At what point do we need to re-evaluate the death penalty in Texas?

Twas hardly meant as insult (our lack of agreement, that is). To be fair, it's not that we can't, it's that we shouldn't.

I continue to refer to the punishment as that which is deserved for the crime. How that plays out in a trial setting is (IMO) distinct.

As I mentioned previously, I think DNA evidence is a step in the right direction. But I don't think a demand for the "hows" is really applicable here, it's enought for me to state that the emphasis is misguided when we seek to compensate for a bad system, instead of resolving to improve said system. Conveniantly, this segways nicely into your last question. Why should we enact something as subjective as justice given human fallibility as a given? I'd like to think that you did not really mean that question as literally as you did, as it makes a mockery of the entire debate. Since it's a given that errors will occur, we should just throw the whole justice system out? I'd like to think you a hair more pragmatic than that, Major.

 

Just a couple of quick points.

This is not accurate. The legal punishment stems from being convicted in a court of law. A person can commit a crime and never even be charged, or a person can convicted of a crime they didn’t commit. The punishment flows directly from the conviction, not the crime. The punishment, therefore, will always be vulnerable to the flaws in the system that produces the convictions.

This is a false dichotomy. We can and should constantly try to improve the system, but that doesn’t mean that we shouldn’t also be aware of the flaws in the system, and take responsibility for them.

 

Good points, grizzled.

EDIT:

Wait a second - without a crime, no punishment would occur or be necessary. The conviction is merely a means to dispense the punishment, it is not the direct cause.

 

The legal system is called flawed and it is, in the same way that humans are flawed. The fact is, no system is perfect. In every industry, in every hospital, in every profession, in every walk of life there are mistakes made every single day. The legal system is designed to protect the innocent, and it errs heavily on the side of the criminal defendant. There are far, far more guilty people (including murderers) who are put back on the streets than there are innocent people sent to prison, much less innocent people put to death. Of those guilty people who go free, many commit the same crimes over again.

The legal system is unique in that the record is preserved for a long time and in great detail, so it is always subject to review and analysis long after the fact, in a way that no other system or job is. Which is great. But the bottom line is that the right result is nearly always reached by juries, and when they err, it's almost always on the side of acquittal. Those stories just don't get the same publicity.

Back to your first sentence, counting people who plea along with those who go to trial, punishment is based on committing a crime 99.99% of the time. So punishment flows from conviction, sure, but conviction flows from guilt. A misdemeanor court might get 3000 cases in a year, and maybe 25 go to trial. The rest plea guilty and accept punishment for their crimes.

 

While this all may be true – although I would question that 99.99% number – it doesn’t address what I feel is a central issue, and that is that mistakes are made. If we admit that mistakes are made, no matter how few, why would we impose a sentence that there is no way back from, namely death? You’re a lawyer so you may be interested in this case, which was controversial even at the time and which became one of the cases that was used to defeat the death penalty in Canada.
http://www.cbc.ca/news/background/truscott/

As a general statement, I would say that there is really nothing to be gained by executing someone, and a lot to be lost, both by the individual and by society in general, so why do it? And, as you know, most western countries have decided that it should not be done. Texas has to decide for itself, of course, but the precedent on this has been set and reinforced a number of times in other jurisdictions.

 

This isn't necessarily true in theory because, for example, you could have a government that charged its political opponents with crimes they didn't commit. In that case there would be punishment without a crime having been committed on a fairly large scale.

The point I'm making is that it's a link in the chain that you can't bypass. There are no sentences handed out that are based on a perfect understanding of the crime that occurred, if in fact a crime did occur. All sentences are handed out by a judicial system that processes information it receives about the alleged crime. The judges and jurors were not witness to the crime, and even if they were even first had knowledge of a crime can be mistaken. We do need laws and a judicial system to bring order and stability to our communities, of course, but I think we also need to remember that our systems can make mistakes, and that we need to always be aware of that and put in checks and balances as best we can to minimize the damage when it occurs.

