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. What follows refers only to activists, advocates and government policy makers (unaccountable judges; defiant elected and appointed officials).
"Recidivism among murderers does occasionally happen ... the only way to prevent all ... recidivism is to execute every convicted murderer - a policy no one seriously advocates ... Governments that respect ... justice and ... human dignity... do not use premeditated, violent homicide as an instrument of social policy"
-- American Civil Liberties Union
"Governor Huckabee "seemed genuinely surprised that he was held responsible for the criminal acts committed by those whose sentences he had commuted .... The notion ... seemed as foreign to him as the idea that he should refuse all leniency."
-- former Huckabee campaign official
AN ERSATZ ISSUE
Serious implications for the capital punishment struggle arise from the hypocrisy of those who demand absolute perfection for convicted murderers but expect, excuse and shrug off imperfections resulting in preventable brutalization of the law-abiding.
"From the beginning of our Nation," Justice Brennan observed, "the punishment of death has stirred acute public controversy." Nevertheless, perceived death penalty opponents and proponents have agreed on one point: that there are both opponents and proponents. This is wrong. Proponents have needlessly conceded a moral high ground to the self-styled and widely-believed-to-be opponents. The central fallacy is the belief that it is even possible to oppose the death penalty. It is not. The real issue is upon whom it should be imposed - the law abiding or the duly convicted.
The sinister secret of so-called "abolitionists" is that they actually support capital punishment. The only way to deny this is to disclaim any responsibility for a premeditated government policy of extensively sacrificing the safety and lives of myriad law-abiding individuals on behalf of convicted felons, including murderers. Clearly, state policy fostering repeat crime, including murder, should be seen as capital punishment of the innocent.
THEIR OWN WORDS APTLY DESCRIBE WHAT ABOLITIONISTS SUPPORT
Punishment is a penalty for wrongdoing. How, abolitionists might object, can murders of law-abiding victims who have done nothing wrong be called capital punishment or the death penalty, and thus how can they be said to support it? The answer requires no Clintonesque parsing. Opponents' own synonyms for these terms aptly apply to them. They support "state-sponsored killing" (2); "simple murder" ; "foreseeable, state-sponsored murder" (31), "state-sponsored homicide"; "state killing"; "premeditated, violent homicide as an instrument of social policy"; and/or "primitive ... ritual sacrifice" [n363].
"STATE-SPONSORED" RECIDIVIST HOMICIDE
A staple of the death penalty "debate" is whether it is an effective deterrent. This has been hotly contested [n278]. While doubt has been expressed that it sets an example to deter would-be murderers, it obviously deters the murderer himself from ever again committing murder or any other crime. This is not trivial and deserves more than the second-class cliché status of what is often a frustrated last-resort afterthought. Given the certainty of more murders by saved murderers, refusing to condemn the convicted condemns law-abiding victims to execution in their stead. Avoiding this is surely sufficient; deterring those other than the murderer is an additional rather than essential benefit.
Compare executions against recidivist homicides. 723,000 murders and nonnegligent manslaughters in 37 years (1972-2008) resulted in 1,188 lawful executions (0.165%). Nevertheless, aghast at even one such execution [54; n297], abolitionists have used terms like "flood," "substantial" and "skyrocketing" [n283] to refer to the 1,188, even labeling fifteen a "flood" [n223]. So how would they describe the far greater number of preventable unlawful homicides caused by policy they advocate?
As a consequence of decisions of government (all branches, all levels), there is immensely more capital punishment imposed on the blameless than the predatory. That is made clear by available research.
For example, "[o]f the roughly 52,000 state prison inmates serving time for murder in 1984, an estimated 810 had previously been convicted of murder [1.56%] and had killed 821 persons following those convictions" [n272]. As of the end of 2005, 166,700 were in state prison for murder (21). The same 1.56% would suggest about 2,600 new murders by murder convicts. At the end of 2007, of 3,215 prisoners under sentence of death, 8.3% had prior homicide convictions (tables 4, 8). That's at least 267 innocent lives. Finally, myriad murders committed by previously convicted murderers have been well-documented [9-10, 41-42, 52, n272].
This data shows how misleading is the frequent abolitionist claim that, of all felons, murderers are least likely to repeat. A small percentage of a very large number can be striking, and certainly hugely greater than the most farfetched "exonerations" claims (recently 139).
State capital punishment of the innocent extends beyond saving convicted murderers. It includes repeated release of non-homicide convicts with full awareness that some would commit thousands of additional murders. 65.5% of the year 2007 condemned had prior felony convictions. It is safe to assume that a significant percentage of those convicted of homicide but not sentenced to death also had prior felony convictions. A Bureau of Justice Statistics study (1) of 272,111 prisoners (2/3 of all, about 408,166) released in 1994 revealed that 0.8% (between 2,177 and 3,265) were rearrested for homicide within three years (9). A prior study (1) of 108,580 prisoners (57% of all, about 190,500) released in 1983 found 1.6% (between 1,737 and 3,048) rearrested for homicide within three years (6). These figures omit homicides after the study periods and involve but two years' releasees. Studies for all years would show a staggering recidivist homicide total, probably between 60,000 and 110,000 in the 37-year period noted.
2005 is now being studied. Since the 1990s, the prison population has grown and crime has decreased. It does not follow that the policy of releasing violent convicts has stopped or that recidivist crime has ended. The Nov. 2009 murders, discussed below, of four police officers by a Huckabee-freed violent felon illustrate the point; as do the upcoming Connecticut trials of two violent parolees for a triple rape/arson-murder. Less horror is still horror, not ecstasy. Recent data show 1,382,012 violent crimes in 2008 vs. 1,932,274 in 1992, including 16,272 murders vs. 23,760. Also, there were 144,500 state prisoners sentenced for murder at year-end 2006 (37) vs. 166,700 at year-end 2005 (21), a decline of 22,200. Just 53 executions in 2006 contributed to that decrease.
