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Blog | Balancing the Scales

» Read more from Balancing the Scales

Capital Punishment: Killing Them Softly

Published: Friday, August 10, 2012


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By the time a person ends up on death row, he or she has failed several times, which resulted in the ultimate catastrophic failure, such as the taking of another’s life. But at the risk of sounding like a bleeding heart liberal, society has failed a death row inmate as much as they fail themselves. Before the death penalty is imposed, the convict is already dead – society is killing him softly before our eyes.

Capital punishment crops up periodically. Texas, the most proficient executor of executions, is the reason that folks are questioning capital punishment again. On Tuesday, August 7th, Texas executed Marvin Wilson, a severely mentally disabled man with an IQ of 61, despite the fact that the US Supreme Court had previously held that death wasn’t an appropriate punishment for “a mentally retarded criminal.” But in the end, the Supreme Court denied Wilson’s request for a stay, and Texas killed him softly, as they had killed six inmates before him this year, and nine inmates on death row scheduled to die after him in 2012.

Marvin Wilson wasn’t the only high-profile execution in recent months. On September 21, 2011, the state of Georgia executed Troy Anthony Davis, a man convicted for the murder of Savannah police officer Mark MacPhail. On the same day, Lawrence Brewer was also executed for the racist, hate crime that was the killing of James Byrd. The Davis execution drew national and international attention, including a last-minute delay of execution from the US Supreme Court. The Brewer execution occurred with less fanfare and controversy, but the same result—a state-sponsored murder, I mean, execution.

The death penalty has become an applause line. Last summer, Texas Governor Rick Perry received the loudest applause of the evening when his record-breaking number of executions was mentioned during the GOP Presidential Debate at the Reagan Library. At a time when we need jobs and a reinvigorated economy, we all should have noted that response with concern.

As we think about this issue, the Bill of Rights starts us off on the right track. The Eighth Amendment seems clear. It states:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Cruel…if it’s cruel for a criminal to take a life, does it suddenly become okay when the state takes a life? The short answer is that it doesn’t. The hypocrisy and moral equivocation required to make this argument work isn’t worth the effort. Unusual…One death due to capital punishment, is one too many for me. Killing another person should always be deemed unusual, regardless of how commonplace the practice becomes.

For a brief shining moment, the United States was on the right side of this issue. In 1972, the US Supreme Court put a temporary end to the death penalty in the Furman v. Georgia ruling. According to the Death Penalty Information Center, “ In the Furman decision the Supreme Court set the standard that a punishment would be “cruel and unusual” if it was too severe for the crime, if it was arbitrary, if it offended society’s sense of justice, or if it was not more effective than a less severe penalty.” But we didn’t stay on this path for long. By 1976, the Court ruled that capital punishment was constitutionally permissible. We’ve been holding state-sponsored murders ever since, with some quibble about how we choose to conduct these state sponsored murders.

The death penalty dates back to ancient Babylon and the Hammurabi Code. We live in the immediacy of the digital age, yet we employ a penal practice that dates back to the 18th Century B.C.? The impact of race and class on who receives the death penalty cannot be overstated. Nor can the fact that there is no “do-over” for an innocent man who is executed.

Troy Davis’ guilt was an open question due to valid issues that created a reasonable doubt. Lawrence Brewer’s guilt was never in question. Marvin Wilson’s severe intellectual limitations with an IQ of 61 were not in question. The victims’ families will never get their loved ones back, so the vengeful, blood-lust for execution doesn’t fix the ultimate problem for them. But society has a larger problem: as the last Western, industrialized nation to employ capital punishment, should we be proud of this dubious accomplishment? I say no. The death penalty has no place in 21st century America. The men and women on death row are in a hopeless situation. But it is nothing new for most of them…they are dead before they get to the death chamber. We have already killed them softly with neglect and hopelessness. The injection is a mere formality.

