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On Protecting The Innocent, Or, Is There A Death Penalty Compromise? September 24, 2011

I don’t feel very good about this country this morning, and as so many of us are I’m thinking of how Troy Davis was hustled off this mortal coil by the State of Georgia without a lot of thought of what it means to execute the innocent.

And given the choice, I’d rather see us abandon the death penalty altogether, for reasons that must, at this moment, seem self-evident; that said, it’s my suspicion that a lot of states are not going to be in any hurry to abandon their death penalties anytime soon now that they know the Supreme Court will allow the innocent to be murdered.

So what if there was a way to create a compromise that balanced the absolute need to protect the innocent with the feeling among many Americans that, for some crimes, we absolutely have to impose the death penalty?

Considering the circumstances, it’s not going to be an easy subject, but let’s give it a try, and see what we can do.

Let’s Fix An Error Dept.: Apologies are in order, because in our last story we identified The Riverside Church in Manhattan as the place where George Carlin learned to be Catholic – and that could not have been more incorrect. Bad research was the culprit here, and it’s something that we’ll obviously be working to improve. So, once again: sorry, and my bad.

Now if all the states want to limit the imposition of the death penalty to just the guilty (and after what we just saw in Georgia, that’s no longer 100% certain), one way you could do it would be to make it a lot harder to prove guilt – and that’s what we have in mind for today’s proposal.

As you may recall, we convict today with a “burden of proof” that is described as “guilt beyond a reasonable doubt”; as we now know, it is possible to prove guilt, beyond a reasonable doubt, even when there’s a whole lot of reasonable doubt to be found.

In Davis’ case, he was given a chance on appeal to prove his innocence, and despite this conclusion from the Judge hearing the case…

“Ultimately, while Mr. Davis’s new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors…”

…Davis was still executed.

So the way I would get at this problem would be to change the burden of proof in these cases: if you want to execute someone who is facing an aggravated murder or other capital charge, instead of “guilt beyond a reasonable doubt”, I would require “guilt beyond all doubt”.

If you can’t get to guilt beyond all doubt, but you can prove guilt beyond a reasonable doubt, then you could impose no sentence harsher than life without parole.

If this proposal had been in effect in Davis’ case, there could have been no execution after he argued that he was denied the effective assistance of counsel, because that would have erased “all doubt”; after that he would have had the rest of his life to demonstrate that he was wrongly convicted.

There are going to be a few reasons people might not like this proposal, and I’ll try to address some of them briefly:

Right off the bat, many will complain that because of the new burden of proof it will be virtually impossible to have executions at all; I would tell those folks that if that were to occur…then the system is working. The entire purpose of this plan is to make executions an extraordinarily rare occurrence and to move just about everyone on Death Rows nationwide to a “life without parole” future.

Beyond that, many will say that capital punishment is morally unacceptable under any circumstances, and to those folks I would respond that y’all make a pretty good point…but at the moment there are a lot of Americans who do not hold that moral position – and they have strong feelings too – and unless we can move them to a different point of view, then the best chance we have to prevent the innocent from being executed is to find some sort of compromise like this one.

(Don’t believe me about that “strong feelings” thing? How many of the readers here would be OK with the death penalty for Osama Bin Laden, if he were proved “beyond all doubt” to have been the person behind 9/11?)

A similar line of thought is expressed in the idea that we are seeing more and more voters who do oppose capital punishment, and with a bit of patience, this problem will go away.

After what happened to Troy Davis, I think there’s more urgency now than there was in times past, and that’s because we now see that at least one State will quickly kill a prisoner in order to “clear the case”, suggesting to me that patience is not as good an option as it was before.

Finally, I suspect many will feel that the effort to pass a proposal like this one would distract from the effort to end the death penalty, which is, again, a pretty good argument.

To those folks I would respond that we may get some states to end the death penalty today, but there are a lot of other states that are not going to want to give up the death penalty for some time to come (remember the people who cheered Rick Perry’s execution record?), and if we aren’t going to be able to end the death penalty completely, then I think we have to offer some sort of compromise; a compromise based on the concepts of “killing the innocent isn’t The American Way” or “you could still execute Osama” could appeal to voters who simply won’t give up on the death penalty altogether.