 

I have qualms about the death penalty for a number of reasons including those that you've raised. And the % I used wasn't meant to be exact, but you can get the point from my court numbers that the number of cases that end up with pleas of guilty vs. going to trial.

Let me counter your statement in the 2nd paragraph that there is nothing to be gained. Why do you believe that our ability to incarcerate for life is foolproof? It's subject to flaws, just like anything else.

We had a case recently where a guy was sentenced to death in our county. He killed a clerk at a Whataburger, slashed the guy's throat, and took $1.25. He robbed others previously that night, held the knife to their throats, but didn't kill them. He then ran, evaded the entire police department and sheriff's department, swimming a channel at one point to evade capture. He eventually ended up in Mexico, which refuses to extradite for capital cases, and had to be lured back across the border by the feds in a sting operation in order to be captured and stand trial (they'd set up a bogus drug deal involving kilos of cocaine, I believe). We have tons and tons of evidence on this guy, including the weapon, DNA, prints at the scene, eye witnesses, co-defendants (2 girls who were with him), etc.

We go to trial, and are picking a jury, and the capital trial jury selection process takes weeks to go through. He sits shackled at the same spot every day, 9 to 5, except for breaks. The leg shackles are connected to a bolt, attached to the floor. We find out halfway through the process (I think he bragged to a family member or fellow inmate) that he's been working, every day, using his feet, to unscrew the bolt from the floor. Somehow, he's gotten it almost completely loose. In the courtroom, with people all around him all the time.

That guy, if he's not killed, will try every day of his life to break out. He's a danger to everyone if he ever manages to do so. If you could assure me that there's no chance of him doing so, that's great. But I don't think you can do that. No system, including the prison system, is perfect.

 

That is a logical fallacy as the punishment is only determined by the trial, since there are many crimes that go unpunished. For this discussion though that totally ignores wronful convictions. Punishment, interms of the justice system, is always caused by the trial whether it is warranted or not.

I see Grizzled has already addressed many of those points.

 

Life without parole though fulfills that same purpose. If you are goign to argue the possibility of escape unless we start executing people immediately at sentencing there still is a risk of someone escaping death row.

That seems like a rather fatalistic view. What if you were wrongfully incarcerated? Would you be so willing to just accept death even though you knew you weren't guilty or would you rather hang onto the hope that at some point you might be exonerated?

Howabout a slightly different example. What if you were paralyzed like Christopher Reeves was in an accident. Would you say that since you are paralyzed and you pretty much can't do most of what you did before that you are better off dead or would you hold out for hope of a cure even though something like that might be decades away and still be a remote possibility?

The problem with that is that the death penalty is limited in its application and there are many heinous crimes that the death penalty isn't applied to. We aren't seeing a massive outbreaks of rapes because that isn't a capital offense or massive outbreaks of vigilantism towards rapists. Also if what you say is true then we should see much more crime and vigilantism in states and countries that don't have the death penalty. Yes many other factors affect crime but you are making an argument based on human nature and while there are many differences between Minnesota and Texas human nature is largely the same.

 

True escapes happen but is our system so flawed that we need to execute people because of the fear of escape? The problem I have with that is that given that even under Texas it still often takes years, sometimes decades, to execute someone so the risk of escape still exist there. As I said to another poster unless we carry the execution immediately upon sentencing there will always be a risks of escape. If we can trust that we can hold someone for for 15 years as many of those sentenced to death are held then it doesn't seem like that much of a stretch we can hold them indefinately.

 

Like rhad, I also support proportionate punishment. Prevention is one argument but not the only one. It is just one of the additional extra oomph that makes it even more attractive to me.

Hardly. Let me remind you that the death penalty is not handed out just like that. There is appeal after appeal process. So assuming I'm not guilty but failed in court and then appeal after appeal, I certainly wouldn't have much hope I get in terms of exoneration.

So fatalistic perhaps, but warranted given the circumstances.

Why Christopher Reeves? Why not Joe the factory worker? A famous actor would receive the best medical care money can buy, the money to buy it, still some form of luxury which money can buy, not to mention the outpouring of support from fans, not in the least whipped up by a good PR person.