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Kimberly S. Jones
Author: Kimberly S. Jones
Kimberly S. Jones, Esq. is an attorney and policy advocate. She can be reached at ksjesq@msn.com. Follow her on Twitter @PunditOnPoint. "Like" Pundit On Point on Facebook

Reader Comments | read reactions to this article

Kimberly S Jones wrote on October 26, 2012

If capital punishment was such an effective deterrent to crime, the why are murder rates escalating, not declining? No one has a response or solution for the people on death row, convicted on eye witness testimony, who are subsequently exonerated by DNA evidence.

If you are vengeful, that is your opinion. But as Gandhi said, an eye for an eye leaves the whole world blind.

Dudley Sharp wrote on August 12, 2012

The Death Penalty: Justice & Saving More Innocents
Dudley Sharp
The death penalty has a foundation in justice and it spares more innocent lives.
Anti death penalty arguments are either false or the pro death penalty arguments are stronger.
The majority populations of all countries may support the death penalty for some crimes (1).
Why? Justice.
THE DEATH PENALTY: SAVING MORE INNOCENT LIVES
Of all endeavors that put innocents at risk, is there one with a better record of sparing innocent lives than the US death penalty? Unlikely.
1) The Death Penalty: Saving More Innocent Lives
http://prodpinnc.blogspot.com/2012/03/death-penalty-saving-more-innocent.html
2) Innocents More At Risk Without Death Penalty
http://prodpinnc.blogspot.com/2012/03/innocents-more-at-risk-without-death.html
MORAL FOUNDATIONS: DEATH PENALTY PT. 1
1) Saint (& Pope) Pius V: “The just use of (executions), far from involving the crime of murder, is an act of paramount obedience to this (Fifth) Commandment which prohibits murder.” “The Roman Catechism of the Council of Trent” (1566).
2) Pope Pius XII; “When it is a question of the execution of a man condemned to death it is then reserved to the public power to deprive the condemned of the benefit of life, in expiation of his fault, when already, by his fault, he has dispossessed himself of the right to live.” 9/14/52.
3) John Murray: “Nothing shows the moral bankruptcy of a people or of a generation more than disregard for the sanctity of human life.”
“... it is this same atrophy of moral fiber that appears in the plea for the abolition of the death penalty.”
“It is the sanctity of life that validates the death penalty for the crime of murder. It is the sense of this sanctity that constrains the demand for the infliction of this penalty. The deeper our regard for life the firmer will be our hold upon the penal sanction which the violation of that sanctity merit.” (Page 122 of Principles of Conduct).
4) Immanuel Kant: “If an offender has committed murder, he must die. In this case, no possible substitute can satisfy justice. For there is no parallel between death and even the most miserable life, so that there is no equality of crime and retribution unless the perpetrator is judicially put to death.”.
“A society that is not willing to demand a life of somebody who has taken somebody else’s life is simply immoral.”
5) Billy Graham: “God will not tolerate sin. He condemns it and demands payment for it. God could not remain a righteous God and compromise with sin. His holiness and His justice demand the death penalty.” ( “The Power of the Cross,” published in the Apr. 2007 issue of Decision magazine ).
6) Theodore Roosevelt: “It was really heartrending to have to see the kinfolk and friends of murderers who were condemned to death, and among the very rare occasions when anything governmental or official caused me to lose sleep were times when I had to listen to some poor mother making a plea for a criminal so wicked, so utterly brutal and depraved, that it would have been a crime on my part to remit his punishment.”.
7) Jean-Jacques Rousseau: “Again, every rogue who criminously attacks social rights becomes, by his wrong, a rebel and a traitor to his fatherland. By contravening its laws, he ceases to be one of its citizens: he even wages war against it. In such circumstances, the State and he cannot both be saved: one or the other must perish. In killing the criminal, we destroy not so much a citizen as an enemy. The trial and judgments are proofs that he has broken the Social Contract, and so is no longer a member of the State.” (The Social Contract).
8) John Locke: “A criminal who, having renounced reason… hath, by the unjust violence and slaughter he hath committed upon one, declared war against all mankind, and therefore may be destroyed as a lion or tyger, one of those wild savage beasts with whom men can have no society nor security.” And upon this is grounded the great law of Nature, “Whoso sheddeth man’s blood, by man shall his blood be shed.” Second Treatise of Civil Government.

