlimited funding, they already know just about everything there is to know about us. Every phone call you've made since the end of 2001 is right there somewhere, on the tape.

And with Google Earth able to get close up views of every square meter of the earth's surface, you'd better wear a swim suit if you want to go sunbathing on the roof of your condo. They have eyes in the sky.

I'm sure if they want, they can also get internal shots of you, from your CAT scan records.

Everyone who keeps records cooperates with Uncle Sam. You have no secrets. Homeland Security can bring up your credit score or medical records a lot quicker than you can yourself.

Welcome to the future. It was last year.

Scientia est potentia
Or.. Knowledge Is Power.

Here's a good look at the Information Awareness Office (formerly Total Information Awareness) logo:

Spooky come to life, eh? This all happened back in 2002.

In fact I've driven past one of their sites, run by the US Navy up in the radio dead zone along the Virginia- West Virginia border. It's a miniature dish and dome city of giant antennae. But you can't get anywhere near it, you have to see it from the peak of a nearby mountain.

Talk is cheap and tcp/ip packets are not as cheap
So I respectfully disagree.

ObamaGump has only one qualifying standard for people in important posts he gets to nominate for: whether they are a loyal crony with actually little brains.

This is like a thread 'debating' whether the Earth is flat or round, if you ask me.

To each his/her own, I suppose.

Project Echelon
Here's an article on the Sugar Grove station, from back in pre-9/11:

This side of Pendleton County is one of the prettier places on earth, and you can drive along the South Fork of the South Branch of the Potomac right past the base. There used to be a road going across into Virginia, past the station itself.. but that road's been erased.

This was before they admitted to data sampling. The station is a part of the worldwide array that samples all our communications. Which would be useful.. except that they only have a handful of people who speak Farsi, Urdu and other pertinent languages. So I'm thinking they actually accomplish very little up there.

Still, it's a nice place to live, except that you're in the radio shadow. So if you set your dial on "roam" it just goes around and around, never finding a station. A lot of naval officers retire and buy farms there.

I feel so safe now
They absolutely know what kind of pasta you buy. In fact whenever I'm in the checkout line I just scan my little keytag card and they say 'Oh hi, Mr Bean'. There are no secrets any more.

Which is fine by me. I look so legit, Transport Security thinks I must be one of the patrons. They just wave me on through, and say 'Have a nice trip'.

Little do they know.. hyeh hyeh..

Fear what is not understood
One can now buy a stainless steel wallet to hold your new rfid passport to prevent anyone from scanning it without permission. (A simpler idea is to smash it.)

No seems to worried about anyone tracking them using their cell phones or their electronic toll booth pass.

It was interesting to watch "The Lives of Others". It was about the Stasi watching their citizens in '84. The quantity of detailed records were astounding, which required even more resources to keep such accurate records.
Maybe the best option is to saturate our 'watchers' with too much information, which is what I think the internet is doing now.

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