TCS Daily

A Death Penalty Red Herring - Part 2

By Lester Jackson - October 31, 2009 12:00 AM

Continued from Part 1...

NOTE: Page numbers and footnotes in brackets refer to documentation in the detailed paper downloadable here; those in parentheses refer to all other linked sources.

"Second" Chance Imperfections
On November 9, the Supreme Court will be asked to declare unconstitutional Life Without Parole (LWOP) for juveniles convicted of violent non-homicide crimes, no matter how numerous or vicious. The justices will be implored to hold that juveniles must always be given a "second" chance. If the justices do, it is likely (n5) they will be asked to extend their ruling to juvenile murderers. Will they consider that Singleton was given a chance -- to murder successfully; and Mary Vincent also had another chance -- a chance to live in terror for 23 years until his death from natural causes and to live without forearms for the rest of her life? Will they consider that the Berwid and Bianco children never again had a chance to experience their mothers' love or to forget the nightmarish savagery committed before their very eyes by their extra chance fathers?

One brief (6) "provides examples of the important contributions that can be made by youth when they are given a second chance." This is misleading. First, the cases before the Supreme Court do not involve "second" chances but multiple chances after multiple violent crimes. Second, with all due respect to former Wyoming Senator Simpson (11-13), he shot mailboxes, set fire to abandoned federal property, was involved in a bar fight he did not start and resisted arrest. This does not remotely justify repeated chances for rapists, sadists, violent robbers and attempted murderers. It is simply fatuous to analogize (15, 19) reckless, unthinking teenage behavior with malicious and murderous sadism. Did Simpson ever even think about rape, assault, armed robbery or attempted murder? If not, his self-description as a "monster" drains the word of meaning and it is unpersuasive that he lent his good name to the likes of Terrance Graham (multiple armed robberies) (2ff) and Joe Sullivan (multiple violent crimes, including the double rape, beating, and robbery of an elderly woman) (3ff). A brief purporting to be "in Support of Neither Party" all but explicitly seeks a ruling for Graham and Sullivan on the ground that young brains are "structurally immature" and not yet fully developed (3-4). Why, then, aren't most juveniles vicious criminals?

Those who seek an end to LWOP do not claim (23, 26-27), because they cannot, that there is no risk in releasing felons who have committed multiple acts of violence. In arguing that "the vast majority of adolescents who engage in criminal ... behavior desist from crime as they mature," the Brief for Graham (45) implicitly concedes there are those who will not desist. Obviously, there is no place in the Graham brief for Officer Gillespie, whose murderers were well into their 20s after having commenced their "careers" in their teens. They surely did "mature" -- to the next level, murder of a policeman, illustrating Justice O'Connor's position [8] that youth can indicate a potential for greater rather than lesser future dangerousness. Nor is there room for the victims of Richard Biegenwald (committed murder at age 18 and multiple murders after parole at ages 41-42), Grant Cooper (murdered at 18, 36, 60) and Reginald McFadden (murder at 16 plus rape and at least two murders 25 years later at 41, after "second chance" parole as "rehabilitated" and "an excellent risk for release."). Nor for late bloomers, such as Clarence Ray Allen, who do not start murdering until middle age. For the chance taken to keep him alive after his first murder conviction, he made three more victims pay with their lives [n55]. (Allen's lawyers argued he should be spared because setting an execution date would cause him to have a heart attack [n362].)

So imperfection results in multiple deaths of people who never have committed any crimes. Yet when it comes to giving multiple extra chances to multiple violent offenders, their advocates, who demand perfection for the death penalty, here seek understanding of inevitable human fallibility and mistakes. The very word "chance" shows that the court is being urged to gamble, to play Russian roulette with people's lives.

Let's be very clear. A chance to do right is also a chance to do wrong. Some extra chance beneficiaries justify the faith placed in them. But others do not. If five or six justices seize from a supposedly self-governing society the right to decide who does or does not deserve multiple chances, a price will surely be paid by anonymous people not visible from the safety and security of a judicial ivory tower [9, 42, n305]. Many are themselves quite young today and living normal, healthy, law-abiding hope-filled lives. Renewed acts of violence by human time bombs dropped on an unsuspecting population from that ivory tower will irreversibly -- and with no extra chances -- cost these individuals their health, ability to function, normalcy, happiness and, for some, their very lives. There will be no second chance for the last group -- ever. But the champions of multiple chances for convicted violent criminals will not be demanding perfection to avoid this calamity.

Edelman contended: "It is inevitable that there will be instances where tragedy occurs. But very seldom is a youth released who then commits a serious crime." But, because "very seldom" does not mean never, Edelman effectively condemns unknown innocents to the trauma of serious crime. This is a conscious tradeoff -- without 100 percent perfection for the innocent. Edelman is prepared to impose "tragedy," human sacrifice, for the cause of releasing violent youths. Moreover, "very seldom" -- and indeed far more rarely, if ever -- is the wrong person executed. As Justice Scalia pointed out (18), the possibility of mistaken execution "has been reduced to an insignificant minimum. This explains why those ideologically driven to ferret out and proclaim a mistaken modern execution have not a single verifiable case to point to ...." By contrast, as noted, innumerable innocent lives have been lost and ruined due to the imperfections in keeping convicted murderers alive and releasing others who have a proven capacity for vicious violence.

