Death Penalty Articles

MORE ON GARLAND’S DEATH PENALTY “MYTHS”

Homicide Survivors — 2010-07-27T13:37:00Z

more ON GARLAND’s Death penalty “myths”

Lester Jackson

[references in brackets]

Make no mistake. If the death penalty is “impossible in some jurisdictions,” it is almost impossible everywhere, including “bloodthirsty” Texas. Homicide does not entail anywhere near the same risk for murderers as for victims. This shocking fact is largely unknown: Between 1972 and 2008, there were 723,000 murders [1], more than the combined total of battle deaths in all our wars. [2-p43] As of the end of 2009, this resulted in 1,188 lawful executions (0.165%) [1]. Texas had 446 executions for 66,337 murders (0.67%) [3].
          This is not simply a matter of different state court judges. The abolitionist fish rots from the head down. When a bare 4-3 majority of New York State’s highest court issued its diktat that the state’s death penalty was unconstitutional [1-p42], it purported to rely on then-recent decisions of the U.S. Supreme Court.
          Prof. Garland creates his own myth with the flatly false assertion that, in response to its unpopular Furman fiat, the U.S. Supreme Court “backed down” and “insisted that the death penalty must remain a matter for state lawmakers to decide.” What really happened is that the court, with the aid of a protective media, stealthily engaged in a “boil the frog” abolition strategy that, in contrast to one full stroke, most would hardly notice [4]. Patiently, slowly and with utter arrogance, contempt for democracy and dishonesty, justices decided that if they could not completely abolish capital punishment all at once, they would do it piecemeal. If abolition is not 100%, the above statistics show, it is almost so.
          A perfect example of such a justice is John Paul Stevens. The universally one-sided media portrayal is that of a polite, compassionate, modest moderate who “evolved” on the death penalty. Nothing could be further from the truth. An elitist with a remarkable amalgam of heartless lack of concern for victims and a cornucopia of “compassion” for their brutal murderers, Stevens missed no chance to render the death penalty’s application as “narrow” and difficult as possible, often using blatantly contradictory rationales to impose his abolitionist will upon a pro-death penalty democracy. Those aghast at this characterization can find ample documentation [4].
          Students of capital punishment are well aware that “guaranteed" life without parole is an utter fraud. Not only can murderers serving life sentences appeal repeatedly to seek their release, but they also can escape, be paroled, pardoned by governors, murder fellow inmates and prison guards, and even order murders outside prison; and "mandatory" laws can be and have been legislatively repealed, or judicially nullified by five Supreme Court justices. [2-pp9-10] The death penalty works because executed murderers can never murder again. Tragically, there have been far fewer executions of murderers than avoidable murders of innocent victims by recidivists [1].Those repulsed by the execution of murderers seem to have no room in their “compassionate” hearts for the multiple new victims of already convicted murderers, who must be given more bites at the murder apple. [1] The Supreme Court even has ordered trial judges to mislead juries with an instruction that LWOP can be guaranteed when it never can.
          The media has refused to inform the public about some really outrageous and absurd views expressed by justices over the years. For example:
              (1) Repeated Supreme Court claims of moral superiority of the “independent judgment” of five justices as to whether the penalty is “acceptable”: “The mere fact that the community demands the murderer's life … cannot sustain the death penalty”; it is insufficient “that a challenged punishment be acceptable to contemporary society”; and “public perceptions of standards of decency … are not conclusive.” [2-p36]
              (2) A convicted murderer must be allowed to successfully argue he should not be executed because he only endangers old ladies. [2-p9]
              (3) Rape under threat of death three weeks after giving birth can be unharmful. [2-n265]
              (4) It is a "misnomer" to consider as victims the families (mere “third parties”) of girls brutalized, raped and murdered. [4]
              (5) There is a "constitutional right" to commit punishment-free rape and murder. [4]

references
                  [1] “The Sinister Secret of Abolitionists - Do death penalty opponents really oppose capital punishment?” http://homicidesurvivors.com//2010/03/02/the-sinister-secret-of-abolitionists--do-death-penalty-opponents-really-oppose-capital-punishment/print.aspx
                  [2] “Fact Suppression and the Subversion of Capital Punishment: What Death Penalty Foes on the Supreme Court and in the Media Do Not Want the Public to Know” http://ssrn.com/abstract=1346142
                  [3] “Texas Crime Rates 1960 – 2008” http://www.disastercenter.com/crime/txcrime.htm
                  [4] “The "Moderate Republican" Death Penalty Values of Justice Stevens - Do Tormented Victims Matter?” http://homicidesurvivors.com//2010/05/15/the-moderate-republican-death-penalty-values-of-justice-stevens/print.aspx

The 5 Myths of Prof. David Garland - death penalty

Homicide Survivors — 2010-07-21T13:38:00Z

It is difficult to say if Prof . Garland is just sloppy or if, like many in academia, he is happy to peddle bias in service of a goal, here, an end to execution.

("Five myths about the death penalty", By David Garland, July 18, 2010, www.washingtonpost.com/wp-dyn/content/article/2010/07/16/AR2010071602717.html)

Lets' look at Garland's myths:

1) Garland fails to mention that it is the judges that make the imposition of the death penalty all but impossible in some jurisdictions. Dictatorial judges in New Jersey never allowed an execution. There, the death penalty was repealed. Pennsylvania judges never allow executions other than those whereby the inmates waive appeals. If you appeal a death sentence in Pa, you have a life sentence, even if your death sentence is not overturned. Similar abusive judicial behavior is legendary in California.

