Sunday, June 1, 2008

Rutgers Criminal Law and Philosophy Conference, May 30-31, 2008

Naturally, the most fun and insights were to be had in the breaks and at lunch. I express my gratitude for the great hospitality and attention these experts afforded an amateur.

In no order.

1) New Jersey prosecutors are at will employees. They cross the boss, they are at a loss.

2) Decriminilization of adult pleasures was common ground. I disagreed, advocating the buyer have a license revoked after getting in trouble from losing control of the pleasure. I may write a more detailed argument latter.

3) As an extreme utilitarian, I advocated all crime become strict liability crime, and that sentencing address the person, less the act. Each conviction stands in for dozens and hundreds of crimes, for which the criminal has virtual immunity.

4) There was an objection to allowing suing prosecutors and judges. The lawyers could support such litigation but only for misconduct, not for negligence. They are too busy. Naturally, all productive members of society are busier than they are and should have their immunities for the same reason, too busy.

5) No one knew that "reasonable" meant, "In accordance with the New Testament." They explained that the reasonable person had to be a fictional character to maintain the objectivity of the standard. If one could think about how a friend with great common sense would have behaved, it becomes a subjective term.

6) Inculpatory ignorance of non-criminal law may serve as a defense outside of a criminal trial. No one knew the case law in a regulatory dispute.

7) We argued the death penalty. Knowledge of the date is cruel. The method is kind, being less and more briefly painful than the deaths of 90% of us. There is a distressing error rate.


dudleysharp said...

The error rate with the death penalty is very low.

First, there is no proof of an innocent executed in the US, at least since 1900.

The evidence for truly innocent folks sent to death row shows that about 25 people have been so wrongly convicted, or about 0.3% of those so sentenced since 1900. Of those, they have all been released upon post conviction review.

Can we do better. Probably. But, the death penalty is, very likely, the most accurate of criminal sanctions.

The claims that the actual innocents sentenced to death row is much higher is, quite simply, a fraud, easily seen with a little bit of fact checking.

dudleysharp said...

The Death Penalty: More Protection for Innocents
Dudley Sharp, Justice Matters, contact info below

Often, the death penalty dialogue gravitates to the subject of innocents at risk of execution. Seldom is a more common problem reviewed. That is, how innocents are more at risk without the death penalty.
Living murderers, in prison, after release or escape or after our failures to incarcerate them, are much more likely to harm and murder, again, than are executed murderers.
This is a truism.
No knowledgeable and honest party questions that the death penalty has the most extensive due process protections in US criminal law.

Therefore, actual innocents are more likely to be sentenced to life imprisonment and more likely to die in prison serving under that sentence, that it is that an actual innocent will be executed.
That is. logically, conclusive.
16 recent studies, inclusive of their defenses,  find for death penalty deterrence.
A surprise? No.

Life is preferred over death. Death is feared more than life.
Some believe that all studies with contrary findings negate those 16 studies. They don't. Studies which don't find for deterrence don't say no one is deterred, but that they couldn't measure those deterred.
What prospect of a negative outcome doesn't deter some? There isn't one . . . although committed anti death penalty folk may say the death penalty is the only one.
However, the premier anti death penalty scholar accepts it as a given that the death penalty is a deterrent, but does not believe it to be a greater deterrent than a life sentence. Yet, the evidence is  compelling and un refuted  that death is feared more than life.

"This evidence greatly unsettles moral objections to the death penalty, because it suggests that a refusal to impose that penalty condemns numerous innocent people to death." (1)
" . . . a serious commitment to the sanctity of human life may well compel, rather than forbid, (capital) punishment." (1)

"Recent evidence suggests that capital punishment may have a significant deterrent effect, preventing as many as eighteen or more murders for each execution." (1)
Some death penalty opponents argue against death penalty deterrence, stating that it's a harsher penalty to be locked up without any possibility of getting out.
Reality paints a very different picture.
What percentage of capital murderers seek a plea bargain to a death sentence? Zero or close to it. They prefer long term imprisonment.
What percentage of convicted capital murderers argue for execution in the penalty phase of their capital trial? Zero or close to it. They prefer long term imprisonment.
What percentage of death row inmates waive their appeals and speed up the execution process? Nearly zero. They prefer long term imprisonment.
This is not, even remotely, in dispute.
Life is preferred over death. Death is feared more than life.
Furthermore, history tells us that "lifers" have many ways to get out: Pardon, commutation, escape, clerical error, change in the law, etc.

