Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

“When any government, or any church for that matter, undertakes to say to its subjects, This you may not read, this you must not see, this you are forbidden to know, the end result is tyranny and oppression no matter how holy the motives.”     Robert A. Heinlein

May 20, 2006

… To be hanged by the neck until dead

by Chris

“I hereby direct the sherrif of this county to remove you from this courtroom forthwith, and to transport you to the gallows, where before sundown this day you are to be hanged by the neck until dead; your body left to be picked at by the crows, until the Sherrif directs it to be cut down, drug to a shallow grave in unhallowed ground, and burried face down in the dirt.”

– Purported death sentence in the American west, attribution unknown

Penn and Teller have a show called “Bullshit!” in which they take various elements of our society and culture and expose them as… bullshit.

My favorites so far are the gun control, and recycling episodes; but on the NoR forums yesterday someone brought up the death penalty show saying :

“Their Anti death penalty show used the ONLY good anti death penalty argument I have heard.

Do you REALLY trust the government to kill people?” — Yogi

Which is the only major reason I’m not sure about death penalty.

I have no existential crisis of governmental nature with regards to the death penalty. I don’t believe the “Sinking down to their level” or “The government shouldn’t be a murder” arguments. I think they are sheer sophistry in their nature, and used to disguise the true problem that these people have with the death penalty; in that ultimately the death penalty is the responsibility of the people, and if they are of the people then the responsibility for that persons death is theirs. Most of these folks don’t feel responsible enough to take care of a CAT nevermind having a life and death decision for another person.

Obviously I don’t have that problem. When a member of a society egregiously violates that societies rules, he must be cast out of that society by the other members. This can be done temporarily through prison or banishment, or permanently through execution or exile. The death penalty is simply the ultimate sanction in a society that has no permanent exile.

But I still have reservations.

I believe the death penalty is just in nature, but heavily laden with pitfalls in application.

What it comes down to is, do I trust the government to have the authority to kill it’s own citizens for criminal offenses. This is a question on which I am troubled and conflicted.

These are people who can’t get fixing the streets right, and I expect them to get life and death right?

note: I also have no problem with the death penalty for unlawful combatants; which is not a civil criminal matter, but a military one. That is as morally clear and just as can be, presuming the definition of unlawful combatant is clear, and consistent.

To answer that some would say “It’s not the government, it’s the people” to which I say bullshit.

Yes philosophically this is true as I describe above, but again, I have no philosophical objection to the death penalty. The people have the right to protect themsevles from those who violently violate their rights, even by death. My objections are entirely practical, as is the example.

The next answer is usually “Let the jury decide”, but you all know as well as I do that juries are fickle and often stupid things (Moussaui anyone). A jury trial often ends up with the side who the jury “liked” more winning, without regard to truth or justice.

The technique to combat this? Confuse and overwhelm the jury as much as possible so they can’t come to a decision.

Oh my goodness yes, that’s completely just right there, sure it is.

The adversarial nature of our legal system is structured so that within the rules, the best LAWYER wins, not the best case. This is oviously not always true, a very bad case will generally not be won by even the best lawyer, unless he is coming up against the worst opponent. However death penalty cases are most often prosecuted by politically ambitious ADs or AAGs, and they are most often defended by public defenders, and lower scale lawyers doing pro-bono work. This generally comes out as the best against the worst (at least in trial phase, in appeal the big anti death penalty types come to play, and they are generally VERY good lawyers).

Additionally, death penalty cases are often extremely brutal, horrific crimes. By painting the nature of the crimes vividly, it is ofetn possible to bring up mob mentality in the joury, a “someone must pay” attitude, which can make a defendant a target, whether he deserves it or not.

Given this, I have very little confidence in the jury system. In fact I think if a defense attorney thinks his case has any merit at all, and he has a black, multiple offender as his client, he may be better off facing a judge alone; who will be more likely to deal with the technical merits rather than social and emotional factors (at least in theory).

What do I mean by this?

Black men disproportionately commit death penalty offenses. Black men are disproportionately charged in death penalty cases. Black men are disproportionally sentenced to the death penalty when such sentencing is either discretionary to the prosecutor, or decided by the jury (any non-mandatory sentence really).

When I say disproprtionately, I mean that they are charged, convicted, and sentenced more than the percentage of crimes they commit which would be eligible for the death penalty as compared to other racial groups. If they commit 40% of all death penalty offenses (and that is generally the number you see), but they are charged in 60+% of all death penalty cases (and that’s also the number you see), that is disproportionate.

Why is that? Is the system racist? Are the prosecutors?

Not exactly explicitly racist no; but prosecutors know it is far easier to convict a black man of a death penalty offense. This is both for practical reasons: most death penalty offenders are multiple past offenders; most black offenders are poor; most poor offenders have bad lawyers; and more emotional reasons, such as people as a whole are more willing to believe a black multiple offender deserves to die.

Even black people.

In fact an all black jury is more likely to convict a black man of a crime than an all white one is. This has been informally called the “That niggahs just crazy” theory.