The death penalty in Virginia? Inmates are executed in 5-7 years after sentencing, 65% of those sentenced to death have been executed and only 15% of death row cases are overturned on appeal. The national averages for those are 11 years, 13% and 37%, respectively.

The difference is in the judges.

Victim survivors in death penalty cases are knowingly and unnecessarily tortured by such irresponsible and callous judges, as in NJ, Pa and Ca and others, nationwide.

Garland gives the false hope that by replacing the death penalty with a life sentence that we can avoid these problems. All states are, now, looking at ways to release lifers, early, for overcrowding and cost issues.

Instead of the abusive performance of judges in so many death penalty jurisdictions, cases, abuse which should be stopped, those murder victim survivors would then be served a recurring theme of releasing those lifer murderers of their loved ones.

The same legal challenges that have been used for years to restrict death penalty applications, are now being repeated in challenging life sentences. Pro death penalty opponents have been stating that pending course for years and it is now in full swing. Murderers serving life sentences can appeal for life.

2 and 3. Yes, fortunately, American democracy is stronger. Even in Europe, the collection of countries whose governments are most opposed to the death penalty, the majority of their populations do support the death penalty for some crimes (1). Those governments could care less.

It may be the case that a majority of citizens in every country support executions for some crimes, based upon the proposition that such sanction is a morally just and proportionate sanction for the crime(s) committed, the foundation of support for all criminal sanctions.

The insult here is that Garland believes that governments ban the death penalty because they know better, that they are wiser than those whom they govern, similar in fashion to the dictatorial judges who confound the law, as reviewed. In fact, it is simply a product of Garland's bias, with no evidence to support it and a false sense of parental superiority guiding it.

4. Predictably, Garland says "it stretches credulity to think that the death penalty, as administered in the United States today, can be an effective means for deterring murder".

Note, that Garland's hedge is "effective", which he can define in any manner he wishes.

Of course the death penalty deters. All prospects of any negative outcome deter some. There is no exception.

Let's say that only 0.5% of murderers are deterred every year because of deterrence. It is a very small percentage of murders deterred, but huge in terms of lives saved, about 90 innocents saved per year, on average, since 1977, noting an 18,000 murders/yr. average during that time.

Is that effective, enough, for Garland? Probably not. For many against the death penalty, it wouldn't matter if a thousand lives were spared per execution because of deterrence, they would still seek its end.

Of the recent (since 2000) 25 studies finding for deterrence, there is a range of deterrence detected, between 3 and 28 lives spared per execution (2), with an average of about 30 executions per year, since 1977, which equates to about 90-900 innocents spared per year because of deterrence.

Garland states that "66 percent have their death sentences overturned on appeal or post-conviction review. He needs to fact check. It is 37%. (3)

Garland states that "a smaller number -- 139 -- have been exonerated in the past 30 years". Fact checking is definitely not Garland's thing. The 139 exonerated is well known fraud and easily uncovered by anyone who cared to fact check. (4)

5. Of course the death penalty works. Everyone who has been executed has remained dead.

Garland states: "An Indiana study last month showed that capital sentences cost 10 times more than life in prison without parole."

Not surprisingly, Garland didn't fact check that story either. It is about 12% more expensive not the 1000% (10 times) that Garland found. (5)

Garland closes: "Getting past the myths and looking at how the death penalty actually operates is one place to start. "

How would he know?

1) "Death Penalty Support Remains Very High: USA & The World"
http://prodpinnc.blogspot.com/2009/07/death-penalty-polls-support-remains.html

2) 25 recent studies finding for deterrence, Criminal Justice Legal Foundation
http://www.cjlf.org/deathpenalty/DPDeterrence.htm

3) "A Broken Study: A Review of 'A Broken System' "
http://prodpinnc.blogspot.com/2009/10/broken-study-review-of-broken-system.html

4) "The 130 (now 139) death row 'innocents' scam"
http://homicidesurvivors.com/2009/03/04/fact-checking-issues-on-innocence-and-the-death-penalty.aspx

5) Garland was referencing a review that didn't look at all the costs and stated that it didn't include all the costs. With one exception, this one appears to.

See Bachground Information, page 2, Fiscal Impact Statement, Legislative Services Agency,

http://www.in.gov/legislative/bills/2008/PDF/FISCAL/HB1074.004.pdf

Costs per case

$758, 243 for death penalty

$657, 028 for LWOP

However, this excludes the credit of savings for plea bargain to LWOP, which I suspect saves at least $20, 000 per case, solely attributed to having the death penalty.

That would bring the differential down to about $80,000 - the death penalty and LWOP cost amounts are already present valued. or

$738, ooo for death penalty (inclusive of LWOP plea credit cost savings, solely attributable to having the death penalty)

$657, 000 for LWOP

The death penalty is 12% more than LWOP.

David Garland is a professor of law and sociology at New York University. His book "Peculiar Institution: America's Death Penalty in an Age of Abolition" is forthcoming this fall.

Understanding Deterrance

Homicide Survivors — 2010-06-19T04:01:00Z

Understanding deterrence

Dudley Sharp

There are many misconceptions regarding deterrence.

No matter the level of violent crime, be it high or low, legal sanctions deter some from committing crimes( 1).

All prospects of a negative outcome deter some. It is a truism. The death penalty, the most severe of criminal sanctions, is the least likely of all criminal sanctions to violate that truism.

