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Posted by on Nov 28, 2012 in Law, Politics, Society | 38 comments

Death Penalty Update

While most of the country watched Barack Obama being re-elected on election night, and perhaps noticed what happened in the Senate and to a lesser extent in the House, few outside California honed in on Proposition 34. California’s controversial referendum would have repealed capital punishment in our most populous state. It would also have commuted the sentences of more than 700 California death row inmates to life without the possibility of parole.

The measure fell short of passage, but not by much as those of us who follow death penalty trends can tell you. A relatively scant 53% voted to retain capital punishment in California. A week prior to election day, it looked like Proposition 34 might even pass. It was shown leading in the polls but with less than 50% support. As routinely happens with referenda, the undecideds broke to the no column and the measure went down to narrow defeat. Put into context, as recently as 1994, 80% of Americans surveyed on the subject by Gallup favored the death penalty. More on polls in a moment.

The California initiative follows on the heels of other states either doing away with the death penalty or placing a moratorium on executions pending further study. Connecticut is the most recent, and 17th, state to abolish capital punishment. Oregon is the latest to place a moratorium on executions. And Maryland’s Commission on Capital Punishment drew the following conclusion:

“For all of these reasons—to eliminate racial and jurisdictional bias, to reduce unnecessary costs, to lessen the misery that capital cases force victims of family members to endure, to eliminate the risk that an innocent person can be convicted—the Commission strongly recommends that capital punishment be abolished in Maryland.”

The Commission’s rationale can be found here .

In addition to what is happening in various states both Gallup and CNN have been polling death penalty attitudes for years, with some interesting recent, 2011 and 2012, results. Gallup finds that 61% of people nationally support capital punishment. While that’s a significant majority, it’s the lowest in 40 years. Those who oppose capital punishment have more than doubled, from 16% to 35%, since 1994. For 11 years, Gallup has also tracked the morally acceptable/morally unacceptable numbers. The May 2012 numbers showed the lowest number who found it morally acceptable, 58%, and the highest percentage who found it morally unacceptable, 34%, since the question was first surveyed.

CNN’s polling results may be even more telling. For the first time two events have occurred. First, those who prefer life without parole now outnumber those who prefer the death penalty. Second, the number who prefer life without parole has, for the first time, exceeded 50%. The numbers, though still close, are 50% life without parole, 48% death penalty. Not surprisingly, the most supportive group for capital punishment is older white men. Women, minorities and younger voters all prefer life without parole to capital punishment by significant percentages.

Proposition 34 did not succeed in this election cycle. It and other efforts to repeal capital punishment can likely take some comfort in the educational impact of fighting the referendum battle along with the efforts in other states to abolish state sponsored executions. If you’d like to see the specific poll results referred to above, they are here for Gallup and here for CNN .

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Copyright 2012 The Moderate Voice
  • ShannonLeee

    and the country continues to become more civilized.

  • slamfu

    I still think we need to keep the death penalty around for the most dangerous criminals. The ones that can kill from solitary, crime bosses. Our prison system is a mess, but there has to be a punishment higher than confinement for those so ruthless a life sentence doesn’t mean anything to them anymore.

  • sheknows

    Being a female I guess I don’t fit into the group that wants to repeal capital punishment. I suppose I cannot see the point of keeping a murderer alive, housed, clothed, fed and allowed to visit friends and family when they have taken the life or lives of others. Why our tax dollars are going to that is beyond me. Some of these crimes are horrendous and haenous. Family members of these victims don’t have the luxury of seeing them anymore so why should the murderer have that? Parents of children, husbands,wives, siblings and all loved ones must face their life alone on this planet because of the violent act of another. It’s not like these people are going to be rehabilitated and returned to live a productive life as a member of society. Most of them are hardened criminals with histories of violence and trouble a mile long. I certainly don’t want my tax dollars to go to keeping them locked up for the rest of their lives. If someone can explain to me why we should keep someone like the “batman” killer alive or the couple who superglued the nose and mouth of their victim shut while strangling her will serve the loftier aspects of a civilized society in general, I will be happy to hear it.

