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« From the Department of Misleading Headlines, re global warming | Main | CBS' "The Amazing Race": ugly Americans vs. abusive Americans »

December 13, 2004

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Listed below are links to weblogs that reference Does death for Scott Peterson cheapen the death penalty?:

» What Tung Said from ProfessorBainbridge.com
Prof. Yin writes of the Scott Peterson death sentence:I have to wonder whether this is an appropriate case for invoking the death penalty. [Read More]

» Cheapening the death penalty from Houston's Clear Thinkers
Univesity of Iowa Law Professor Tung Yin observes persuasively that jury's assessment of the death penalty on Scott Peterson is not in the public interest.... [Read More]

» Scott Peterson revulsion from cka3n
Professor Yin wonders why Peterson is a particularly good choice for the death penalty (link). He writes: "[W]hat makes Peterson more deserving of the death penalty than any other murderer?" I think that he is half-right. [Read More]

» Cheapening the death penalty from Houston's Clear Thinkers
University of Iowa Law Professor Tung Yin observes persuasively that jury's assessment of the death penalty on Scott Peterson is not in the public interest.... [Read More]

Comments

Chris

Tung

I'm afraid that "Scott Peterson" will become a common rejoinder to critics of the death penalty.

Proponents and opponents will argue as to degree, but the fact is that the death penalty falls unevenly on persons of color and the poor.

Scott Peterson is a white guy from the suburbs, who had the best representation that the criminal defense bar could give.

I can hear it now:

Opponent: Persons of color and people without economic means are far more likely to get the death penalty.

Proponent: "Scott Peterson!"

Addressing your argument more directly, if I could agree with the system (and the verdict), I would say that any double murder, especially one committed against particularly vulnerable victims, and considering the position of trust that Scott occupied within the family, this is a textbook case for the death penalty.

In other words, if no death penalty for a guy who murdered his pregnant wife and his son, who planned it out in advance, then for who?

Jack

I think that capital punishment is, ironically, eerily similar to gun control in it's political dynamic and actual utility to the criminal justice system. That is, proponents of capital punishment (who tend to be on the right) and gun control (who tend to be on the left) have an almost religious belief that their pet program (more executions or more regulation, as the case may be) will have a salutory impact on the crime rate. In my humble opinion, both capital punishment and gun control grossly over-promise and under-deliver. Neither will do much to reduce crime, and both are enormous distractions that prevent us from talking about policies that would actually deter crime or interdict it.

There are, in my opinion, three cases where capital punishment is called for. First, acts of terrorism, which I would describe as intentional mass killings (as opposed to serial killings). Second, the killing of law enforcement officers, including prison guards (because we need to have a fate worse than life in jail to deter criminals with nothing to lose from killing our officers). Three, hostage crimes (so that the hostage-takers have a reason to keep the victim alive).

Scott Peterson is none of these, so I think that executing him is a big waste of time.

Buster

I beg to differ - capital punishment does stop further crime by stopping the murderer from ever killing another person. Someone serving life in prison always has the opportunity to kill another inmate or - God forbid - a corrections officer. The same goes for someone on death row - what? Are we going to kill them twice? The problem of the deterrence factor - which is seldom discussed - is that it takes so damnable long to carry out the punishment.

Thomas Jefferson - whom a lot of Democrats seem to be re-discovering these days - advocated a 48-hour gap between conviction and execution for murderers, and 72 hours if the last day fell on Sunday. Now that is an incentive to not be around any sort of violence what-so-ever. It occurs to me the "drag" on the system robbing the deterrence factor from the system are lawyers themselves.

In the day and age of DNA testing, I fail to see how guilt or innocence cannot be proven within a week. If your DNA is found at the scene of a murder without a real good reason (read: beyond reasonable doubt), then you probably did the deed. We legal lay-people have been hoodwinked into believing that ALL doubt must be overcome to convict. Last I checked, it was REASONABLE doubt. Walks like a duck, and all that.

Evidently, the Peterson jury didn't find any reasonable doubt Scott did the deed. I mean, rogue biker gangs aside and all. Yes, there should be a review of the proceedings to make sure justice was, in fact, served and nobody comitted a gross error. Should that review take one or two decades? No. One week should suffice in the day and age of the microchip. But then again, lawyers couldn't rack up huge amounts of billable hours that way, could they?

Tung Yin

Chris: Proponents and opponents will argue as to degree, but the fact is that the death penalty falls unevenly on persons of color and the poor.