Based upon some recent deterrence studies, even "heat of the moment" murders can be prevented by deterrence (2).

This is not surprising. No matter how excited or enraged, most of us bring ourselves back from that abyss, to a more sensible approach. One reason for that is deterrence, either thougtful or instinctive.

Most criminals do think about things. That is why, before their crimes, the usually choose locations other than police stations to commit their crimes. Criminals nearly always use some form of stealth before and during the crime, to avoid witnesses and to lower the probability of being caught, just as they use such stealth to withdraw after the crime.

We all know this to be true.

Such is based upon a fear of being apprehended. There is no fear of being caught unless there is a fear of sanction. We all know this to be true. Only sanction can put fear into being caught.

Even serial murderers care greatly about avoiding detection and apprehension. Of course, murderers are not deterred from committing all murders, but they, like nearly all criminals, understand sanctions and try to avoid them and are, therefore, deterred from some murders.

No, serial murderers are not deterred from committing murder, but they do tell us that they fear sanction and therefore, we all see their efforts at trying to avoid detection, even to the point that the will not murder under some circumstances, for fear of detection.

Virtually all serial murderers and other murderers tell us that they fear the sanction of execution far more than they fear the sanction of life imprisonment. The evidence is clear, in pre trial, trial and appeals. About 99.9% of death penalty eligible murderers show that they prefer a life sentence, fearing execution more than life.

It is reasonable to conclude that just as murderers fear execution, far more than life imprisonment, that more reasoned folks, those potential murderers, who choose not to murder, also share that universal degree of fears. Murderers, like the rest of us, prefer life over death and fear death more than life.

We do not execute or impose other sanctions based upon deterrence. We must base sanctions on them being a just and appropriate response to the crimes committed, the same foundation of support used for all criminal sanctions.

The reason for sanction is justice. Deterrence is a secondary reason for and a beneficial by-product of all sanctions, inclusive of the death penalty.

Some more corrections.

Executions do not make murderers of us all, any more than incarceration makes all of us kidnappers or the imposition of fines makes us all robbers (3)

If you are amoral or immoral, you can equate executions and murder. However, if you know the moral distinctions between crime and punishment, criminals and their innocent victims, then you cannot equate executions and murder. (3)

Some believe that executions create martyrs. Untrue. It is the living who decide those that shall become martyrs. Those who choose that murderers are martyrs are foul, indeed.

There are obvious moral, factual and legal differences between revenge and retributive justice. In fact, the foundations for creating criminal justice systems was to take revenge out of the system and replace it with a system of justice based in law. (4)

(1) "Death Penalty, Deterrence & Murder Rates: Let's be clear"
http://prodpinnc.blogspot.com/2009/03/death-penalty-deterrence-murder-rates.html

(2) 25 recent studies finding for deterrence, Criminal Justice Legal Foundation
http://www.cjlf.org/deathpenalty/DPDeterrence.htm

(3) "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

(4) "The Death Penalty: Neither Hatred nor Revenge"
http://homicidesurvivors.com/2009/07/20/the-death-penalty-neither-hatred-nor-revenge.aspx

The "Moderate Republican" Death Penalty Values of Justice Stevens

Homicide Survivors — 2010-05-16T05:29:00Z

The "Moderate Republican" Death Penalty Values of Justice Stevens

Do tormented victims matter?

By Lester Jackson Ph.D.

TCS Daily 05, 06 May 2010

http://tcsdaily.com/article.aspx?id=050410A tcsdaily.com/article.aspx?id=050510A

NOTE: Page numbers and footnotes in brackets refer to documentation in the detailed paper downloadable here; those in parentheses refer to all other linked sources.

THE VITAL IMPORTANCE OF A JUSTICE'S VALUES
Retiring Justice John Paul Stevens has long been the object of adulation. In 2005, President Ford said he was prepared for his presidency to be judged "exclusively" upon Stevens' 30-year record. In the dominant media narrative, Stevens is just an old-fashioned and modest conventional Midwestern Republican, as was Ford. If he moved left at all, he is still "in the mainstream." Jeffrey Toobin reverentially suggests he is "the last" moderate Republican on the Court and in the tradition of Harding and Coolidge.

But how many moderate Republicans and, indeed, how many Democrats would agree with his values if the media revealed them? This would be unimportant if judges merely applied the law to case facts. Those familiar with the courts know this carefully cultivated image is a myth. In the guise of applying the law, not all but very many judges impose their personal morality upon society.

Stevens (14) and his colleagues repeatedly have substituted their death penalty values for those duly enacted [36]. In their view, these judicial high priests are morally superior to the rest of democracy's mere mortals. (By contrast, Justice Scalia, often caricatured as undemocratic and the Court's "bad boy," avers (1000-01) that judges do not have (1, 5) superior moral values and should not undemocratically foist them on the rest of us.)

THE CORE VALUE: "COMPASSION" FOR VIOLENT CRIMINALS -- CONTEMPT FOR VICTIMS
Despite the claim that Stevens, selected over Robert Bork, was a conservative who "evolved" on capital punishment, his death penalty values were clear from the outset: murderers and rapists are much more important and deserving of sympathy than their victims, who should not be heard or even noticed. Save the lives of guilty murderers and rapists, even if this assures new and avoidable rapes and murders of innocent victims.

Are those the prevailing values of our society?