Manifestly, elites (media, defiant elected officials [33-34] and unaccountable judges) have been far more concerned with the almost non-existent imperfections in executing guilty murderers than with the major imperfections in unnecessarily inflicting suffering on victims who never should be victimized in the first place. In reality, the elite attitude toward the unnecessarily victimized has been virtually blasé, out-of-sight-out-of-mind.

Accordingly, with guilt uncontested, judges once turned loose upon a truly innocent population Joseph Frady, originally sentenced to death by a jury for bludgeoning his victim to death, on contract, so that one eye popped from its socket and a mixture of blood and brains came out.

The country, in the words of the four Frady dissenters, "should awake to what has taken place."

Given ginned up concern about convicting the innocent, it is altogether appropriate and necessary to refute inflated, unwarranted and utterly bogus "exoneration" claims by death penalty opponents. However, some day, they may find their Holy Grail. What then?  When they make well-publicized shrill demands for abolition due to less than absolute perfection, they should be asked this: Will they agree to abolish any parole ever for violent convicts because the system can never come close to determining exactly who will not commit more (and more serious) violent crimes, and thus is unable to guarantee that no law-abiding person will ever again be brutally victimized at the hands of a person previously convicted of such crimes? If opponents do not agree, then their demand for perfection should be seen for what it is: a selective red herring hypocritically used by people obsessed with seeking to save murderers while not caring one whit about the vast imperfections that result in countless wholly avoidable rapes, mutilations and murders of the truly innocent.

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Dr. Jackson, why do you trust the state 100%?
"–Federal Judge Gertner ruled on September 17th that the federal lawsuits related to the four men can go forward, since their causes of action that began in 1968, continued after enactment of a 1974 law that eliminated the federal government’s immunity from lawsuits for wrongdoing by federal agents. In her decision, Judge Gertner didn’t mince words, “… the state prosecution of Limone, Greco, Salvati, and Tameleo was procured by the FBI and nurtured by both federal agents and state officers who knew that the charges were bogus. None of the agents or supervisors involved took steps to stop the prosecution. Indeed, they did just the opposite.” 9"

...Dr. Jackson does not say that he trusts the state 100% (please provide the quotation if you disagree). Besides, this is, as the article states, a Red Herring. The fact that corrupt police, prosecutors, etc. can convict the innocent is no surprise. They can also shoot the innocent with their guns, can't they? This is no more an argument against the death penalty than is the argument that criminals using guns should lead to the abolition of gun ownership. Instead, it merely says that the corrupt should be identified and prosecuted. And if their corruption leads to the execution of an innocent man, then they should be charged with aggrivated murder and executed themselves.


This whole argument is used as a "red herring" to ignore the problems within the crminal justice system and maintain the status quo. The status quo is a very flawed system that convicts more innocent people than most people would think. Many, many, many examples of wrongful convictions are out there for anyone who wants to do the research. Many were on death row and came close to execution. In each of these, the causes can be traced to significant, systemic flaws. The real issue is a flawed system that allows way too many wrongful convictions. Yet, anytime anyone tries to have a rational discussion about a case like the Willingham case the author mentioned, those who have an agenda to protect the death penalty at any costs throw out this "red herring" that its all about abolition of the death penalty. This "red herring" is truly a dishonest argument.

So, stop throwing out this dishones "red herring" and let us have a substantive discussion about the real issue: wrongful convictions.

As far as the death penalty goes, as I mentioned above there have been many exonerations of people on death row and some came within days of execution. So, when people talk about the risk of executing an innocent person there is truly no exaggeration or inflation. The risk is real. To deny it is being dishonest or at least burying your head in the sand in denial.

I actually am okay with the death penalty. I have absolutely no problem with executing the guilty. I am completely opposed to executing the innocent. The authors argument has some serious intellectual flaws. He talks about the inability to acheive "perfection" yet then makes the argument that any claims that an innocent person has been executed are ridiculous. Can he not see the glaring inconsistency in his argument? If the system can't be made perfect, then there is the possibility that the people he accuses of exagerating or inflating the problem could be right and an innocent person has been executed. So which is it? You can't say that perfection is not possible and then turn around and argue the system has worked perfectly. You've got to be smarter than that.

Its sad that those like the author insist on using this "red herring" argument to detract froom the real, very serious issue of criminal justice reform. Its not only dishonest, its really despicable. Saying that you are okay with innocent people being executed is heinous. And, that seems to be what the author has said.

I'm not arguing that we can ever achieve perfection, but the system is currently very, very far from it. When someone's life is on the line we should at least strive for perfection. If those like the author would quit trying to distract from the real issue and would be willing to face the real issue, maybe we could make some progress on moving closer to perfection. We may never get there but we should be a hell of a lot closer than we are.