So that’s what we have for you today: even though I personally would prefer that we end the death penalty and just go to life without parole for all these crimes, I don’t think we’re going to achieve that in a lot of states; with that in mind I’m proposing a compromise that would protect the innocent by ending virtually all executions, even as it allows an extraordinarily difficult to reach exception that could satisfy those who absolutely do not want to see the application of the death penalty come to an end.

It’s an imperfect compromise, I’ll admit – but in a big ol’ swath of America that runs from roughly Florida to Idaho, it may be the best compromise we can make right now, and right now, in those places, that might have to be good enough.

Entirely Off The Subject Dept.: We are still trying to get signatures for the petition to change the name of Manhattan’s W 121st St (one block from Seminary Row) to George Carlin Street, and we need your help; you can sign right here. The goal is to reach 10,000 signatures by Monday, so…get to it.


On Death And Justice, Or, What If The Death Penalty Could Be Fair? June 28, 2009

Those who support Progressive causes are in an odd position these days: we’re often in the majority on issues that matter; and we’re seriously talking about how to turn what, just a few years ago, was a wish list…into a “reality list”.

Staying in the majority, however, requires the assistance of centrist voters–and that means, from time to time, finding philosophical compromise with voters we’d like to keep “in the fold”.

In years past, the issue of the death penalty has created a considerable chasm between Progressives and centrists; with the one side concerned about the misapplication of capital punishment, and the other convinced that, for the most heinous of crimes, the only way to achieve a truly just outcome is for the guilty party to face the most severe of punishments.

What if we could bridge that gap?

In today’s discussion we propose to do exactly that: to create a death penalty process that only executes those who are truly guilty and excludes those who might not deserve to be put to death…in fact, those who might not be guilty of any crime at all.

Before we proceed further, a bit of “full disclosure”: I am personally inclined to end the death penalty. The reason for this change in personal philosophy is related to the work of The Innocence Project, who would want you to know that as of the date of this writing 240 people convicted of various crimes were later exonerated in the United States through the use of DNA testing (17 of those being inmates who were on various Death Rows at the time).

It occurs to me that the only acceptable level of error in executions is zero, which has also led me to support the option of life without the possibility of parole as an effective death penalty substitute; the thinking here being that a wrongly convicted individual can always be released from life without parole…but until Dr. McCoy returns from his five year mission, the odds that an accidental execution can be reversed are quite low indeed.

“On the other hand, the worst nightmare of a death penalty supporter and of everyone who believes in our criminal justice system is to execute an innocent man.”

–From A Charge to Keep, George W. Bush

As you are no doubt aware, in order to obtain a criminal conviction in the United States a prosecutor must prove “guilt beyond a reasonable doubt”.

This standard, however, does not guarantee that only the guilty are convicted.

Improper convictions can be obtained for a variety of reasons, which can include eyewitnesses who make mistakes, situations that involve false confessions, the inappropriate use of informants, or even the occasional governmental misconduct.

To reduce the potential for these sorts of failures, I’m proposing that after conviction, and during the “penalty phase” of a trial involving capital crimes, we determine if the evidence presented can meet a higher “burden of proof” than what is required to merely convict a defendant of the crime for which they are facing trial.

That higher burden of proof:

“Guilt beyond any doubt.”

In other words, if, during the penalty phase, the defense could create any doubt at all as to whether the defendant is guilty, or that the conviction is appropriate, that defendant would no longer be death penalty eligible, and a sentence of life without the possibility of parole would be imposed.

This is a good start to reduce the number of improper capital convictions…but there is another important reason the innocent are convicted that this proposal cannot address: incompetent lawyers.

However, there is a way to get at a resolution for this problem: a requirement that all defendants in capital cases be represented by Federally-accredited “death penalty” attorneys, combined with a requirement that each State maintain a staff of accredited attorneys that would be available to defend those individuals who are facing capital crimes and cannot afford private accredited counsel.