  • sheknows,

    Well, there are many reasons to oppose the death penalty most of which have little to do with anecdotal cases like the two you mention…or slamfu’s concerns about crime bosses. This is not to say that either of your opinions is invalid; my opinion is simply otherwise.

    As many at TMV know, I spent 13 years as a capital defense attorney, defending more than 40 individuals accused of murder. Given that background I certainly have opinions on the subject based both on research and personal experience.

    Because I don’t (virtually) know you well enough, I’m not sure where to begin such a discussion. Perhaps I will, one day soon, do a piece on reasons why I oppose the death penalty. Meantime, if you have specific questions, I’ll respond the extent I am able.

  • sheknows

    Thank you Elijah. As a defense attorney You are well aware of the different circumstances surrounding each conviction. I am sure there are many on death row who acted impulsively, even stupidly and tragically caused the life of another. Perhaps than this is a question of degree.
    I do not think this is a one size fits all decision any state can make. Certainly there are those criminals as the two I mentioned who have no hope and no saving graces to justify their continued existence. Lifetime sessions of psychoanalysis are pointless. Doesn’t a jury or judge decide what particuliars in a given crime are worthy of a death sentence as opposed to life?

  • sheknows,

    There are many variables, and may include judge and jury. Let me give you a favorite of mine – absolutely true. Where I practiced there were two counties separated by a river maybe 50 feet across. In one county the District Attorney was a strong death penalty advocate; in the other the District Attorney opposed the death penalty. If you committed a murder on the bank of the river in one county, you would be prosecuted for the death penalty; if the same murder were committed on the opposite bank, the maximum penalty that would be sought would be life without parole.

    Prosecutorial discretion is one factor that results in capital punishment being inconsistently applied…having nothing to do with the severity of the murder. In some cases it isn’t even a philosophical issue. For some prosecutor’s offices the death penalty is simply too expensive, and too resource intensive, for their limited budgets and personnel. They may drop the death penalty because of resource restrictions where other prosecutors will pursue the death penalty full tilt at every opportunity.

    Inconsistency of application is one of the objections mentioned in the Maryland Commission’s report as well. The inconsistencies are even greater if the comparison is state to state, rather than county to county. Texas for example executes huge numbers of people even compared to other states with the death penalty. And, of course, 17 states don’t have the death penalty.

  • zephyr

    Thanks Elijah for posting on this subject. It IS odd how undecideds tend to break to the no column. We saw this here in MI with several proposals, some of which really should have passed. While I have concerns about capital punishment in the context of things like the innocence project and also have huge problems with the prison industrial complex in general, my sentiments are similar to the ones expressed by sheknows.

  • sheknows

    I am not sure I understand. Why would the death penalty be cost prohibitive? Is’t it less expensive than providing food, housing, clothing, medical care for an individual for say 20-50 years?
    And yes, I do now get the inconsistency aspect. It almost sounds like these are arbitrary decisions not based on any set of criteria.

  • slamfu

    I’m actually pretty aware of some of the issues you’ve mentioned, and I totally agree. The system is up to people, and this can result in an uneven and subjective level of prosecution. I’d be for death penalty not being an option, but only as a punishment received for crimes committed once you are in jail. I don’t care if a serial killer is executed or given life, as long as he is no longer a threat to society. What I do care about is an Aryan Brotherhood leader who was able to run drugs through 3 prison systems and was implicated in the murder of 44 people, including a federal judge and prosectuor, from solitary. There are a shocking number of gang bosses that carry on business as usual from prison, and they are even more ruthless than the guys on the streets as they have nothing to lose. For those guys whose reach exceeds their grasp despite being behind bars, I would keep the death penalty reserved.

  • sheknows

    Hi Slam. Well I have to say that I would care if a serial killer were given life or lights out. Two reason:1) When your loved one is in the ground and you will never see them again in this life, how comforting it must be to know the murderer is today enjoying a walk in the yard, a cigarette or a few laughs with his buds, or just maybe he had a girlfriend come visit! and 2) I don’t want to pay a single red cent to keep him breathing. I don’t think a crime from prison is any more worthy of death than the crime before prison.

