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

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