Joe the factory worker would get a medical bill, leading directly to a lot less money, not nearly as much entitlements and no sympathy except from family and friends, to whom he'll feel himself a constant burden.

And nobody is gonna care about Joe if/when he dies either, except the insurance company.

There isn't difference in human nature between Minnesota and Texas, but there is in population density, which affects the probability of crimes. There is also political beliefs and legal regulations. For example, Texas is one of the most forgiving gun bearing states in the country, not to mention one with much looser self-defense definitions. New York for example, requires a much stringent retreating rule when threatened before lethal force may be applied.

Socioeconomic conditions is also different. Washington DC has very different conditions than Little Rock.

None of those factors have anything to do with human nature but all of them affect the level of crime.

 

Oh, I don’t mean to suggest that it’s foolproof. I don’t think anything that human beings do is foolproof. I just think that it is a better, more just, sentence.

Well, you’re a lawyer so you know what I’m going to say about the bolded sentence. I don’t deny that there are some bad, bad, people out there, but even some of the worst can turn their lives around, so you can never say never. That’s not to say that I think some of these people should ever get out of jail, but, and I guess this is a separate issue that we haven’t directly addressed yet, I think that some people can turn their lives around in jail and be positive influences as they live out their lives in jail. (See David Berkowitz http://en.wikipedia.org/wiki/Son_of_sam#Berkowitz.27s_life_in_prison ). Also note that some people who appear to be bad actors can be not guilty of the charge they’re facing. I think this is how a lot of mistakes are made, in fact. When a guy who appears to be a bad guy is charged with a serious crime there is a tendency to assume he did it. This was the case in another famous Canadian case involving David Milgaard. He was punk kid, a 16 year old dropout who used drugs and was involved in petty theft. He and a couple of friends decided to drive to Vancouver from Winnipeg stealing things along the way for money to get them there. While they were in Saskatoon en route to Vancouver, however, a 20 year old nursing assistant named Gail Miller was brutally raped and murdered. Links to a couple of brief summaries of the case are below, but the short of it is that Milgaard was charged and convicted of the murder, and he spent over 20 years in jail for it, but he didn’t do it. During the trial his own friends testified against him, and he was accused of being involved in organized crime and of plotting to kill witnesses, but none of that turned out to be true.
http://en.wikipedia.org/wiki/David_Milgaard
http://www.cbc.ca/news/background/milgaard/

I guess the bottom line is that we can never be 100% confident that we’ve got it right. This is not to say that we should feel bad or guilty about having laws and convicting people of crimes, I should add. These things are necessary in order to have an ordered and stable society. Things would be much, much, worse if we didn’t have laws, courts, lawyers etc., but I think we also need to be constantly aware that our system is not perfect, and we need to be constantly improving our systems, and I think we need to not put ourselves in a situation where we’re passing final judgement on someone, because we can never know with 100% certainly that a mistake hasn’t been made.

There was a famous case in the US a number of years ago that I’m sure you’ll be familiar with which involved a man who was convicted of rape. As it turned out, the victim was indeed raped, and she said she saw her attacker’s face, and she said that the accused was her attacker, but when DNA analysis was done years later it proved that he was not the guy. If you can’t rely on that kind of eyewitness testimony to be 100% accurate, then what can you rely on to be 100% accurate? The answer is that you can’t rely on anything to be 100% accurate, but that doesn’t mean that we shouldn’t make and enforce laws. We should and need to have laws and to prosecute people, but we need to be diligent about getting it right to the very best of our ability, and we further need to understand that even when we do this we’re still going to get it wrong sometimes. And because of that I think we need to remember that we don’t need to judge someone personally to convict them, and indeed I would say that we should never judge a defendant as a person. We need to say to someone who has been convicted of a crime, “We believe that you’ve done this, and we’ve done our best to give you a fair trial, but ultimately whether you did it or not is between you and God”, and not something like, “you’re evil and you’re going to hell!” Do you see the distinction I’m making? And if you're not judging someone I don't think you can kill them. I think you can lock them up indefinitely, unless they are later proved innocent, but I don't think you can justify killing them.