All of this could be imposed by Congress with statute law; and an Act defining “cruel and unusual punishment” in part as a failure, in capital cases, to provide the “guilt beyond any doubt review” and accredited attorneys should do the trick just nicely.

Dimitri: I was talking to Zeus the other day, and he thinks you’re a bad influence on me.
Tasso: That’s interesting, because I think he’s a bad influence on you.
Dimitri: In what way?
Tasso: He makes you think the voices in your head are real.

–From Plato and a Platypus Walk Into A Bar…, Thomas Cathcart and Daniel Klein

There are two counterarguments that might quickly occur to the reader, and I will attempt to address them both here.

First, it is indeed true that this will not absolutely guarantee that there will be no further improper executions…and it is also true that the only way to make such an absolute guarantee is to end the use of the death penalty altogether.

However, this is a great compromise, in that is reduces the odds of such an execution to near zero while still leaving open the potential for executions in cases where no doubt of any kind can be established by the defense.

Secondly, there will be concerns that this proposal will only allow the death penalty to be imposed under the most extreme and unusual circumstances, to which I would reply: that’s exactly correct.

The idea here is that virtually everyone who is accused of a capital crime would end up sentenced to life without the possibility of parole…except in those most rare of circumstances where there can be no doubt whatever as to the guilt of the accused.

This is also a great compromise—after all, does even the most conservative Christian voter amongst us really want to take the chance that innocent people are executed?

To help this process along, I would further propose that Congress enact legislation that allows anyone facing Federal crimes or capital crimes, in any State, the right to obtain and introduce, post-conviction, evidence that could absolutely prove the innocence of a convicted person…and I would encourage Congress or the State Legislatures to pass legislation that would apply this protection to those convicted of all crimes in all States.

We might consider creating “Review Magistrates” to conduct an initial, less formal, review of such claims, with claims deemed appropriately credible advancing to a more formal Court setting for final disposition.

This will also cause some to object to the added burden imposed on the legal system…but the goal of the Constitution’s due process and equal protection clauses is not to round up a few of the innocent in order to get all the guilty incarcerated…instead, it’s just the opposite: to let a few of the guilty go free in order to ensure that the odds of the innocent being convicted remain as low as possible.

And with all that said, let’s wrap this thing up:

In order to find a way to compromise between the philosophies of those who seek to end capital punishment and those who support its application, I’m proposing that we review the evidence after conviction in capital cases, as part of the “penalty phase” of such trials, and if the defendant can create any doubt at all, of any kind, as to the propriety of that conviction, that defendant shall be sentenced to life without parole.

I’m also proposing that all defendants facing capital crimes be represented by accredited “death penalty” attorneys, and that defendants have the opportunity, post-conviction, to present exculpatory evidence if it should become available.

The use of the death penalty, not unlike the issue of abortion, has pulled people of good conscience to diametrically opposite sides of a national debate that is not easily resolved.

This set of proposals tries to find the compromise between those two sides, and in doing that we hope to convince centrist voters that Progressives are more than just wild-eyed dreamers—that, instead, they’re realists who seek solutions that represent the interests of all Americans, even those with whom they might not always agree.

In a political world where one side seeks fairness and compromise and inclusion and the other side seeks a ever-crazier brand of moral purity…which they can’t quite seem to live up to…it seems to me that the side seeking compromise is hugely advantaged in elections…and that, as far as I’m concerned, sounds pretty good.

Special Note: We have become aware of concerns related to the health of Walter Cronkite, and we hope he is as hale and hearty as he would want to be.

WARNING—Self-Promotion ahead: I am competing for a Netroots Nation Scholarship, and I was not selected in either the first or second rounds. There is one more chance…and while I’m not inclined to use the “hard sell”…I guess I will today.

If you like what you’re seeing here, and you’d like to help me make these stories even better, swing by the Democracy for America site (even if you have before…) and express your support.

All of us here thank you for your kind attention, and we now return you to your regular programming (which, in keeping with the “hard sell”, is rated PG, instead of the usual G).