“Moral/ethical Death Penalty Support: Christian and secular Scholars”
http://prodpinnc.blogspot.com/2009/07/death-penalty-support-modern-catholic.html
“The Death Penalty: Neither Hatred nor Revenge”
http://homicidesurvivors.com/2009/07/20/the-death-penalty-neither-hatred-nor-revenge.aspx
“The Death Penalty: Not a Human Rights Violation”
http://homicidesurvivors.com/2006/03/20/the-death-penalty-not-a-human-rights-violation.aspx
“Killing Equals Killing: The Amoral Confusion of Death Penalty Opponents”
http://homicidesurvivors.com/2009/02/01/murder-and-execution—very-distinct-moral-differences—new-mexico.aspx

1) US Death Penalty Support at 80%; World Support Remains High
http://prodpinnc.blogspot.com/2012/04/us-death-penalty-support-at-80-world.html
Much more, upon request. .(JavaScript must be enabled to view this email address)

Dudley Sharp wrote on August 12, 2012

Rebuttal to the death penalty racism claims
Dudley Sharp
1) Blume, John H.; Eisenberg, Theodore; and Wells, Martin T., “Explaining Death Row’s Population and Racial Composition” (2004), Cornell Law Faculty Publications
http://scholarship.law.cornell.edu/facpub/231
2) “Death Penalty Sentencing: No Systemic Bias”
http://prodpinnc.blogspot.com/2009/07/death-penalty-sentencing-no-systemic.html
3) “The Death Penalty and Racism The Times Have Changed”, Washington Post reporter Charles Lane, The American Interest, Nov/Dec 2010,
http://www.the-american-interest.com/article.cfm?piece=901
4) SMOKE AND MIRRORS ON RACE AND THE DEATH PENALTY
BY KENT SCHEIDEGGER
http://www.cjlf.org/deathpenalty/DPenaltyRace.pdf
5) Race, Sentencing and the death penalty.
http://prodeathpenalty.com/DP.html#C.Race
6) McCleskey v Kemp, the infamous race based death penalty case decided by the US Supreme Court (SCOTUS)
Baldus’ database and work in McCleskey was quite poor.
Read Federal District Court Judge Forrester’s rejection of Baldus’ database for McCleskey.
A more thorough review is provided by Joseph Katz, who did the methodological review of the Baldus database, which was rife with errors and problems. I have it, if you care to research.
In addition, SCOTUS totally misunderstood the math involved. They ignorantly wrote: “defendants charged with killing white victims were 4.3 times as likely to receive a death sentence as defendants charged with killing blacks.”
Totally inaccurate. It was by odds of 4.3 times, or an odds multiplier of 4.3, which can mean a variables as low as 2-4%, as opposed to the 330% difference represented by 4.3 times. SCOTUS blew it big time on this.
These two articles, below, give a good explanation of a core problem with Baldus, in the McCleskey case and another of his reviews.
A) “The Math Behind Race, Crime and Sentencing Statistics”
By John Allen Paulos, Los Angeles Times, July 12, 1998
http://articles.latimes.com/1998/jul/12/opinion/op-2965
B) See “The Odds of Execution” within “How numbers are tricking you”, by Arnold Barnett, MIT Technology Review October, 1994
http://reocities.com/CapitolHill/4834/barnett.htm
and
7) Race, ethnicity and crime statistics.
For the White–Black comparisons, the Black level is 12.7 times greater than the White level for homicide, 15.6 times greater for robbery, 6.7 times greater for rape, and 4.5 times greater for aggravated assault.
For the Hispanic- White comparison, the Hispanic level is 4.0 times greater than the White level for homicide, 3.8 times greater for robbery, 2.8 times greater for rape, and 2.3 times greater for aggravated assault.
For the Hispanic–Black comparison, the Black level is 3.1 times greater than the Hispanic level for homicide, 4.1 times greater for robbery, 2.4 times greater for rape, and 1.9 times greater for aggravated assault.
From
REASSESSING TRENDS IN BLACK VIOLENT CRIME, 1980.2008: SORTING OUT THE “HISPANIC EFFECT” IN UNIFORM CRIME REPORTS ARRESTS, NATIONAL CRIME VICTIMIZATION SURVEY OFFENDER ESTIMATES, AND U.S. PRISONER COUNTS, DARRELL STEFFENSMEIER, BEN FELDMEYER, CASEY T. HARRIS, JEFFERY T. ULMER, Criminology, Volume 49, Issue 1, Article first published online: 24 FEB 2011
http://onlinelibrary.wiley.com/doi/10.1111/j.1745-9125.2010.00222.x/pdf