Stevens did not always side with violent criminals or join Brennan and Marshall in voting to overturn every death sentence [4, 36]. Appointed after a 35-state reaction against the Court's unpopular 5-4 epiphany that previously upheld existing capital punishment was unconstitutional [29, 37], he employed a more politic - and successful - strategy: patiently pursuing "boil the frog" abolition [37, 43; n283], seizing every chance to achieve his stated "narrowing" goal [n250]. If capital punishment could not be completely abolished, almost completely would suffice [43].

Just six months after assuming office, Stevens co-authored joint opinions upholding three watered down death penalty laws while striking down two strong mandatory versions. Contrary to a Stevens acolyte, it is false that his vote was "essential" to restoring capital punishment. The upholding judgments were 7-2 votes and those nullifying were 5-4. One can only speculate if Stevens would have voted to uphold the three had he two more votes. By often voting with a majority where his vote would make no difference, this recognized master strategist could appear open minded while making his votes count when they mattered. There are very few, if any, 5-4 decisions where Stevens voted to uphold or proceed with a death sentence (i.e., where his vote was decisive). Also, he asserted (173, 182) power to inflict five justices' death penalty values upon everyone else (acceptability to contemporary society not enough; public's standards of decency "not conclusive" [36; n243]). Ever since, whenever at least four other justices joined him (or he them), he has been "narrowing." (That he had their support does not make his values or theirs "moderate.")

Stealthily [43], these justices have virtually abolished capital punishment in two broad ways:

(A) Entire categories of barbarity and barbarians have been declared "death ineligible," e,g.,: "adult" rape [nn98, 265], "child" rape [13-16], recidivists who commit new violence while under life sentence [42; n265], supposedly routine murder [nn32, 288], felony murder [11], alleged retardees [11-13], 17-year-olds who proudly commit premeditated torture and murder [7-8].
(B) The system has been tied in knots [29-31, 48; nn187, 313], making the process costly and lengthy [26], often decades-long [47-50; n16], with repetitive and endless appeals where guilt is not in doubt [3; nn12, 109]; e.g.: (1) it took 8 years to execute Paul Powell after he sent the prosecutor a detailed letter boasting of rape-murder; (2) 36 years after sending his murder victim's mother a tape voicing his enjoyment, Jacob Dougan is still on death row.

DON'T SUGGEST THAT A MURDERED GIRL DESERVES A "CHRISTIAN BURIAL" AT CHRISTMAS!
15 months on the court, Stevens regurgitated a favorite banality of murderers' advocates. He joined a 5-4 majority to possibly free Robert Williams, about whose guilt of murdering 10-year-old Pamela Powers there was no doubt. But he separately objected to the dissenters' "strong language" and endorsement of State "dishonor," adding:

Nothing that we write, no matter how well reasoned or forcefully expressed, can bring back the victim ...The emotional aspects of the case make it difficult to decide dispassionately. [Emphasis added.]

So if we can't help the victim, the least we can do is help the murderer. "Dispassion" means ignore the dead victim (and still living family) and, if a fig leaf can be found, free the murderer to potentially create new victims.

Away from Williams' lawyer, a detective engaged in what five justices labeled an "interrogation (410)," which, upon inspection, turns out to be a statement without a single question mark (392-393). He urged Williams to think about enabling the parents to give their little girl a "Christian burial" at Christmas time. Williams produced the body. When a mere suggestion appealing to a miscreant's conscience is deemed coercion requiring exclusion of critical evidence, we can appreciate the mockery made of protections intended against the rack-and-screw, rubber hose and Star Chamber. Chief Justice Burger objected (417) to this 5-4 "sporting theory of criminal justice."

When the Court later reversed itself, Stevens wrote an angry 2,611-word "concurrence," complaining of "an unusually clear violation of constitutional rights" and excoriating the detective. Justice White responded with 200 words. Rarely has bloviating verbosity been punctured with such trenchant brevity:

... Stevens' remarks are beside the point ... four [justices] ... were of the view that Detective Leaming had done nothing wrong at all, let alone anything unconstitutional. Three of us observed: "... the result in this case seems utterly senseless ..." ... It is ... unjustified ... to say [Leaming] "dispense[d] with the requirements of law," ... He was no doubt acting as many competent police officers would have acted ... in light of the then-existing law. That five Justices later thought he was mistaken does not call for making him out to be a villain or for a lecture on deliberate police misconduct ....

VICTIMS? WHAT VICTIMS?

The Unmentionables. In a 2007 dissent (n1) he took the rare step of reading (36) from the bench, Stevens objected to the court opinion's "irrelevant ... graphic description of the underlying facts" of brutal crimes, "perhaps ... to startle the reader or muster moral support." The whole "graphic description" was 28 words saying Cal Brown had "robbed, raped [and] tortured" two women, with one attempted and one successful murder [1-2]. Clearly, Stevens wanted no mention of the crime at all - there was no "graphic description" of any of the truly horrific "underlying" facts [2-3]. He wanted no reader to suspect the case involved terrified victims who endured excruciating lengthy agony.

Throw the Victims Out of Court. In 1978 and 1982, with Stevens' full support, the court declared that a convicted murderer could introduce any "mitigating" evidence whatsoever to show why he should be kept alive. This included not only the expectable (e.g., unhappy and impoverished childhood), but evidence that a murderer not only had bad parents but even that his mother (2) imbibed alcohol while pregnant (16) with him, he allegedly "got religion"(3) or won a dance contest (n5). (It does not matter that almost no one with a bad childhood commits murder.)

