Some thoughts on the death penalty

The current trial of Casey Anthony has raised the matter of the death penalty again to the forefront. There are many moral arguments for and against, and there are also Constitutional arguments. I’ll refer to these briefly, but then raise another issue that is neglected in most discussions – the burden of proof.

Our Constitution, as amended, has a prohibition on cruel and unusual punishment. The uneven application of the death penalty in the several states led the U.S. Supreme Court to prohibit it for a time, until the states clarified their laws. Unusual could be defined as inconsistent application, and that was their effective ruling. I agree.Whether the death penalty is cruel is a matter for a higher authority than myself.

Let me state my personal opinion before going on to my suggestions. I believe that anyone guilty of heinous murder, the killing of individuals with cruel disregard for life, should suffer the death penalty. Some states have incorporated that into their law, but have not policed it with regard to the local prosecutors (I could name a few in my home state). Death will come to us all, it is not death that is our fear – it is the knowledge that it is imminent. The killer who kills the undefended despite the pleas for life. It seems to be inconsistent, but I see a difference between the killer who shoots in the commission of a crime, and the killer who has completed the crime and kills anyway. It is a dichotomy in my personal opinion, and one I’ll not try to explain.

Another moral matter is the accomplice, there have been cases where the “driver” gets the death penalty while the “shooter” gets off for “turning state’s evidence”. There was a case about 15 years ago in Georgia or the Carolina’s like that.

But those moral matters aren’t my main concern as to the law. Our traditional law, taken from the English common law, states that guilt must be found “beyond reasonable doubt”. I am not a lawyer, although I studied Jurisprudence in college – and was Legal Officer on my ship in the Navy. (Or was it Law Officer – one was an attorney and the other had seven weeks of  UCMJ schooling).

My standing request, in Court’s Martial where I was defending or Trial Counsel, were that the President of the Court instruct the Board on the definition of reasonable doubt. “Any reasonable scenario where the events in evidence could have occurred, and yet the defendant not have caused them, is reasonable doubt. The personal opinion of the Board members as to innocence or guilt is irrelevant, the relevant factor is whether it was proven in court beyond reasonable doubt.

I believe that the burden of proof for the imposition of the death penalty should be “beyond shadow of doubt”. Years ago NYC Police Commissioner Murphy was asked if he thought the death penalty was a deterrent. He answered “I don’t know, but it does reduce recidivism”. Glib, but only accurate if the original conviction was valid. But now we have to define “beyond shadow of doubt” – another damned problem.
Let me try, I’ll offer two scenarios.
I  hear an altercation outside my ground floor apartment in Greenwich Village (I did live there a while ago). I am young and brave (I was that once) and I run outside. I’m in time to directly witness the gratuitous murder of someone who has already been knocked to the ground and disabled by his assailant – the assailant pulls a gun and puts it to the head of his victim and fires. The assailant is wearing blue trousers and a red shirt. I tackle him before he can get away, my neighbors grab the gun and call the police. The assailant is never out of my control before apprehended.
Same scenario, but this time I’m slower – I see the assailant running away, and he is faster than I. He turns the corner and runs up Hudson Street. The neighbors call the cops. A man in blue trousers and a red shirt is apprehended two blocks north, and he has the gun.
In the first case there is no shadow of doubt, but in the second it could be that another man in similar clothing was on Hudson Street and the assailant had tossed the gun. The second man picks it up and decides to keep it, but then runs because of the sirens (and doesn’t want a gun possession rap). The assailant turned the next corner and was ignored in the chase of the more obvious suspect.
The latter is not a reasonable scenario, it is very unlikely. The man apprehended should be considered guilty beyond reasonable doubt. But it is a possible scenario, so the guilt is not beyond shadow of doubt.
The death penalty should be reserved for cases beyond shadow of doubt, the normal burden of proof should be raised so as to avoid unreversible error. The issue of the morality of the death penalty is secondary to the issue of the burden of proof. We should all be able to agree on that.
Best, Jon

A Flaw in the Constitution

Section 1 of Article IV needs to be amended. “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State”. This needs to be amended to add “unless they would require that other State to recognize and accept said Acts, Records and judicial Proceedings when they are illegal in that State”.