Dudley Sharp wrote on August 12, 2012

Of course the death penalty is constitutional.
Twice, the 5th Amendment authorizes execution.
(1) “ No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . ” and
(2) “. . . nor shall any person . . . be deprived of life, liberty, or property, without due process of law . . . ”.
The 14th amendment is, equally, clear:
” . . . nor shall any State deprive any person of life, liberty, or property, without due process of law . . .”
Over 200 years of US Supreme Court(SCOTUS) decisions support those amendments and the US Constitution in authorizing and enforcing the death penalty.
Some wrongly believe that the SCOTUS decision, Furman v Georgia (1972), found the death penalty unconstitutional. It did not.
The decisions found that the “statutory enforcement”, the laws as written enforcing the death penalty, were a violation of the 8th Amendment. Laws were re-written and new death penalty statues gained SCOTUS approval, in 1976, under Gregg v Georgia, with 39 states, the federal government and the military, eventually putting new death penalty laws into effect.
SCOTUS did not find, nor can it, that the death penalty, per se, violates the 8th Amendment.
Based upon the death penalty being integral within the constitution, through the 5th and 14th amendments, I do not believe it will ever be found unconstitutional.
The US Supreme Court was established in 1789 and has had 112 Justices through 2011, only 3 of which found the death penalty unconstitutional, on extraordinarily weak grounds, as is obvious.