In choosing to end the death penalty, or in choosing not implement it, some have chosen to spare murderers at the cost of sacrificing more innocent lives.
Furthermore, possibly we have sentenced 20-25 actually innocent people to death since 1973, or 0.3% of those so sentenced. Those have all been released upon post conviction review. The anti death penalty claims, that the numbers are significantly higher, are a fraud, easily discoverable by fact checking.

6 inmates have been released from death row because of DNA evidence.  An additional 9 were released from prison, because of DNA exclusion, who had previously been sentenced to death.

The innocents deception of death penalty opponents has been getting exposure for many years. Even the behemoth of anti death penalty newspapers -- The New York Times -- has recognized that deception.

"To be sure, 30 or 40 categorically innocent people have been released from death row . . . ". ' (2) This when death penalty opponents were claiming the release of 119 "innocents" from death row. Death penalty opponents never required actual innocence in order for cases to be added to their "exonerated" or "innocents" list. They simply invented their own definitions for exonerated and innocent and deceptively shoe horned large numbers of inmates into those definitions - something easily discovered with fact checking.

There is no proof of an innocent executed in the US, at least since 1900.

If we accept that the best predictor of future performance is past performance, we can reasonable conclude that the DNA cases will be excluded prior to trial, and that for the next 8000 death sentences, that we will experience a 99.8% accuracy rate in actual guilt convictions. This improved accuracy rate does not include the many additional safeguards that have been added to the system, over and above DNA testing.

Of all the government programs in the world, that put innocents at risk, is there one with a safer record and with greater protections than the US death penalty?
Full report -  All Innocence Issues: The Death Penalty, upon request.

Full report - The Death Penalty as a Deterrent, upon request
(1) From the Executive Summary of
Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs, March 2005
Prof. Cass R. Sunstein,   Cass_Sunstein(AT)
 Prof. Adrian Vermeule ,   avermeule(AT)
Full report 
(2) "The Death of Innocents': A Reasonable Doubt",
New York Times Book Review, p 29, 1/23/05, Adam Liptak,
national legal correspondent for The NY Times

Dudley Sharp, Justice Matters
e-mail,  713-622-5491,
Houston, Texas
Mr. Sharp has appeared on ABC, BBC, CBS, CNN, C-SPAN, FOX, NBC, NPR, PBS , VOA and many other TV and radio networks, on such programs as Nightline, The News Hour with Jim Lehrer, The O'Reilly Factor, etc., has been quoted in newspapers throughout the world and is a published author.
A former opponent of capital punishment, he has written and granted interviews about, testified on and debated the subject of the death penalty, extensively and internationally.
Pro death penalty sites 


www(dot) (Sweden)

Permission for distribution of this document, in whole or in part,  is approved with proper attribution.

Supremacy Claus said...

As any remedy does, the death penalty likely has a dose-response curve. Too little does not work, and too much is toxic. The current obstruction by the lawyer is driven by job generation and lawyer rent seeking. Its benefits and toxicity remain unknown until tested at varying numbers.

The vast majority of dying patients would choose execution as less cruel than their clinical symptoms, agonizing, humiliating, and prolonged over months. Why should a morally reprehensible person get a death that is far kinder than that of 90% of ordinary people?

The sole cruelty of the death penalty is the date. No one has the date of death, even those with a terminal illness. That is a kindness owed to the condemned. In Japan, there is no set date. The condemned learns of the time of execution at the time of execution. That is as most of us will learn of the date of our death. No appellate claim has used this idea. That cruelty can easily be changed by statute.

Most of us are deterred from crime by the idea of the arrest. These criminals, one assumes cannot be deterred.

The main use of the death penalty should be for attrition of ultra-violent, repeat offenders, that have failed to respond to punishment, medications, and the other remedies available.

I would support the count of 1, 2, 3 convictions for violent offenses, you're dead. Some murderers I would send home. Intoxication would not be allowed as an excuse. It should be an aggravating factor, since it would show the likelihood of loss of control from drinking.

I estimate that 10,000 executions would markedly drop all crime by attrition of the ultraviolent birth cohort, both male and female.

Lastly, money is life. Every penny of value in the economy came from the labor of a person. Let's assume the value of human life in the market is $6 million. I would count 1, 2, 3, for money or destruction of property crimes exceeding that amount in damage. Take out $18 million, you're dead.

The death penalty should not be thought of as a punishment. It should be thought of as an expulsion.

dudleysharp said...

I made an error: I wrote:

The evidence for truly innocent folks sent to death row shows that about 25 people have been so wrongly convicted, or about 0.3% of those so sentenced since 1900.

Correction: Should be since 1973, not 1900.