To redress the court-created imbalance in favor of convicted murderers, laws were enacted allowing "victim impact" evidence at sentencing hearings, to "humanize" victims as well as their murderers. In 1987, the court declared these laws unconstitutional, but reversed that decision four years later, to Stevens' vehement consternation.

A major distinction between the "moderate" justice and one who is not is that the former thinks it moral, just and fair to allow, indeed mandate, introduction of any and all evidence to create sympathy for a murderer as a unique individual while at the same time turning the victim into a "faceless stranger (825)." Stevens has never accepted, as valid for sentencing convicted murderers, evidence about victims and all the harm done to them [n27]. Having objected to bare mention of the crime even in Supreme Court opinions, his view (856) is that victim impact evidence "sheds no light on the defendant's ... moral culpability." The "immoderate" disagrees (825). Stevens later declared (7) it "troubling ... to rouse sympathy for the victims and increase jurors' antipathy" for convicted murderers.

Stevens was also "troubled" by the 1943 "targeted assassination," "with so little apparent deliberation or humanitarian consideration," of Admiral Yamamoto, architect of the Pearl Harbor massacre and head of a navy still killing Americans. Stevens says his resolve to "narrow" capital punishment was prompted by thinking of this "particular individual... a highly intelligent officer who had lived in the United States and become friends with American officers...." Nary a word that this "particular individual" had himself "targeted" myriad dead and maimed Pearl Harbor victims "with so little ... humanitarian consideration."

That, then, is the media's idea of a "moderate" Republican: "humanizing" for a very smart man with American friends but not for the thousands whose deaths he meticulously planned; sympathy for vicious murderers with resistance to whatever might create sympathy for their victims.

Victims Who Aren't Victims. Stevens does not consider as victims traumatized, suffering and ruined people. He refers (1) to "so called 'victim impact evidence'" - a "misnomer" since impact is only on "third parties, usually members of the victim's family." Of course, the death is known to a jury that convicts a murderer. But beyond that, there should be no mention of the "particular individual" lost lest there be sympathy for the victim; and the loss suffered by the living doesn't count because they are mere "third parties," not victims too. Stevens was oblivious to the agony of, e.g., the loved ones of Sherry Byrne, whose slaughter "ruined the lives of everyone close to her."

Creating Future Victims. Finally, Stevens (and death penalty subverting colleagues) also appears unconcerned that rescuing convicted murderers causes new and avoidable murders of innocent victims [42-44].

ANY PORT IN A STORM TO SAVE A CAPITAL CONVICT

Solicitude for Suffering Orphans Who Kill Their Parents. Stevens may not fret about torture and terror of rape and murder victims, but he gets positively apoplectic about discomforting condemned murderers. A victim Stevens dismisses as a "third party" noted "the pain [homicide] causes to those left behind. Dealing with the justice system ... is even worse." Thanks to Stevens, et al., this means agonizing multiple trials and appeals, lasting decades. But for Stevens (and Breyer [47-50]) the suffering of "those left behind" [n319] is immaterial - unworthy of minimal lip service or mention [n315]. Instead, the true objects of sympathy must be convicted murderers who, like parent killers seeking mercy as orphans, ask to be spared because they have suffered "most horrible feelings" from the delays they themselves have sought. Stevens conceded the claim was "novel." Unprecedented would be more accurate. Last December, he bemoaned (3) the "dehumanizing ... frightful toll" and "underlying evils of intolerable delay" suffered by Cecil Johnson. Stevens did not divulge that Johnson, who caused a 29-year delay, had brutally murdered three victims, including a 12-year-old. Revealingly, 23 days earlier, Stevens complained of an execution taking place too fast. Justice Thomas observed (2): "the State can never get the timing just right" to satisfy Stevens.

Murderers: the Ones Who Really Suffer. If Stevens objected to any inference of victim suffering drawn from bare mention of a brutal crime, he had no qualms about providing "graphic description" of minimal alleged suffering by condemned brutal killers. In objecting to a 28-word reference to victims, he omitted that he had devoted 1,700 words (61 x 28) to vivid details about execution while saying nothing about the brutality and agony imposed upon victims [19, 18, 2-3, 54; n178]. He anguished about any execution pain, protesting a murderer took "ten minutes and thirty-one seconds to die." But he did not compare this to the hours, days and even months of death by torture inflicted by those whose cause he championed.

"Constitutional Right" to Commit Punishment-Free Brutality. In 1974, serving a life term for rape, murder and attempted murder, Erlich Anthony Coker, escaped. He then raped 16-year-old Elnita Carver, under threat of death, three weeks after giving birth. In 1977, the death penalty for rape was suddenly held unconstitutional. In a plurality opinion, joined by Stevens 18 months into his tenure, the Court asserted: (1) contrary to normally expected harsher sentences for those with worse records, the worst repeat offenders had a constitutional right to commit punishment-free brutality because, for new crimes, the death penalty could not be imposed on those already serving life sentences [n265; 42]; (2) "Mrs. Carver was unharmed" (i.e., rape can be unharmful); (3) the values of a democratic people are rejected if "unacceptable" to five justices; (4) Carver was an "adult woman." 28 years later Stevens joined another opinion holding (14, 9), a victim need be only 16 to be an adult but a vicious premeditated murderer must be 18 to be considered an adult for the purpose of punishment [n265] and reiterating the "acceptability" requirement.

