Articles on the Death Penalty
I. Texas in a world of its own; Amnesty International Website
A. 1972: Furman vs. Georgia: US Supreme Court overturned nation’s capital
statutes due to arbitrary application
B. Texas rewrote laws to get around Furman ruling
C. 1982-2002: 300 executions
D. 2002: executed 33, put 36 on death row
E. 10% of population; 33% of deaths
F. Mental illness
G. Retardation: US Supreme Court: illegal
H. Sleeping lawyer: Calvin Burdine
I. Harris County: 15% of pop., 35% of deaths; 2 states higher
J. Dallas: higher murder rate; ½ as sent to death row
K. Since 1987: seven prisoners released, served 70 years
L. Governor: “system is operating well and fairly”
II. International and federal
A. 111 countries abolitionist in law or practice
B. European Parliament Delegation: “universal repugnance in Europe and
elsewhere…considering restricting investment in the US states that use it”
C. UN Commission: no death penalty for anyone with mental disorder
D. James Coburn: schizophrenia, no health insurance, nowhere to go
E. Mental retardation; international condemnation (5)
F. Child offenders: virtually unknown outside US
G. Vienna Convention on Consular Relations: foreign nationals cannot be
executed outside of their own nation
III. Direct appeal and habeas corpus
A. If not appealed, forfeit the right to judicial review forever
B. Average: 150 pages; Texas cases 54% less than 30 pages
C. Wrong type of claims for habeas review
D. Lawyers with no experience
E. Lawyers on disciplinary probation
F. Inadequately written up, frivolous, didn’t file an intent to appeal on time
G. Until 1995: Texas provided no money for a habeas lawyer; prisoners had
to find someone who would do it for free
H. 1995: appoint competent counsel, appointed lawyers: one whose license
had been suspended, 4 had been disciplined by the bar, 3 prosecutors (not
defense lawyers),
I. “Competent” means continuity of representation not final product [some
states, included effectiveness]
IV. Deterrent?
A. Last 10 years, murder rate down, death penalty up
B. States without the penalty: a larger drop in murders
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C. Texas: 40 deaths (most ever); 16% rise in murders
D. Janet Reno: no evidence of deterrent
E. 1999 study: no evidence that Texas death penalty deters
F. 20.000 homocides/year in US; fewer than 300 sentenced to death; 30 die;
most die of old age
G.
V. Ryan of Illinois: Jan. 11, 2003: emptied state’s death row
A. Commission: no guarantee that innocent people will be spared
B. Save Illinois $1 million/year on lawyer’s fees and incarceration costs
C. Human costs
VI. Race
A. UN Special Rapporteur: race, ethnicity and poverty seem to be key
determinants in who receives the death penalty
B. UN Committee on Elimination of Racial Discrimination: critical
C. 80% of cases had white victims (black and white 50/50 victims)
VII. Distribution
A. If capitol punishment is immoral by nature, doesn’t matter if
discriminatory or capricious distribution
B. If capitol punishment is just, doesn’t matter if discriminatory or capricious
distribution
C. All punishments involve maldistribution; irrelevant to question of whether
the punishment is by nature just
D. Most allegations of discrimination, etc. not innocent people
E. [Is capitol punishment the most just? The only just punishment?]
F. Individuals are guilty or innocent, not races; only relevant question: Does
the person deserve the punishment?
G. Even a lottery among the guilty would not make the punishment unjust
H. Equality is less important than justice
I. Supreme Court has mandated equality, whether it is achieved or not
J. Murderers of whites more likely to be executed; most black murderers
murder blacks, so they fare better, so blacks favored in this respect [honest
blacks screwed twice]
VIII. Miscarriages of Justice
A. 1900-1985: 7000 executed; 35 innocent of capitol crimes
B. All activities involve miscarriages
C. For those who think the death penalty just, miscarriages are offset by the
moral benefits and the usefulness of doing justice
D. For those who think the death penalty unjust, miscarriages irrelevant
IX. Deterrence
A. No conclusive evidence that death is a better deterrent than alternatives
B. “I favor the death penalty as retribution even when it” does not deter
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C. “I believe the death penalty is more feared than imprisonment” because it
is final
D. “Sparing the lives of even a few prospective victims by deterring their
murderers is more important than preserving the lives of convicted
murderers because of the possibility, or even the probability, that
executing them would not deter others.”
E. Penal sanctions are useful in the long run for the formation of the internal
restraints so necessary to control crime.”
F. “The severity and finality of the death penalty is appropriate to the
seriousness and the finality of the murder.”
X. Incidental Issues: Cost, relative suffering, brutalization
A. “Actual monetary costs are trumped by the importance of doing justice.”
B. “a person sentenced to death suffers more than his victim” [?]
C. “Punishment—regardless of the motivation-is not intended to revenge,
offset, or compensate for the victim’s suffering, or to be measured by it.”
D. “Punishment is to vindicate the law and the social order undermined by
the crime.”
E. Becarria: “by killing a murderer, we encourage, endorse, or legitimize
unlawful killing” response: Murder is unlawful and undeserved, execution
is lawful and deserved. “The physical similarities of the punishment to the
crime are irrelevant.”
XI. Justice, Excess, Degradation
A. “Threats and punishments are necessary to deter and deterrence is a
sufficient practical justification for them. Retribution is an independent
moral justification.”
B. “Always excessive” is an article of faith; can’t be corroborated or refuted
C. Everyone has a “right to life” J. Bentham “nonsense on stilts”
D. Discarded in Europe because of abuse by totalitarian regimes
E. Kant and Hegel: execution “affirms [the convict’s] humanity by affirming
his rationality and his responsibility for his actions.”
F. Life imprisonment is more degrading because it deprives of autonomy
G. Self-inflicted degradation: execution is “the social recognition of his
self=degradation
H. “Execution of those who have committed heinous murders may deter only
one murder per year. If it does, it seems quite warranted. It is also the
only fitting retribution for murder I can think of.”
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