  • slamfu

    Well prison is a pretty awful place. Not even counting the daily physical risks of rape and beatings and such, those cells are SMALL. The ones you see on TV shows are palaces in comparison. Being locked up, told when to eat, when to bath, what to do all the time is a horrible situation. Having your freedom taken and knowing that’s what you’ve got to look forward to forever is enough to drive you mad. And in the end they are going to die anyways. Besides, its not Shawshank in there. Sure I’m sure the prisoner will occasionally have laugh or a not totally miserable moment, until they remember they still have no freedom and will never enjoy a real life again. I’d prefer an execution.

  • ShannonLeee

    Our legal system cannot commit murder, which is what executing an innocent person would be. Until someone can create a perfect system where innocent people are never imprisoned for crimes they did not commit…we should never consider a punishment that cannot be repealed, like death. You can believe in an eye for an eye, but whose eye do we take when an innocent person is killed by the state?

    I understand the theory SK, but in practice, the death penalty is simply not moral…unless you accept being that one innocent person killed by the legal system.

  • Sorry to have missed some of the discussion…lost online access briefly.

    To sheknows’ question about the death penalty being cost prohibitive. Here are the reasons:
    1. Cost of investigation and trial. The US Supreme Court has said that “death is different” and rights and protections should be strictly adhered to. A death case takes two to six times as long to try and prepare for trial as a non-death case. The cost is even more than double to six times a non-death case because of the employment of additional investigators, experts, co-counsel, and mitigation professionals…each matched on the prosecution side, jacking up prosecution costs as well as defense costs.
    2. State appeals costs. All death verdicts are subject to automatic appeal, and sometimes two appeals at the state level.
    3. Federal appeal cost.
    4. State and federal habeas corpus proceedings following the appeal processes.
    5. Housing on death row. This is essentially one person to a cell, one prisoner/one guard for one hour of shower and controlled walk per day. One of the issues in Prop 34 was how much more it cost to keep someone on death row than in general population.
    6. Cost of execution and maintaining a death chamber that meets constitutional standards as set and reviewed by various courts.

    Overall, it has been estimated that the combined cost of a death case, carried all the way to execution, exceeds double the combined cost for lifetime incarceration.

    Hope that helps.

  • In many cases the prosecutor will do a plea bargain for life in prison to save on the cost of the trial and appeals. And let’s be honest here – life in prison is hell on earth.

  • sheknows

    Wow!! Thanks Elijah. So I take it in all that time and with all that expense,and with all the extra care taken to be sure all details are correct, it would be rather rare for an ” innocent” person to be put on death row. By the same token, alot of vicious killers may be taking up space and air because it’s cheaper to keep them alive.
    Well, I appreciate your feedback Elijah, and don’t mean to sound contentious, but I look forward to reading your article on why you oppose the death pernalty.

  • sheknows,

    I do not regard your comments as contentious. You have an opinion, strongly held and founded in your moral conscience. While I disagree, I find no personal ill will in disagreeing.

    As for mistakes being “rare”, I don’t think I’d agree. Even with all the safeguards, there have been some fairly high profile cases that have raised serious questions. I’ve written on some of these, and will perhaps include links when I do the other piece. Understand that different states have different standards for death penalty defense counsel and what constitutes an “adequate defense”. Alabama, for example, required no special qualifications for trial counsel and, on appeal did not even provide an attorney to handle the appeal for the defendant. [that may be old news as Alabama’s system was under attack about a year ago for those reasons, and I confess to not knowing what came of it].

    Not meaning to speak for him, but I think EEllis would agree with you that mistakes are rare. He and I have faced off on this issue many times [he is adamant and well informed on his side of the issue], and I am surprised that he has not appeared on this thread…yet.

  • sheknows

    Well, I certainly am not at all well informed on the varying legalities, and various state requirements. I admit, I am taking a purely emotional stance.
    I honestly do look forward to reading your article for that very reason. I can see where miscarriages of justice could take place ( hopefully not solely due to financial concerns) and I am also certain that some states are still in the dark ages. It is unlikely that I will see the death penalty as wrong based on any philosophical premise, but I am interested in your knowledge and may view the argument differently from a practical viewpoint.