This entire argument is dishonest and a distraction from the real issue.

Finally, I'll make a little suggestion. The author should talk to people like Anthony Graves and Kerry Max Cook who were both exonerated from Texas' death row. See what wrongful convictions did to their lives. Explain to them that you are okay with the system that stole 18 and 22 years respectively from their lives. Then consider the long list of people who have had significant portions of their lives stolen by a flawed system. It is simply inexcusable to accept the status quo. So, lets start talking about the real issue and leave the "red herrings" on both sides out of it.

Lets talk about issues like:

Prosecutorial misconduct. The numbers show this to be an all to frequent problem and it has been a significant factor in many wrongful convictions, include the Graves and Cook cases I mentioned. Currently, prosecutors can get away with almost anything: withholding evidence, lying, coercing false testimony, knowingly presenting false testimony and fabricated evidence, etc. They are protected by immunity from lawsuits for activities within the prosecutorial function. State bars rarely discipline prosecutors. Even when their actions are criminal they are almost never prosecuted. Absolute immunity corrupts absolutely. Also, in addition to wrongful convictions, the cost to taxpayers for retrials and other costs of this problem is huge. Furthermore, when the wrong person is convicted, the guilty goes free, often to harm someone else. In the Cook case prosecutors were prosecuting a man they should have known was innnocent. Yet, they made an undisclosed deal with a jailhouse snitch for perjured testimony that resulted in the snitch getting a murder charge reduced to manshlaughter and getting time served. The snitch was released and murdered again while prosecutors fought to keep an innocent man on death row.

Then there's the problem with eyewitness identification. I believe this is statistically the leading cause of wrongful convictions. We've known of this problem at least since the 60s. Recently I was reading a case form 1965 or 66, something like that, where the Supreme Court recognized the problem with eyewitness identification procedures and talked about the need to have them done correctly. Yet, more than 40 years later, Texas still has no mandated procedures for line ups.

Then we have the problems associated with defense counsels. Sometimes they are simply incompetent or they are so poorly compensated for representing indigent defendants that they put forth little effort. Then there is the disparity in resources. The prosecution has the police, investigators, crime labs, access to all kinds of experts. Only the wealthy defendants can match those resources.

Also, we have police misconduct, issues with juries, judges, etc.

But, lets just bury our heads in the sand and instead of facing the tough issues lets just yell at each other about the death penalty.

Oh, I left out one of the most significant recent issues. Faulty forensics. We've learned in the last few years that much of the forensic science we rely on is not nearly as scientific as we have been led to believe. There was a recent report by the National Science Foundation, I think, that was very critical of much of the forensic science used in the criminal justice system. Things like fingerprint comparison, ballistics, tire tread analysis really arent'y science. They are just opinions. We've also had major problems identified with forensic labs. The labs need to be separated from police and be completely independent.

Forensic arson science was the issue in the Willingham case that the author mentioned. The supposed science used to convict Mr. Willingham has been completely discredited. So, even if you believe he was still guilty, any reasonable examination of the evidence reveals that there is now insufficient evidence to support the conviction. So, we may never know for sure whether, in his case, an innocent man was executed. But, a man was executed and, today, we can safely say there is not enough evidence to support his conviction. But, the knee jerk reaction of some, like the author, will be to claim that anyone who questions the conviction is trying to do away with the death penalty.

So, no Mr. Author, your argument that those who raise these issues are somehow being dishonest and that their real agenda is to do away with the death penalty is a figment of your imagination. Maybe you should be writing fiction.

I am unfamiliar with this site and was directed here by a link on another site. However, I just looked at a list of some of the author's other articles. It seems he is obsessed with the issue of the death penalty.

Like I said, I'm okay with executing the guilty. Still, I'm not going to be a zealot about it. I have to wonder, why is Mr. Jackson so obsessed with preserving the state's right to kill someone.

Some famous historical figure, I can't remember who right now, once remarked something like: some people say we should bring back public hangings, but, I'd worry more about the people who would go to see the hangings than I would about the person being hung.

Another thing, Mr. Jackson, there's an interesting story I read a while back. It was about a black man in Tennessee who was accused of raping a white woman in the early 1900s. At that time lynchings were still fairly common. This man was tried. The trial was a complete sham and he was of course convicted and sentenced to death. This case was signficant because it was the first time the Supreme Court intervened to stop an execution. The locals were so incensed at the Supreme Court's intervention that, with the complicity of the local sheriff, they broke him out of jail and hung him from a bridge. We now know the man was innocent. In fact, in 2000, almost 100 years later, he was exonerated by a court. So, we know at least 1 innocent man was executed, although not directly by the state. Looking at our current system and the attitudes of many people, I don't think we've made much progress since the early 1900s. I guess we've made some, since we don't have lynchings anymore. But, I can't help but think, if given the chance, there are an awful lot of people out there who'd gladly participate in one.

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