TO RESPECT OR NOT TO RESPECT?
Stevens is an ardent proponent of respect for and deference to state court judges. He is also an equally ardent practitioner of the opposite. At first glance, this might appear inconsistent. It is not. The overarching value is what is best for the convict, however overwhelming the proof of guilt. Any argument will do if it advances that value.

One of his most famous dissents (7), resounding with "confidence in [state judges] that is the true backbone of the rule of law," lambasted the court for alleged "lack of confidence in the impartiality and capacity" of state judges who make "critical decisions." Stevens purports to advocate (16) "minimizing federal intrusion into state criminal proceedings." Just five months ago, he found it (3) "hard to see how the Court is justified in micromanaging the day-to-day business of state tribunals making fact-intensive decisions...."

Based on these statements alone, one would never know just how little confidence Stevens has shown in state judges when opposed to their results. Virtually all decisions he authored or joined slowly abolishing capital punishment rejected state judges' "critical decisions." And he had no trouble "micromanaging" to "narrow" capital punishment with "fact-intensive" decisions.

For four dissenters, Justice White protested: "The Court long ago gave up second-guessing state supreme courts in [such] situations ... [Its] opinion rests on a [dubious] reconstruction of the record the likes of which has rarely, if ever, been performed before in this Court." In another 5-4 case, the dissenters objected: "today's opinion - which considers a fact bound claim of error rejected by every court, state and federal, that previously heard it - is ... wholly unprecedented." To which Stevens replied: "Our duty ... occasionally requires ... a detailed review of the particular facts of a case ...The current popularity of capital punishment makes this ... especially important. ..."

For him, "duty" boils down to this: save the lives of convicted murderers. That is the touchstone for deciding whether to "micromanage," or to "respect" state judges and/or community values.

Stevens has no confidence in state judges who impose death sentences contrary to jury recommendations. Having so often proclaimed superiority of justices' values over the community's in order to overturn and prevent this penalty, he also protests the "absence of any rudder on a judge's free floating power to negate the community's will." Conveniently posing as a community values defender, Stevens says the "most credible justification for the death penalty is its expression of the community's outrage." Yet when the community expresses outrage with a jury death sentence, that should be ignored and disrespected, especially given the "popularity of capital punishment." But when the community (i.e., jury) does not recommend death, the "community's will" must not be negated by judges.

In sum, anything goes to reject the people's values - except when Stevens accepts them.

WHOSE THUMB ON THE SCALES OF JUSTICE?
When he declared capital punishment violated (17) the very constitution that repeatedly authorized it (2), Stevens complained (15-16) of "decisions placing a thumb on the prosecutor's side of the scales." One such decision admitted victim impact evidence. For Stevens, the scales are balanced by allowing any and all sympathy for a convicted murderer but none at all for his victims. Just who seeks to have a thumb on the scales of justice?

Lest there be any doubt, when state judges wrongly interpret federal law, Stevens wants U.S. Supreme Court corrections to be limited to errors benefitting the prosecution, barring review of those aiding guilty defendants. As Justice O'Connor put it, he takes a "the novel view" (n8): his court should "respect" only state court federal law interpretations favoring defendants. Four years ago, he objected (2) to reviewing a state high court ruling that "had granted [a convicted murderer] more protection ... than the Federal Constitution required. A policy of judicial restraint would allow the highest court of the State to be the final decisionmaker in a case of this kind." However, to rescue a brutal convicted murderer (3), Stevens insisted upon (14) "federal courts' [responsibility] ... to interpret federal law ... independent from the ... States...." Let there be no restraint in the "narrowing" of capital punishment.

Justice Scalia says it is Stevens who wants a "thumb on the scales" (4): "When a criminal defendant loses a questionable constitutional point, we may grant review; when the State loses, we must deny it."

A "MODEST" JUSTICE
It should surprise no one that a justice, whose "modesty" presumes a right to review the "acceptability" of his fellow citizens' values, is not bashful about proclaiming, without evidence, that deceased luminaries would support his "conservative" Coolidge-Harding positions. For example, he has claimed the backing of late Chief Justices Burger and Rehnquist, as well as Alexander Hamilton.

In 2007 (6), Stevens expressed his "firm conviction" that Burger and Rehnquist would have agreed with him. But when they were alive and shortly after joining the court, he implicitly accused them of unfairness to child murderer Williams by endorsing "dishonor," "an unusually clear [lawless] violation of constitutional rights" and failing to decide "dispassionately." Years later, Stevens also implicitly accused (7) Rehnquist of encouraging cynicism about and undermining confidence in the rule of law and judicial impartiality, as well as authoring a "sad day for a great institution."

Stevens confidently asserted that Hamilton would have agreed with a bare majority [7-8] that a 17½ year-old, who planned, enjoyed and boasted of the barbaric torture and murder of an innocent woman, could not possibly be mature enough to understand his crime and that the Constitution Hamilton defended required that such a creature be allowed to "attain a mature understanding of his humanity" [53]. Stevens conveniently omitted that, before age 17, Hamilton ran (31-33) a complex export-import business and published poems, articles and essays - and when just 14, he avowed (30-31) a willingness to "risk my life tho' not my character"!

Stevens has provided repeated illustrations of attorney Mark Pulliam's observation that "no argument is too preposterous for a lawyer to make with a straight face" [47].