Dudley Sharp wrote on August 12, 2012

and

Troy Davis & The Innocent Frauds of the anti death penalty lobby
Dudley Sharp
The Troy Davis campaign, like many before it (1), is a simple, blatant fraud, easily uncovered by the most basic of fact checking (1).
The case for Davis’ guilt is overwhelming, just as were his due process protections, which may have surpassed that of all but a few death row inmates.
The 2010 federal court innocence hearing found:
” . . . Mr. Davis is not innocent: the evidence produced at the hearing on the merits of Mr. Davis’s claim of actual innocence and a complete review of the record in this case does not require the reversal of the jury’s judgment that Troy Anthony Davis murdered City of Savannah Police Officer Mark Allen MacPhail on August 19, 1989.” (2)
“Ultimately, while Mr. Davis’s new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors.” (2)
“As a body, this evidence does not change the balance of proof that was presented at Mr.
Davis’s trial.”(2)
“The vast majority of the evidence at trial remains intact, and the new evidence is largely not credible or lacking in probative value.” (2)
None of this came as a surprise to anyone who actually followed the case, in contrast to the Save Troy Davis folks who were, willingly, duped.
1) a) “Troy Davis: Worldwide anti death penalty deceptions, rightly, failed”,
http://homicidesurvivors.com/2011/09/25/troy-davis-worldwide-anti-death-penalty-deceptions-rightly-failed.aspx
b) “Troy Davis fairly convicted, not ‘railroaded’ ”
http://savannahnow.com/column/2011-10-06/column-spencer-lawton-troy-davis-fairly-convicted-not-railroaded
2) “Innocence Hearing”, ordered by the US Supreme Court, US DISTRICT COURT, in the SOUTHERN DISTRICT OF GEORGIA, SAVANNAH DIV.,RE TROY ANTHONY DAVIS, CASE NO. CV409-130
http://multimedia.savannahnow.com/media/pdfs/DavisRuling082410.pdfTroy Davis & The Innocent Frauds of the anti death penalty lobby
Dudley Sharp
The Troy Davis campaign, like many before it (1), is a simple, blatant fraud, easily uncovered by the most basic of fact checking (1).
The case for Davis’ guilt is overwhelming, just as were his due process protections, which may have surpassed that of all but a few death row inmates.
The 2010 federal court innocence hearing found:
” . . . Mr. Davis is not innocent: the evidence produced at the hearing on the merits of Mr. Davis’s claim of actual innocence and a complete review of the record in this case does not require the reversal of the jury’s judgment that Troy Anthony Davis murdered City of Savannah Police Officer Mark Allen MacPhail on August 19, 1989.” (2)
“Ultimately, while Mr. Davis’s new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors.” (2)
“As a body, this evidence does not change the balance of proof that was presented at Mr.
Davis’s trial.”(2)
“The vast majority of the evidence at trial remains intact, and the new evidence is largely not credible or lacking in probative value.” (2)
None of this came as a surprise to anyone who actually followed the case, in contrast to the Save Troy Davis folks who were, willingly, duped.
1) a) “Troy Davis: Worldwide anti death penalty deceptions, rightly, failed”,
http://homicidesurvivors.com/2011/09/25/troy-davis-worldwide-anti-death-penalty-deceptions-rightly-failed.aspx
b) “Troy Davis fairly convicted, not ‘railroaded’ ”
http://savannahnow.com/column/2011-10-06/column-spencer-lawton-troy-davis-fairly-convicted-not-railroaded
2) “Innocence Hearing”, ordered by the US Supreme Court, US DISTRICT COURT, in the SOUTHERN DISTRICT OF GEORGIA, SAVANNAH DIV.,RE TROY ANTHONY DAVIS, CASE NO. CV409-130
http://multimedia.savannahnow.com/media/pdfs/DavisRuling082410.pdf

Dudley Sharp wrote on August 12, 2012

Ms. Jones:

Fact checking is important.

Marvin Wilson was not retarded.
As shown in the appellate ruling, below, all indications in Wilson’s life are that he was not mentally retarded, as the additional IQ tests, also below, confirm.
When I first heard about this case, it took me about 30 seconds to find this decision, below.
Wilson murdered police informant Jerry Williams, to protect Wilson’s drug dealing.
Obviously, he knew exactly what he was doing and he planned it.
Wilson claimed to be a chess player.
“The following evidence was presented in two hearings during the state habeas proceedings.”
“Wilson presented school and prison training records, including standardized testing results. Five I.Q. scores are reflected in those reports. The first I.Q. test, the Lorge-Thorndike, was administered by Wilson’s school when he was approximately 13 years old. Wilson’s full-scale score on this test was 73. At age 29, Wilson was given an I.Q. test by the Texas Department of Criminal Justice and scored 75. In April 2006, when Wilson was 46 and during the post-conviction proceedings, Wilson scored 61 on the WAIS III I.Q.”
“Case: 09-70022 Document: 00511667534 Page: 10 Date Filed: 11/16/2011 test.”
“On further testing by the defense, Wilson scored 75 on the Raven Standard Progressive Matrices and 79 on the TONI-II I.Q. tests. A score of 70 or below supports a finding of mental retardation. “
from
http://federal-circuits.vlex.com/vid/marvin-wilson-rick-thaler-director-332585578

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