  • dduck

    ES, thanks for the great information. I can see to both sides of the issue, but would heavily lean towards an expeditious DP for the most egregious crimes, although setting uniform standards and procedures could only be done on the federal level.
    I would also favor some kind of a voluntary DP with compensation to either victim’s family and/or the volunteer’s family. but again the uniformity problem. (I think some prisoners would prefer DP to life, is that a reasonable assumption?)

  • Duck,

    Responding to your,”I think some prisoners would prefer DP to life, is that a reasonable assumption?”.

    You are correct. There is even a group of these individuals called “volunteers.” They insist on giving up their rights to further appeals and any additional legal maneuvering and insist that the death penalty be carried out. The callous angle would be to say that these “volunteers” reduce the expense of capital punishment, but the more valid point is yours: that they prefer death to life without parole or even uncertain life on death row.

  • ordinarysparrow

    Thanks Tidbits… read all of this with the comments a couple of times… It is such a big subject…. i am reduced to silence…will only state after spending a few years working with mitigation team for capital murder cases i am 100% + against capital punishment…I too would love to hear more on this topic, we need to know what goes on in these cases there needs to be education from ones like you that know the system up close… Such as who are the damaged individuals that commits capital murder…. to the many layers inside both prosecution and the defense and how these can become skewed by politics, race, money, and experts willing to sell opinions to one side or the other…

    And i agree with Ron… Prison without any chance of parole is not a cake walk… they are doing time in hell…

  • zephyr

    I don’t claim to be an expert on the subject at large but I probably have a more personal connection with a serial killing than most of you so my experience is more on the visceral side.

    It’s a shame trials and appeals process is so expensive because some of these “people” should be removed from society permanently. Afaik there’s only one sure way to accomplish that.

  • zeph,

    Thank you for bringing your story to our attention. While I don’t know where you personally fit in, the events are certainly moving.

    You talk about how some of these people “should be removed from society permanently.” I agree, and life without the possibility of parole can accomplish that without resort to execution…IMHO.

    As a legal aside: it is obvious to a lawyer in the field why the plea deal was struck. Drug assisted confessions, like the one described in the article, will not support a broader conviction than what they had this guy on without such drug assisted confessions. There are similar problems with hypnosis aided confessions and drug or hypnosis assisted memory enhancement. While you may believe there was an initial injustice in this case, please keep in mind the greater good that comes from having a Constitution that protects the rights of all, including you and me…even if, from time to time, it is used to protect the rights of the ugly souls among us.

  • slamfu

    For the love of god Dduck, please don’t abbreviate death penalty that way. I almost choked on my dinner reading your posts and laughing as my brain inserted its other meaning into your sentences.

  • slamfu

    “Inserted” in the previous post being an unfortunate pun…

  • dduck

    Don’t read my posts while eating it will prevent choking and Accidental Death, AD.

  • Ok – Ok. Don’t make me use my totalitarian, and ego satisfying, power to edit the thread. Get yer thoughts out of the gutter and get back to the topic.

    Thanks in advance for your intensely focused attention to the commenting rules.

  • Dr. J

    I voted for proposition 34, to end the death penalty, on the practical grounds that it would save the state $100 million per year.

    But I find the other arguments against it quite weak. Yes, there’s a moral argument that thou shalt not kill, except in cases like war or self-defense when thou shalt. Perhaps this is simply one of the latter.

    It’s unforgiving of mistakes, in the sense that you can’t un-execute someone. But neither can you undo the effects of 10 years in prison, so this isn’t much of an argument either way.

    That it is applied inconsistently is simply not an argument against it. Speeding tickets are applied inconsistently too, as are Caesarian sections, marriage proposals, and TMV commenting policy…but that doesn’t mean they shouldn’t be applied at all. And since one can correct an inequality by adjusting either side, it’s as strong an argument for more aggressively executing one group as it is for sparing another.

    Finally, although the death penalty is unsatisfactory in many ways, so is locking people up in prison. That obviously can’t undo whatever crime they committed, it doesn’t completely prevent them causing further trouble, it doesn’t rehabilitate and in fact may just perpetuate criminal behavior, it doesn’t bring closure to victims, and it’s expensive. It’s hard to come out strongly against the death penalty when the alternative is little if any better.