CONCLUSION: THE REPLACEMENT
It is critical to be clear about what the dominant media and posturing politicians mean when they tout Stevens' replacement as "moderate" and "in the mainstream." Elena Kagan should be closely questioned, not in arcane legalistic terms of interest only to lawyers, but using concrete examples likely to attract the public's attention.

A justice labeled "moderate" by the media is one who protects murderers whose guilt is not in question, and gives the back of his/her hand to victims - torturing them with endless litigation to save such murderers. At the very least, any alleged moderate should be asked whether the Constitution proscribes criminal penalties approved by the people but "unacceptable" to the values of five justices [n 243].

Senator Leahy wants a Stevens clone "who approaches every case with an open mind and a commitment to fairness." This can only be greeted with astonishment by the millions who care about barbaric crime and its victims, who Stevens, to protect their tormenters, would exclude from bare mention in Supreme Court opinions and consideration at sentencing trials.

Does our society need or favor more "open minded" justices for whom victims should be out-of-sight-out-of-mind while convicted murderers touch the very depths of their souls?

DEAD WRONG: NJ Death Penalty Study Commission

Homicide Survivors — 2010-04-12T02:04:00Z

DEAD WRONG: NJ Death Penalty Study Commission
by Dudley Sharp, Justice Matters, contact info below, 2007

Summary

The New Jersey Death Penalty Commission made significant errors within their findings. The evidence, contrary to the Commissions findings, was so easy to obtain that it appears either willful ignorance or deception guided their report.

A brief review.

FORMAT: Below, are the 7 points made within the New Jersey Death Penalty Study Commission Report, January, 2007. The RUBUTTAL presents the obvious points avoided by the Commission and discussed by this author, a death penalty expert.

I was invited to be a presenter, before the NJDPSC, but my time didn’t fit their schedule.

1) There is no compelling evidence that the New Jersey death penalty rationally serves a legitimate penological intent.

REBUTTAL:

- The reason that 81% of Americans found that Timothy McVeigh should be executed was justice - the most profound concept in criminal justice, as in many other aspects of life. It is the same reason that New Jersey citizens, 12 jurors, put all those on death row.

- Although the Commission and the NJ Supreme Court both attempt to discount deterrence, logically, they cannot.

First, all prospects for a negative outcome deter some. This is not, logically or historically rebutted. It cannot be. Secondly, those studies which don’t find for deterrence, do not say that it doesn’t exist, only that their study didn’t find it. Those studies which find for deterrence did. 16 recent studies do.

- The Commission had ample opportunity and, more importantly, the responsibility to read and contact the authors of those many studies which have, recently, found for deterrence. There seems to be no evidence that they did so. On such an important factor as saving innocent lives, why didn’t they? The testimony before the Commission, critical of those studies, would not withstand a review by the authors of those studies. That should be an important issue that the Commission should have investigated, but did not.

- LIFE WITHOU PAROLE: The Commission considered the risk of innocents executed and concluded that it wasn’t worth the risk and that a life sentence would serve sufficiently without that risk to innocents.

Again, the Commission avoided both fact and reason. The risk to innocents is greater with a life sentence than with the death penalty.

First, we all know that living murderers, in prison, after escape or after improper release, are much more likely to harm and murder, again, than are executed murderers - an obvious truism ignored by the Commission.

Secondly, no knowledgeable and honest party questions that the death penalty has the most extensive due process protections in US criminal law. Therefore, it is logically conclusive, that actual innocents are more likely to be sentenced to life imprisonment and more likely to die in prison serving under that sentence, that it is that an actual innocent will be executed.

Thirdly, there has been a recent explosion of studies finding for death penalty deterrence. The criticism of those studies has, itself, been rebutted.

- Therefore, in choosing a life without parole and calling for the end of the death penalty, the Commission has made the choice to put more innocents at risk - the opposite of their stated rationale.

2) The costs of the death penalty are greater than the costs of life in prison without parole, but it is not possible to measure these costs with any degree of precision.

REBUTTAL:

- The NJ legislature’s own cost review found that the cost differential was indeterminate. However, based upon their exclusions, LWOP may very well be more expensive.

- For the amount of time and resources allegedly expended by the Commission, this section of their review was unconscionable in its lack of responsibility to the Commission’s directive.

- The Commission concludes that the current system in New Jersey is very expensive, without noting the obvious ways in which those issues can be addressed to lessen those costs. Why?

One example, they find that proportionality review cost $93, 000 per case. Why didn’t the Commission recommend doing away with proportionality review? There is no reason, legally, to have it and it has been a disaster, cost wise, with no benefit.

Secondly, the Commission states: “Nevertheless, consistent with the Commission’s findings, recent studies in states such as Tennessee, Kansas, Indiana, Florida and North Carolina have all concluded that the costs associated with death penalty cases are significantly higher than those associated with life without parole cases. These studies can be accessed through the Death Penalty Information Center.” (Report, page 33).

On many topics the Death Penalty Information Center has been one of the most deceptive or one sided anti death penalty groups in the country. While it is not surprising that the Commission would give them as a reference, multiple times, it doesn’t speak well of the Commission.

Did the Commission read any of the studies referenced by the DPIC? It appears doubtful, or the Commission would not have referenced them.

For example, let’s look at the North Carolina (Duke University) study. That cost study compared the cost of only a twenty year “life sentence” to the death penalty. Based upon that study, a true life without parole sentence would be more costly than the death penalty. Somehow the Commission missed that rather important fact.

These types of irresponsible and misleading references by the Commission do nothing to inspire any confidence in their findings, but do reinforce the opinion that their conclusions were predetermined.