Judge Kozinski (8044-47) compiled a "long, dreary list" of "tragedies [that] could have been averted," eloquently and graphically highlighting the painful cost, in life and suffering, of failing to incapacitate repeat violent felons. Clearly, state policy fostering repeat crime, including murder, should be seen as capital punishment of the innocent.
(On January 19, five justices cited one murderer's recidivism in seeking to rescue another convicted murderer, guilt uncontested . They oxymoronically complained that a juror's "sister had been murdered by a man after he completed serving a life sentence (n1)." They did not explain how, short of dying, one could "complete serving" a true life sentence [9-10].)
STATE RESPONSIBILITY FOR PUBLIC SAFETY: DO AS I SAY NOT AS I DO?
The screeching protest can be heard. Second chance rehabilitation is a noble goal. When convicted felons who have been or are in government custody commit new violence, including murder, it is not government's fault but simply an unintended, unavoidable and thus acceptable tragedy.
Let's see what the state itself says and does about that.
The Supreme Court has held no affirmative Constitutional duty exists to protect the law-abiding public (although, given modern judicial values, convicted criminals must be protected from their professional colleagues - even cigarette smoke assault). However, the Preamble states that one purpose of the Constitution is to "insure domestic Tranquility." Moreover, government's responsibility for public safety has been repeatedly recognized. Gov. Schwarzenegger declared: 'The first duty and highest obligation of government ... is to protect public safety." Examples are endless.
Furthermore, government has been sued for failure to provide protection. In 1999, Buford Furrow, while on parole, shot five children and murdered a postal worker. In 2008, Washington State agreed to pay $2.25 million to settle a $15 million lawsuit for negligent supervision of the violent parolee. In 1984, career recidivist George Agosto, with one homicide already under his belt, shot three New York City police officers, murdering Thomas Ruotolo. Agosto himself was puzzled by his parole: "the law's mistake. It's crazy, I don't know. Why take the chance on me?" The two surviving officers and Ruotolo's widow sued New York State for wrongfully allowing Agosto to remain on parole. Two case dismissals were followed by two statute amendments to allow the suit. Finally yielding, the state's highest court noted that the legislature had found and demonstrated "an adequate moral obligation."
Despite the widespread view that public safety is a critical government function, for decades, responsibility has been shifted to private individuals and businesses. Property owners and business establishments have always been liable for physical hazards causing accidents (e.g., defective sidewalks, failure to clear ice, slippery floors, etc.) (226). However, in 1974, singing star Connie Francis was raped in a motel, which she sued for failure to provide a secure lock. After a jury awarded her $2.5 million, she settled for $1.5 million (2). The rapist was never caught and hence went unpunished. Landlords and restaurateurs (227) similarly have been required to provide security to protect tenants and patrons in "high-crime" areas (which they might not be but for freed recidivists). And bar owners are responsible for deaths and injuries caused by inebriated recidivist (15) patrons (n5). (At the same time, the Supreme Court considers repeat drunk drivers to be non-violent. That should comfort victims.)
The ultimate example of expecting private in place of public security is the government forcing private businesses to pay damages for hiring unleashed recidivists in reliance on the government. In 1980, Maria Salinas was robbed and raped in front of her children by cab driver Robert Jenkins, a multiple recidivist under indictment for attempted murder. When she sued the Fort Worth Cab & Baggage Company for hiring him, the Texas Supreme Court held the company should have independently investigated Jenkins' background instead of relying on a police-granted taxi driver permit.
"The common thread (227) in all these cases is foreseeability." The person or business sued is presumed to be able to foresee a likelihood of crime and take steps to prevent it. In 1970, the District of Columbia Circuit Court of Appeals, in assigning liability to landlords, explained (22) foreseeability: "It would be folly to impose liability for mere possibilities. But we must reach the question of liability for attacks which are foreseeable in the sense that they are probable and predictable."
That seems to make sense and this piece is assuredly not an argument against private security. But shouldn't the state at least be held to what it demands of those outside government? Since recidivism is clearly foreseeable, even guaranteed, isn't the state responsible for avoidable crime resulting from laxity in preventing recidivism?
One type of second degree murder involves "a depraved indifference to human life" manifested by "a grave risk of death to another person," causing that person's death. According to the law's authors: "depraved indifference murder is 'extremely dangerous and fatal conduct performed without specific homicidal intent but with a depraved kind of wantonness: for example, shooting into a crowd, placing a time bomb in a public place, or opening the door of the lions' cage in the zoo'"
Isn't that a perfect description of what the state does when it frees recidivists?
(Is there something wrong with this picture? The state holds private individuals and businesses liable for recidivist crime inflicted on the public by the state itself, expecting them to foresee and prevent what it can foresee and prevent but does not. The state repeatedly releases a criminal, issues a permit indicating that he is qualified for a job, and then orders a private employer to pay damages for hiring him; employers granting freed convicts the second chance sought by rehabilitation theorists are condemned. When the state is sued, as in the Furrow case, taxpayers pay damages awarded for crime caused by state policies and decisions (advocated by activists who have no direct personal liability). In other words, the state unleashes preventable crime on taxpayers paying to be protected, who must then pay for government failure to provide what they paid for.)
Continued in Part 2...