IIRC, the study by my colleague David Baldus showed that the racial impact of the death penalty is reflected in the race of the victim, not the race of the killer. Killers of whites are more likely to get the death penalty than killers of blacks (suggesting, perhaps, that juries value the lives of black victims less). Peterson, however, does not fall into this category.

Jack: In my humble opinion, both capital punishment and gun control grossly over-promise and under-deliver.

Excellent point, and I agree completely.

Buster: In the day and age of DNA testing, I fail to see how guilt or innocence cannot be proven within a week.

I think this statement puts too much faith on DNA testing. Consider the possibilities:

(1) No DNA is found on the scene (as was the case with Peterson).

(2) The case is not about whether the defendant did the killing, but whether the killing was first degree, second degree, or manslaughter. DNA would have no impact.

(3) The case is about whether the killing was in self-defense.

(4) The case is about whether the defendant was sane at the time of the killing.

Buster

Tung,

I admit this is a stretch as far as reliable sources goes, but the MSM reported DNA was found, and as a matter of course in the investigation (again, reported by the MSM) DNA was taken from Mr. Peterson. We will not know for certain what the jury knows until all the documentation is released to the public in due course. Still, they didn't find reasonable doubt he did it, DNA or no DNA.

POINT #2 - Splitting the hairs fine there... In all degrees the victim is still dead, are they not? Gussy up murder with any name you want, the victim is still pushing up flowers. Silly me, I was raised with the naive belief the criminal justice system was about balancing the scales, or coming as close to that ideal as was humanly possible. Of what real difference is it if I push my victim out the window, blow their head off, or crash into them while drunk? Dead is dead, no matter to what degree you want to paint motive or intent. In Archie Bunker-speak :

Would ya feel better, little girl, if they was to fall out of windows?

POINT #3 - Self-defense cases are loaded with doubts, are they not? If there are only two people involved - one living and one dead - is there not a boatload of doubt as to who did what to begin with? Shouldn't forensic science be able to establish probabilites of who did what with a high degree of certainty in a short amount of time? No one - least of all me - is advocating the abandonment of common sense, but if science and technology can show us probabilities, shouldn't we take over from there and judge if the doubts are reasonable or not in under 20 years?

POINT #4 - Most "real" people in the "real" world carry the belief that you have to insane to murder in the first place. Only lawyers are interested in the degree, whereas the rest of us take it as a given. Dennis Miller spoke to this "insanity" defense with the glib remark -

"Remain insane or we will bury you on the plain"

Instead of arguing to what degree insanity exists as defense, it should be a given in every murder trial. I would love to hear if anyone can think of more faulty judgment than robbing someone of their very life. What else could insanity be called than the utter lack of sound decision-making ability?

One of the problems with the "system" is the defense looking for the least-intelligent, most gullible people they can put on a jury to give them the maximum possible chance of creating reasonable doubt, even where none may exist. BT, DT except the trial I was selected as juror for, there was an abundance of rational, intelligent people and the defense didn't have the ability to chuck us ALL overboard.

I have noticed rational, intelligent people cut through the smoke in a hurry. Trials that are over quickly do not pay mortgages and put food on the table for an attorney. You can either prove or disprove your whereabouts very quickly in today's GPS society. DNA tests are also rapidly completed. In short, far from drawing the system out, technology should let us be able to prove in a short timeframe if you had capacity to commit the crime. The only doubt there should be is if the equipment was functioning correctly during the time in question, and most self-tests complete in seconds.

So what causes a ten-to-twenty year gap in carrying out an execution after conviction? I still maintain self-interest from lawyers themselves, because I can discover no technological reason in the computer age this must be so.

Fedster

Buster, quite a few things you say are opinion, and thus I can't refute them. But I will respond to a few points, since you make several factual errors.

So what causes a ten-to-twenty year gap in carrying out an execution after conviction? I still maintain self-interest from lawyers themselves.

Where's the self-interest? I've worked on a couple of death penalty cases pro bono with an attorney who has no trouble finding clients willing to pay $350 an hour. He does it pro bono. Where's the self-interest? Trust me - keeping someone off death row is thankless work, since the client is too "out of it" to know what's going on.

I admit that lawyers (like EVERYONE ELSE) generally seek to further their own economic self-interest. But in death cases, attorneys work against their own self-interest to help save a pretty horrible person from being killed.

Splitting the hairs fine there... In all degrees the victim is still dead, are they not?

