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California and the Death Penalty

By Michele Hanisee

The world contains extremely dangerous and evil people who cannot be deterred by threat of incarceration.  I'm not talking about the average gang murder or robbery gone bad.  I am talking about the people who rape infants to death; who kidnap, torture, rape and murder children; who target police officers in the line of duty; who kill not just one, but a half dozen or dozen or more innocent victims in serial and mass murders.

Such people are the reasons why California still needs a death penalty.

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The Death Penalty’s ‘Normal Accidents’

By James M. Doyle

In the final days of this year’s Supreme Court term, Justice Stephen Breyer unexpectedly launched a new offensive against the American system of capital punishment. The offensive was announced in his dissenting opinion in a case upholding the legality of Oklahoma’s lethal injection protocol.

Some commentators believed that Breyer was training his artillery on one particular target: namely, Justice Anthony Kennedy, the Roberts Court’s perennial swing voter. Just days earlier, Kennedy had displayed his taste for making history in a grandiloquent opinion for the Court in the same-sex marriage case of Obergefell v. Hodges. He might be ripe for conversion.

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The Death Penalty and Dzhokhar Tsarnaev

By James M. Doyle

The superb opposing legal teams in the Tsarnaev case will provide an indictment of the system in principle. They will prove that an adversary trial can never produce what the Supreme Court says capital punishment depends on: the community’s individualized moral judgment on a particular defendant.

No lawyers can supply what that judgment needs: a full understanding of an individual.

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The Death Penalty and the Ugly Power of Prosecutors

By Elizabeth Renter

For two months, Illinois Governor Pat Quinn stalled on his ultimate endorsement or veto of a bill that would end capital punishment in that state and commute the sentences of those currently awaiting their death to life in prison.

Nine days before the March 18 deadline arrived, he took action to formally abolish the death penalty. Though he could have waited nine days and allowed the already-approved bill to pass without his specific endorsement, Quinn cited the inability to guarantee a flawless death penalty system, taking the opportunity to point out the role of wrongful convictions and discriminatory treatment in the application of the ultimate punishment. 

Up until his last minute signature, he had given no clear indication on whether or not he would sign the legislation. While his office was bombarded with calls and letters from across the state, the country, and around the world, the governor said he had been weighing his conscience.

He wasn’t the only one. Supporters and dissenters alike pulled out all the stops when it came to arguing their positions, some basing their opinions on religious morality and others on hard facts. 

Although the suspense has ended, it’s worthwhile to look at one of the key arguments brought by death penalty supporters in Illinois because it remains relevant to the continuing national debate on  this issue.

The debate brought to light many flaws in the criminal justice system. From moral positions and related discussions of “just desserts” and retribution, to the issue of wrongful convictions and the potential state-sponsored death of innocents, no argument seemed off limits.

But of all of the arguments, perhaps the most interesting (and distracting) was the one  put forth by Illinois prosecutors, who claimed they need the death penalty as a bargaining tool, as a threat to hang over the heads of defendants.  Their argument brought the issue of plea bargains and prosecutorial power to the forefront.

Prosecutors were concerned that with one fell swoop the governor could take away a tool they often use in murder cases—the threat of death. Hold a potential death sentence over a defendant’s head with a convincing argument of certain conviction and they are far more likely to bargain with prosecutors. This, prosecutors say, is why capital punishment must be kept on the table.

It’s been estimated that well over 90 percent of criminal cases in the United States are resolved by plea bargains, with the defendant admitting to all or part of the offense in exchange for a more lenient sentence or reduced charges. And like every negotiated bargain, prosecutors know if they aim high they’ll be happier with the eventual compromise. But what happened to filing appropriate charges that could be proven at trial? 

A prosecutor wouldn’t charge someone with capital murder if they didn’t think they could gain a conviction, right? Wrong.

The Chicago Tribune recently revealed some telling statements in regards to plea bargains in murder cases, stating “the move would rob them (states’ attorneys) of an important bargaining chip – the threat of death to get guilty pleas from suspects who opt for life in prison.” Put this way, it’s obvious the concern is more about conviction numbers than it is about fact-finding, justice, or applying the statutorily correct charges to the specific criminal act.

Trials cost more than plea bargains, and plea bargains certainly play an important role in the American justice system.

But, they weren’t always so prevalent and cost wasn’t always the motivating factor. The standardization of court practices combined with mandatory sentencing laws created an environment in the late 18th and 19th centuries where the prosecutor’s choice and willingness to negotiate became a deciding factor in just what charge someone would face and their according sentence. The practice would only grow with time.

When it comes to something as serious as a murder charge, the integrity of a confession or admission of guilt can’t be downplayed. Using the death penalty as a “bargaining chip” cheapens the system and ultimately leads to questions regarding the truth of statements that might be made by defendants attempting to avoid capital punishment. Convincing defendants that the case against them is solid enough for a conviction isn’t as difficult as one might think for a prosecutor.  The ability to convince and argue is practically written into the job description.

Statistical data regarding guilty pleas made when the defendant was actually innocent are difficult to come by. However, according to the Innocence Project, 22 of the first 265 DNA exonerees pled guilty to crimes they didn’t commit. Some defense attorneys admit anywhere from 2 percent to 15 percent of their clients admit to guilt in plea agreements when they are actually innocent of the charges at hand.

Prosecutors arguably hold the most power in today’s criminal courts. Of course they don’t want to lose the ability to threaten defendants with death—its effectiveness is proven by their own admission.

But the argument over the death penalty should not be based in its value as an intimidation tool used to gain convictions. It should be focused, instead, on the motivations behind the use of the death penalty as a punishment itself,  and on whether or not such a punishment has a place in modern America.

Elizabeth Renter is a freelance writer specializing in criminal justice issues. A former corrections professional, she has been a regular blogger for Change.org and numerous defense attorneys. Her work has also been featured in Race-Talk.org and Huffington Post, among others. You can see more of her work and contact Ms. Renter through her website, www.elizabeththewriter.com.

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