The matter of gay marriage is not a primary concern of mine, but it will suffice to raise the issue. The Defense of Marriage Act, and the pressure for an amendment to extend it, would not be necessary if the states could choose whether to recognize spousal benefits conferred by other states where the marriage is legal. The nature of the federal system is such that the rights given in one state should not be forced on another state – a Bible belt state should not  be forced to give marital rights to those who couldn’t be married in that state.

Wow, I can already see the responses – I’m bigoted, anti-gay, etc. Before answering let us consider some other licenses. I grew up in NJ, I could get a driver’s license at 17. I was not allowed to drive in NYC (20 miles away) until 18. In western states with wide open spaces some could get driver’s licenses at 14. Should NJ have been forced to recognize, under Full Faith and Credit, those licenses? I had a rifle at 12, and a pistol at 18 – should my NJ gun licenses allowed me to take them to NYC? (Had a problem with that – when I was on sea duty in the Navy my parents moved back from NJ to NYC, and took my pistol among my possessions. When I visited I took it, separated the cylinder from the body of the gun, and took it to my home port, Naval Station, Newport – and tried to give it (in two bags) to the guards at the gate. They sent me to the local police, no one wanted to touch it. I just kept it in my car with the body in the trunk and the cylinder in the glove compartment).

OK, I got off on a tangent – but it is still to the point. We have accepted for many, many years some matters where Full Faith and Credit are denied – but all have been logical. A young driver from Montana isn’t necessarily qualified to drive in NYC traffic, but a case could be made that he had the right under S.1,A IV.

Do the advocates of gay marriage, and the commensurate burden on states where it is not legal, also advocate that a “carry permit” from Texas should apply in NYC?

As this is in an area likely to raise controversy I’ll offer my own opinion on marriage. Marriage is a word, and a word long associated with a religious ceremony (even before secular governments). Let’s just drop the government from the process. Civil unions for all, no “marriage” certificate from the town clerk. Government’s only purpose in the union is to set the rules for spousal benefits in taxation, law, etc. – it should not be involved in the terminology. Offer a “certificate of union” to both hetero and homo sexual couples (and the commensurate requirement of a “certificate of divorce”.

That last is a point that is actually a concern of mine. I lived in Greenwich Village for about 25 years. Most of the couples in my building were gay – and a number of them city employees (teachers, etc.). I strongly resented that the gay partner got spousal rights without benefit of commitment. Let me say before you jump on me that the majority of gay relationships I knew were of long standing and didn’t “game the system”. But there were enough who did to be annoying. They would have serial relationships, and the structure of the City’s system allowed them to bring in the new and throw out the old.

So I guess I’m coming to my viewpoint. I’m in favor of gay “marriage”/unions  – and in favor of gay divorce requirements. In order to get spousal benefits from the government (joint tax returns, legal rights, etc.) one should have to commit legally, and submit to the courts when one wants to break up the property. To that end I’d like to drop the word “marriage” or “wedding” from official forms – just call them all a civil union, be they a prince and princess, or be they two queens. Reserve the old words for the church, and let each church make its own choice.

Oh Hell, I really wanted to discuss the Full Faith and Credit, and I digressed. Suffice to say that there will be another article on Obama Care, EPA, etc, and the “commerce clause”. There is a relationship between the commerce clause and A.1/S.IV and their implementation.

Best, Jon

The Koran, and the holy word

The statement has been made, in the wake of the recent violence, that as the Q’ran is the direct word of God (in contrast to the Jewish and Christian Bible, which were written by men over time) that it is therefore a greater offense to burn the Q’ran than to burn a Bible.

There are orthodox Jews and fundamentalist Christians who consider the books of the Torah (and for the Christians also the New Testament) to be the word of God. There are others who see the books as a history, one inspired by the word of God – but not totally the direct word of God, as the words were transcribed by men over time.

Muhammed either wrote or transcribed the word of God over a brief period, brief when contrasted with the centuries that it took for the Old and New Testaments. It is not my place to judge whether Muhammed was putting the word of God into writing, or whether he was writing his interpretation of the word of God.

But it is disturbing that so many accept that Muhammed’s writing is a direct transcription of the word of God, while most accept the metaphor, history, and dicta of the Bible/Torah. If the base assumption of Islam is that the Q’ran is the direct word of God then why is our society so dismissive of the orthodox Jews and fundamentalist Christians who see the Bible as the same. What is sauce for the goose is sauce for the gander, unless one has an agenda.

