(CNN) Trump says administration will seek death penalty in murder cases in DC.
While I am not in principle opposed to the death penalty, in the U.S., as historically applied, it has fatal flaws, which have several flavors.
Criteria for guilt. The instruction to the jury, by which the presumption of innocence is replaced by, “guilty beyond all reasonable doubt”, lacks an objective standard. In practice, the judgment of twelve angry people who debate beyond eye and ear, cannot be codified objectively. The combination with defective rules of evidence has on a number of occasions resulted in miscarriages of justice. When the death penalty is applied, these become fatal and irrevocable.
Quality of evidence. See (CNN) Plans to execute Robert Roberson paused after judge approves restraining order just 90 minutes before his scheduled execution. Quoting,
Robert Roberson was convicted of shaking his child, causing her death. The conviction relied on expert testimony that the injuries were caused by shaking, not by a fall from a bed. Expert testimony which is not validated by the law of large numbers is frequently contradicted by other experts, with spectacle in the courtroom.
Just between you and me, there’s a good chance Roberson is guilty. Does the evidence imply “beyond all reasonable doubt’? The detective who ran the case doesn’t think so. Now place yourself in the jury room, where the phrase “baby killer” swirls like thick tobacco smoke. The result of tangled emotions is a codified blend of justice with street justice, which is no justice at all.
Roberson is on death row due to evidence which has not been qualified by the law of large numbers, considered by a jury who could not be expected to be mathematicians, powerfully influenced by the heinous nature of an unproven crime, until they prove it. Notice the circularity: the heinousness demands conviction.
The plea bargain. A legitimate way for a defendant to bargain for himself, it can be an illegitimate tactic to deflect a capital charge onto another defendant. See Derek William Bentley, dramatized in the movie Let Him Have It. The trigger-man escaped the noose; Bentley did not.
Quoting from the Death Penalty Information Center ,
A Death Penalty Information Center database of every death-row exoneration since 1972. For every 8 people executed in the United States, one other person has been exonerated from death row.
How can we encapsulate this flaw of the criminal justice system? By this oxymoron: One standard of “beyond all reasonable doubt” is insufficient. Capital cases require an enhanced standard, with restricted rules of evidence. it would be an admission that the system is not perfect enough. But if we fail to make that admission, we perjure ourselves.
***Let Him Have It***