So someone who reaches down to pick up something he dropped in his car while driving and runs over a small child deserves the same punishment as someone who repeatedly rapes and then murders a mother of 3?

One of the problems with the "system" is the defense looking for the least-intelligent, most gullible people they can put on a jury to give them the maximum possible chance of creating reasonable doubt, even where none may exist.

That's an overstatement. In many cases the trial lawyer wants the most intelligent jury he or she can empanel. The idea that lawyers wants a "stupid jury" is a myth. "Stupid" people don't slit hairs, spot nuance, or understand that being "pretty sure he did something" is proof beyond a reasonable doubt. "Stupid" people are all all too willing to convict based on the "where there is smoke, there is fire" justification.

Trials that are over quickly do not pay mortgages and put food on the table for an attorney.

Not true. An attorney usually gets paid a large sum up front, and despite an agreement that payments will continue, that first payment is usually the last payment. Thus, going through a long trial is hard on the business.

Tung Yin

One of the problems with the "system" is the defense looking for the least-intelligent, most gullible people they can put on a jury to give them the maximum possible chance of creating reasonable doubt, even where none may exist. BT, DT except the trial I was selected as juror for, there was an abundance of rational, intelligent people and the defense didn't have the ability to chuck us ALL overboard.

The one time that I was called to jury duty, I ended up in the jury venire (that is, the jury pool from which the actual jury is selected). I was voir dired, and it was the prosecutor, not the defense attorney, who exercised a peremptory challenge on me. (And he was an Asian dude, too!)

I'll admit, the fact that I said that half my practice was white collar criminal defense probably had something to do with it. (It was a street murder case.) Also, the fact that I had worked on two death penalty appeals pro bono (though those were as a matter of intellectual curiosity, not a political or ideological statement).

Fedster

But what makes Peterson more deserving of the death penalty than any other murderer? *** It's just that the victim happened to be photogenic and to have a family that spoke passionately about its loss.

To the extent that the death penaly can ever be justified, I think we have to look beyond the characteristics of the D and his acts. Lacy and Connor were innocent. They were not rival gang members or a couple of people who cheated Mr. Peterson out of money. Killing someone who is wholly innocent evidences greater evil than killing someone who might share some part of the blame. (For example, of Lacy was Mr. Peterson's lawyer and had embezelled money from him, then we might understand - though certainly not excuse - Mr. Peterson's conduct).

He killed - assuming he killed them, just as we assumed Sam Shepherd killed his wife - two people for no other reason than to further his self interest. It is that type of cold, calculating killing that should be punished by death. Hannibal Lecter deserves the death penalty more than a person whose low IQ and poor socialization prevent him from knowing what he has done.

Tung Yin

He killed - assuming he killed them, just as we assumed Sam Shepherd killed his wife - two people for no other reason than to further his self interest. It is that type of cold, calculating killing that should be punished by death. Hannibal Lecter deserves the death penalty more than a person whose low IQ and poor socialization prevent him from knowing what he has done.

Wow, Fedster, you are definitely more conservative than I am on this matter!

I think that Jack (commenter #2) provides a pretty good list of cases to which the death penalty should be limited, though I'd probably include non-terrorism multiple murders (whether serial or mass) and cases in which the murder involves the infliction of extreme agony. Perhaps low IQ (if we're talking about not just someone who's not smart, but actually has cognitive problems) would get you away from the death penalty.

Peterson (as far as I know) doesn't fall into any of the categories. Yes, he's a really bad guy, and I don't have any problems seeing him locked up for the rest of his life. (And if he gets his conviction overturned on appeal, then I'll just think of him as a cad . . . .) But from a cost-benefit perspective, I don't see that it's worth it to seek the death penalty against him (and all others similarly situated).

Then again, I no longer live in California, so if Californians want to throw their money down the drain in a time of budgetary crisis, go ahead.

Fedster

Wow, Fedster, you are definitely more conservative than I am on this matter!

Ah, my liberal-libertarian side comes out here. I have less sympathy for people blessed with good looks and good intelligence who commit crimes, especially murder. Some guy born with a low-IQ and into a crappy home (where he was likely molested or physically abused) is worthy of our sympathy, since he never had a shot in life, and since he probably never had the opportunity to learn to love.

But from a cost-benefit perspective, I don't see that it's worth it to seek the death penalty against him (and all others similarly situated).

Oh - I agree with you if we're talking bucks, but I thought we were talking moral proportionality.

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