Dark Bilious Vapors

But how could I deny that I possess these hands and this body, and withal escape being classed with persons in a state of insanity, whose brains are so disordered and clouded by dark bilious vapors....
--Rene Descartes, Meditations on First Philosophy: Meditation I

Home » Archives » March 2005 » Ok. I'll cop a plea....

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03/04/2005: Ok. I'll cop a plea....

Been spending a few days thinking over an "accusation" by Robert Prather over at Signifying Nothing to the effect that my post on the recent Roper decision was a call to overturn the death penalty as being unconstitutional. Robert disagrees with such a call; charging that I haven't read the Constitution (actually, not true, I read it every July 4, along with the Declaration of Independence) which, after all, mentions capital punishment explicitly in (among other places) the Fifth Amendment:

No person shall be... deprived of life, liberty, or property, without due process of law....
Stupid Len, Robert seems to be saying; how can the death penalty be unconstitutional if it's mentioned in the Constitution?

Well, there is that tricky phrase, "due process of law". As the second favorite maxim of my administrative law prof in law school has it, the question of "due process of law" entails two questions that must be answered in just about every case: is "due process" required, and if we conclude that it is, then we have to proceed to the second question of "what process is due?" And the answer to the second question can vary, quite widely, based on the importance of the issue. Perhaps I'm silly, but it seems to me that the taking of human life by the state is one of the most important issues (if not the most important) that the judicial system must contemplate. Given that importance, it seems to me that "due process" in this instance requires an extremely high degree of "factual reliability" in the determination of guilt. If in cases of mere imprisonment we believe that it is better to let 100 guilty persons go free than to convict one innocent accused, in cases where we seek to take the life of the accused it seems to me that we should be even more discerning. It is better than we let thousands (at least) of guilty defendants go free than risk taking the life of one innocent accused.

And ever since I acquired firsthand experience with the criminal justice system as a criminal defense lawyer (both as a public defender and in private practice), it's been painfully obvious to me that the criminal justice system is simply too unreliable to entrust to it determinations of life and death. That personal opinion has been backed up by a number of studies (this is by no means a comprehensive list: Justice Denied, Section of Individual Rights and Responsibilities, American Bar Association, Grassroots Investigation Project, Equal Justice USA, "25 Years, 25 Cases"; for a contrary view see Death Penalty--Innocence issues which argues that "death penalty opponents have lied, extensively, regarding the numbers of innocents sentenced to death...").

So ultimately, if I'm forced to answer the question "Is the death penalty unconstitutional?", I'd answer it in the affirmative: at present, the criminal justice system is so unreliable that to execute anyone pursuant to a sentence of death from a court of competent jurisdiction is a taking of a life without due process of law. Period. And that does violate the Fifth Amendment.

And I know that death penalty proponents will conclude I'm full of shit there. Tough; I think their bloodlust is sickening. We'll just have to agree to hold each other in contempt. Doesn't bother me; I've been disliked by better people than them.


Of course, I'm also against capital punishment on strictly moral grounds, so it doesn't matter if the determination of guilt in a capital case is certain; I'm still against taking the defendant's life. But if we're to have capital punishment, there is a procedural change I'd like to see enacted (it'll never happen, of course, but what the hell, I can dream)...

What I'd like to see is a death penalty statute with the provision that in the event of the execution of an innocent person, every person involved in the prosecution of that case--the investigating and arresting police officers, the charging prosecutors, the trial prosecutors, the jurors and judge who imposed sentence, the appellate judges who affirmed the sentence, and the trial level and appeals judges who deny post-conviction relief, and the Governor/President who deny a clemency petition--would themselves be executed once the factual innocence of the defendant in that case was proved.

In other words, everyone responsible for putting a defendant to death would have to put their own lives on the line in order to do so. If all of them are that confident of their decisions, then I say, go ahead and let them take the defendant's life.

I have a feeling there'd be a lot of empty cells on Death Row under such a system.

Len on 03.04.05 @ 08:06 AM CST

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