Personally I’m atheist – not an Atheist, Atheism is in itself a religion as the denial of the possibility of a god is as much a matter of faith as the affirmation of the certainty of a god. From the Greek, I am without god (atheist) – and that because I’m without knowledge (agnostic). But being of an age I’d be quite pleased to find that there is one, and that I’ll live an eternal life.

Hitchins, Dawkins, and others, are religious. They have a faith in the lack of a god, and they believe they have the knowledge to say that. Religeon is a faith in the unprovable, whether it be the presence or the absence of the diety.

Bringing back the circle to the beginning. The apologists for the violence following the burning of the Q’ran by the fool are falling into the trap of acceptance of a militant religion – the Q’ran is the true word of God only to those who take it so. It can also be the metaphorical word, as the Bible/Torah are taken by most, and it is about time that the Muslim community stood up and took a stand on that

If there is a God I doubt that the creator of the universe would sweat the details of beards, kosher food, or the day of worship. Such an omnipotent being would have a pride in the development of His creations – as long as they respected his other creations.

Best, Jon

The use of “torture”

The definition of torture is a matter for argument. At one extreme some call anything that makes one uncomfortable, or in fear, to be torture. At the other extreme it is defined as the permanent disabling with extreme pain. Let us assume the former, for the sake of discussion. That would make the playing of loud rock music outside Noriega’s compound torture (and I might agree, being a musician). BTW, that is the proper definition of “begging the question”. It means allowing a proposition one may not agree with for the sake of the argument – not ducking the question.

The FBI, and other criminal investigation agencies, have shown studies that indicate that “coerced interrogation” does not get reliable information. The CIA has had success with extreme methods, as shown in the tracking down of UBL.The problem is that we are dealing with apples and oranges. The criminal investigation agency is looking for evidence that can be presented in court. Even if we didn’t have the Constitutional prohibition of self incrimination, and the requirement for due process, there would be the “Inquisition problem”. The subject may say anything to stop the torture, the evidence is faulty.

On the other hand, the CIA, and other agencies involved in the protection of the US from ongoing war, or whatever one wants to call it, don’t have the need for accurate information. They need bits and pieces that they can then verify by other means. They aren’t looking to convict a criminal, they are looking to prevent further attacks. They aren’t going to send in the troops on the “confessions” of one who is interrogated – they are going to spend a lot of time connecting the dots from various sources.

I am in full sympathy with Senator McCain’s view that torture is not effective – he went through it. But he was being tortured for propaganda and political reasons – as a POW military pilot he could have no information that the Vietnamese could use to counter the US prosecution of that war. The torture was a gratuitous attempt to break him and make him an instrument of propaganda. But the same doesn’t apply in an asymmetrical war where the enemy is an amorphous entity, and the captive individual may have bits and pieces of information that can lead to the core of that entity. (Note that I’m careful to use general terms, I’m not waffling – I’m trying to avoid the current situation’s terms on purpose).

There is a moral question involved, and I accept that. “We don’t use torture, it is against our principles”. And Wilson’s Secretary of State said we wouldn’t spy – “gentlemen don’t read other people’s mail”. The valid purpose of saving lives, and particularly the lives of our fellow countrymen, should be a higher morality than the prohibition of torture.

Having said that, I’ll say that I’m against torture for any purpose. I now come back to the original premise as to the definition of torture. The rack, the Iron Maiden, the auto de fe, the pulling of fingernails. Those are torture as they inflict extreme pain as well as permanent damage. But the “enhanced methods” of interrogation – water boarding, sleep deprivation, and other such – are designed to be temporary, and to inflict fear of further methods. The interrogation is normally done later, when the subject has had time to absorb the treatment. It is an effort to weaken resolve, not to get any invented “confession” to stop the pain. The Inquisition was a primary example of the latter, say anything to be allowed to die and stop the torture.

And that is where the apples and oranges lie. One approach is to get good information that may be used as evidence – the other is to get leads that can be checked out and compared with other leads. One is to convict a criminal, or to find his associates in a crime that has already been committed – the other is to gain information that may help in preventing an act of war, or terrorism. The latter should only be used with the authorization of the heirarchy of command, up to the CinC. It should be used carefully, and with review.

Best, Jon