The quote is from a black juror in the retrial of a very famous murder case (Rubin “Hurricane” Carter). The black jurors had apparently made up their mind very quickly in the case that the defendant did it, because they thought he was mean, nasty, uppity, crazy, and capable of it; based on their past experience with other men like him in their lives; and their own social normalizations.

Sidebar: They were right in that Carter was a violent and unstable man with a past criminal history; but based on the evidence – and the mishanding thereof – there was no way he should have been convicted, guilty or not. THe same goes for OJ, except in that case the jury made the right decision, if most likely for the wrong reasosn. O.J may or may not have commited the murders, but the police mishandling of the case and the evidence, compounded by a near totally incompetent prosecution, and a judge who was more concerned about looking bad on TV… well there is no way that OJ should have been convicted under those circumstances. Which I think underscores my point about trials not being about truth or justice, but gamesmanship.

White jurors on the other hand are more likely to feel that voting guilty, or voting for the death penalty is a subconscious act of racism or fear on their part, and are in fact more likely to vote guilty, but vote DOWN the death penalty (especially younger to middle aged women if they havent been the victim of a violent crime – if they have they are more likely to vote for the death penalty – and catholics).

Setting aside all that, these are the practical realities on the ground, without regard to their root causes:

1.The government screws up a lot. If they cant get most things right…
2. The best lawyer often wins, not the best case
3. Prosecutors are jsut as good at twisting things as defense attorneys, often better
4. When facing a multiple offender the prosecutor has a natural advantage. The jury KNOWS the defendant is a criminal it’s not a big leap to think him a killer.
5. Black men are more likely to be convicted, justified or not
6. Black men are more likley to be sentenced to the death penalty, justified or not
7. Juries are fickle, emotional, and irrational
8. Poor offenders generally have bad lawyers
9. Bad lawyers generally do poorly with juries
10. If a jury doesnt like the defendant, and doesnt like the lawyer, he’s probably gonna die whether he deserves to or not

Now I’m not saying there arent mitigating factors on the other side, like people who are just naturally reluctant to vote for the death penalty (liberals, catholics, anti-government types etc…), and the high burden of proof that is in theory necessary for a conviction (though in practice not always so if the defendant is poor, a repeat offender, and has a bad lawyer). It’s just that all these factors give me pause.

I DO believe in the death penalty. I believe it is just and right. I believe that it is useful and effective, not as a deterrent but as permanent removal from society. In fact, I believe the death penalty should be expanded to aggravated rape, aggravated kidnapping, child molestation, and other charges.

I just worry greatly about how it is administered, and think we absolutely must use the utmost circumspection in doing so.

It’s funny how catholic teaching stays with you isn’t it. Many people believe that catholics and the church are against the death penalty; but this is not striclty speaking true. The churches position, and my position; is that the death penatly is the ultimate act of members of a society protecting themselves from individuals who would do them harm. Like a just war, there are just executions; but we must use the greatest care in embarking upon either.

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5 Comments

  1. Your reference to a black juror in the Carter trial saying that the “n**** must be crazy” is probably from the Bob Dylan ballad “Hurricane,” which includes the line, “And to the black folks he was just a crazy n****.” The line is actually Carter’s explanation for why there was no outcry from the black community in Paterson New Jersey when he was arrested and doesn’t refer to jurors as such. There was only one black juror in the first trial. More than 12 jurors were impanelled for the trial and when lots were drawn, this juror did not serve on the final panel. Interviewed afterward, he said that he thought that he would have voted “not guilty.” There were two black jurors in the second trial. They both voted “guilty.”

    Comment by L. Manning — May 21, 2006 @ 10:30 am
  2. The attribution is from the second trial, and (accurate or not – it was from newspaper accounts referenced during the run of the movie “Hurricane”), I’m assuming was influenced by the song.

    Comment by Chris Byrne — May 21, 2006 @ 10:33 am
  3. Oh and good website. Hurricane was a seriously unbalanced presentation of the story (the song and the movie).

    I don’t know if he did it, and clearly the trial and evidence were poorly handled (thus he most likely should not have been convicted), but you can’t really say he was “railroaded” etc…

    The fact is, it is today, and was then, easier to convict a black man with a criminal history of a crime whether they commited it or not. Rubin Carter was a violent, and unstable man with a criminal history; and thus an easy target.

    Comment by Chris Byrne — May 21, 2006 @ 10:38 am
  4. Chris,

    I think I’m in about perfect agreement with you, and to some extent, Penn & Teller. I think that certain offenses are worthy of getting you removed from society “with extreme prejudice”, but don’t necessarily trust the government to get it right.

    Were I to be on a jury, I don’t think I could in good conscience sentence someone to death without some tremendously strong evidence. We’re talking eyewitness testimony from one (or hopefully more) credible witnesses. Right now we see folks getting sentenced to death on circumstancial evidence, like Scott Peterson. I think he probably did it, but I’m sure as hell not sure enough of that fact to see him get the Kevorkian cocktail…

    Comment by Brad Warbiany — May 21, 2006 @ 5:13 pm
  5. Eyewitness testimony is actually the least reliable. Short of DNA evidence I would have a hard time sentencing anypone to death. I much prefer the exile method.

    Comment by James — May 21, 2006 @ 10:12 pm

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