 

I agree with you, nothing is 100% accurate. But we're getting better. You and others cite all the misidentification cases, where DNA evidence exonerates the defendant. I've heard speakers, including the new DA in Dallas County, talking about the work that's being done in that arena now. There's something called the "Actual Innocence Project" that's doing great work now to overturn wrongful convictions with new science, like DNA, unavailable at the time of the trials. But what about now? In cases where we have DNA evidence? Nothing is 100%, but a conviction that includes DNA evidence to corroborate the fingerprints and confessions and eye-witnesses, etc. seems to come pretty darn close to it. I don't think you'll see today's convictions with DNA evidence overturned with some new science, 20 or 30 years down the line.

I can and do judge people. I would say that the vast majority of my criminal defendants are good people, and I prosecute only the highest degree felonies. Robberies, burglaries, arsons, murders. Most thieves (and robbers, burglars, etc.) steal to support a drug habit, some do it because they are just young and stupid. Domestic abusers often have a very redeeming side when they're not drunk or coked up or otherwise just angry. Some people just have impulse control problems or other MHMR issues.

But, in my experience, there is evil out there. And it manifests in some people, a very tiny portion of the population. The Jeffrey Dahmers, the Ted Bundys, the Charles Mansons. You can call those sorts of people insane or diagnose it as psychopathy or sociopathy ... the bottom line is that there are people out there who don't conform to any norms of social behavior and commit senseless crimes just because they can. I tried a rape case where the defendant broke into an elderly woman's house and tied her up. He then beat her, then raped her, then sodomized her, then urinated on her and in her mouth. They found a good quantity of said urine in her lungs. He then left her, tied spread eagle to her bed, bloody and bruised and naked, until her neighbors finally found her, thank God still alive, 2 days later. She'd suffered a heart attack during the incident. We convicted him, in part, because the woman scratched him while he was raping her, thinking that when they found her body, at least they could convict the guy with the evidence under her fingernails. He told the police during his (videotaped) confession that the devil told him to do it. That guy was evil, not just his actions but who he was. And when I judge him, when I say he's evil, it's because I believe that to be true in my heart.

 

I think DNA evidence is good, and that it has cut down the rate of wrongful conviction, but I suspect that we will find in time that it may not be foolproof either. If an enterprising criminal could obtain a sample of someone else’s DNA – perhaps hair, skin, or semen – and then plant it at a crime scene, that alone could be enough to convict an innocent party. That would be an elaborate, almost mob like, frame up, but you can be sure that someone will try it somewhere down the road. And there will likely be other unforeseen issues that crop up, because nothing is foolproof. Again, I think DNA evidence is good, and better than what we had before, and that it will cut down the number of mistakes that are made, but it won’t eliminate them, and therefore we can still never be 100% sure that a guilty person is guilty. We should still convict peple and send them to jail, and do our best to get it right, but we should always be aware that there is a slim chance that the individual did not commit the crime. And imo that continues to be one of the key reasons why we should never put someone to death.

I think it's right to discern for your own purposes whether a person is not someone you or your family should be associating with, for example. But from the standpoint of the courts, I don't think it's their job to declare someone bad or good, only guilty of the crime or innocent.

We’ve got some of these too, some of the worst, in fact. Clifford Olson, Paul Bernardo, and Robert Pickton have all done unspeakably horrible things. None of these people will ever leave prison, and that’s as it should be, but I still can’t justify taking their lives. I do understand the revulsion and the outrage that would lead people to want them dead, but I don’t think that going that route is good for us as a society, or even the victims close to the crime. I don’t imagine any of these three will ever turn around, as all of them seem to be extreme sociopathic personalities, but if someone like David Berkowitz can turn his life around in jail, and express sorrow for what he did and be forgiven by one of the victim’s parents, then I think that is a possibility for a lot of people, and, imo, I think we should give them that chance, both the victims and the guilty party.