  • ordinarysparrow

    Dr. J. because we are all fallible there are so many places it can go wrong… innocent people do get put to death…..So much of the research coming out these days points to brain abnormalities that renders them incapable of impulse control. Yes, let society be protected from them but to kill the deranged is too deranged…

    But the biggest issue for me is the fallibility of being human for us as much as the one that murder…

    Example of just one of the things that can go wrong:

    ” Texas Representative Harold Dutton recently filed a bill that would prevent prosecutors in death penalty cases from using testimony from informants or from alleged accomplices of the defendant if the testimony was obtained in exchange for leniency, immunity or other special provisions. If passed, the bill would make Texas among the first states to ban such testimony. Alexandra Natapoff, a professor at Loyola of Los Angeles Law School, said, “The use of criminal informants is a massive source of error in our most serious cases…. Criminal informants have strong incentives to lie and very few disincentives to lie, because criminal informants are almost never punished.” Anthony Graves, the most recent death row inmate to be exonerated in Texas, was condemned primarily because of the testimony of an alleged accomplice, who later admitted to committing the crime alone. “

  • zephyr

    Just a brief aside: The topic of capital punishement is almost in a category of it’s own, but it isn’t disconnected from the prison industrial complex in general. We in this country have a very, very serious problem that is largely being ignored.

  • Dr. J

    Sparrow, the fallibility argument is compelling only if there’s an alternative punishment we can reverse if we discover a mistake. I’m sure we do execute some innocent people, and I’m sure we lock some innocent people up for years and years. Is the latter dramatically better? We could let them go free if we discover mistakes, but the damage has already been done.

    Your point about brain abnormalities and impulse control enters some very interesting territory. If people are victims of their neurology, rather than free agents who choose their actions, you can argue that any punishment is unjust. We frown on punishing victims, so why have prisons at all?

  • zusa1

    Dr. J, “I’m sure we lock some innocent people up for years and years. Is the latter dramatically better?We could let them go free if we discover mistakes, but the damage has already been done.”

    Would a guilty person sentenced to 20 years prefer the death penalty? Why would an innocent person?

  • Dr. J

    Zusai, I would wager both of them would prefer not to be imprisoned at all. Obviously pleasing them is not the main goal of the penal system. :^)

    To be clear, I think the fallibility argument is valid, and that if we discover we got the wrong guy, it’s probably better he’s still around and we can let him go free. I just don’t think it’s dramatically better, which is why I’m saying it’s a weak argument.

    And it gets weaker still when you figure in the extra due diligence we give capital cases. That means a higher fraction of people serving long prison sentences (but not on death row) are actually innocent, and we’re less likely to figure it out. To put a different spin on your question: if you’re innocent but nevertheless somehow convicted, would you rather face a capital sentence with guaranteed appeals, or a long prison sentence without them?

  • zusa1

    Dr. J, I thought about that too. Not only a difference in the appeals process, but I would think a higher inclination to be found guilty by a jury if they know it won’t be a death sentence.

  • ShannonLeee

    Goodness.. I would think that 10 years and then vindicated and released is considerably better than dead. Damage sure…but dead is dead. Lets not devalue death.

  • ordinarysparrow

    Dr. J. thanks for your comments… i support life without parole and do not suggest that damaged individuals should have the rights to roam freely and harm others in society…They have to be separated from society…. Impaired yet we are responsible for society safety. It puts it back on us, they cannot regulate their behavior but we must in a compassionate way.

    Zephry i am with you on prison reform.. would like to hear Tidbits on this one too… A question i have held has to do with creating prisons were the inmates do significant work with fair work standards that benefits society where they would be paid minimal wage and the lion’s share would go to a fund for the victims of their crimes. Let them send home some of their earning to their dependent children. Give them something to feel good about themselves.

    For a long time in Texas the inmates made the auto license plates…. but the program was deemed unjust…? To go to prison and engage in fair work that funded reparation would a better solution. Or am i going backwards?

  • ShannonLeee

    OS. I completely agree… put those boys and girls to work. Reparation to the victims, if possible, would be great. Just paying for some of their keep is also good.

  • zusa1

    People need something to do or they will invent something to do.

  • zephyr

    Excellent idea OS. Something worthwhile could actually be accomplished instead idle brains and devils playgrounds.

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