Please see “Cost Comparisons: Death Penalty Cases Vs Equivalent Life Sentence Cases”, to follow.

3) There is increasing evidence that the death penalty is inconsistent with evolving standards of decency.

REBUTTAL:

The Commission uses several references to prove their point. None of them succeeded.

- The first was based upon polling in New Jersey. The data showed strong support (78%) for executions in NJ, except when asking those polled to choose between a life sentence or a death sentence, for which life gets greater support. The major problem with this long standing and misleading polling question is that it has nothing to do with the legal reality of sentencing. Secondly, that poll shows broad support for BOTH sanctions, not a call to abandon either. The Commission, somehow, overlooked that obvious point.

Jurors have the choice of both sentences in states with the death penalty and life without parole. Therefore, a proper polling question for NJ would be,

A) should we eliminate the death penalty and ONLY have life without parole? or
should we give jurors the OPTION of choosing life or death in capital murder cases?

Based upon other polls, I suspect B would be the resounding winner of this poll in NJ.

We know support is 78% in NJ, for crimes similar to those on NJ death row.

Secondly, the Commissions polling speaker avoided the most obvious and reliable polling question on this topic - asking about the punishment for a specific crime, just as jurors have to decide.

NOTE: 78% of NJ citizens support the death penalty for crimes such as those on NJ’s death row. (Dec., 2007)

81% of Americans supported the execution of Timothy McVeigh. 85% of Connecticut citizens polled supported the execution of serial rapist/murderer Michael Ross.

Thirdly, poll New Jersey citizens with the following questions. Is life without parole or the death penalty the most appropriate punishment for those who rape and murder children? Or should NJ remove the death penalty as a jury option for those who rape and murder children?

- Two religious speakers spoke against execution. Both are easily rebutted by religious scholars holding different views.

- Another alleged example of this evolving standard is based upon the fact there has been a reduction in death sentences. Such reduction is easily explained by a number of factors, other than some imagined “evolving standard of decency”.

Murders have dropped some 40%, capital murders have likely dropped by even a greater number, based upon other factors. This, by itself, explains the overwhelming percentage of the drop in death sentences.

In addition, many prosecutors, such as those in NJ, know that their courts will not allow executions, leading to prosecutorial frustration as a contributing factor in any reduction - not an evolving standard of decency, but an evolving and increasing frustration.

Please review: “Why the reduction in death sentences?”, to follow.

4) The available data do not support a finding of invidious racial bias in the application of the death penalty in New Jersey.

CLARIFICATION:

In fact, there is no data to support any racial bias, invidious or otherwise. The Commission must have read the series of NJ studies.

5) Abolition of the death penalty will eliminate the risk of disproportionality in capital sentencing.

REBUTTAL:

Yes, Commission, and the abolition of all criminal sentences will eliminate the risk of disproportionality in all sentences, as well. This is hardly a rational reason to get rid of any sentence. Get rid of the expensive and unnecessary proportionality review.

6) The penological interest in executing a small number of persons guilty of murder is not sufficiently compelling to justify the risk of making an irreversible error.

REBUTTAL:

- The risk to innocents is greater with life without parole than with the death penalty. See (1), above LIFE WITHOUT PAROLE.

7) The alternative of Life imprisonment in a maximum security institution without the possibility of parole would sufficiently ensure public safety and address other legitimate social and penological interests, including the interests of the families of murder victims.

REBUTTAL:

This Commission statement is quite simply, false.

- Life imprisonment puts more innocents at risk than does the death penalty.

- Justice, just punishment, retribution and/or saving innocent lives, among others, are all legitimate social and penological interests all served by the death penalty.

- 81% of Americans supported the execution of Timothy McVeigh. 85% of Connecticut citizens polled supported the execution of serial, rapist/murderer Michael Ross.

The overwhelming majority of those polled did not have family members murdered.

Is the Commission trying to tell us that a poll of NJ murder victim survivors would show a majority opposed to the death penalty? Of course not, that would be as absurd as the Commissions conclusions in this section.

Conclusion:

Almost without exception, The Commission accepted the standard anti death penalty position, without presenting the easily accessible rebuttal to that position.

Enough said.

———————–

NJ Death Penalty Study Commission

It is alleged that the Commission had fair hearings, with both sides adequately presented.

Alleged fair hearings mean nothing, if decisions are predetermined, as this one was.

11 of the 13 committee members were either known or leaning anti death penalty. The contempt for and discounting of pro death penalty positions in both the hearings and final report confirm that.

All the prosecutors on the Commission were up for reappointment - by the staunchly anti death penalty Governor. Would any of them sacrifice their livelihood to fight for the death penalty? Of course not and they did not.

One committee member - one - was confirmable as pro death penalty.

Most, if not all, of Committee Chairman Rev. Howard’s previous affiliations were anti death penalty.

Rev. Howard’s fairness is best shown by the Commission’s final report, which was laughable in its exclusion of pro death penalty positions, positions which would have either overwhelmed or neutralized the anti death penalty, predetermined conclusions of the panel, had those pro death penalty positions been given a fair showing in that report - which they weren’t.

The Commission hearings and final report were, as all show trials, a farce.

ALSO SEE

1) "But Did They Listen? The New Jersey Death Penalty Commission's Exercise in Abolitionism: A Detailed Reply", Robert Blecker, New York Law School, July 23, 2007
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1002434

2) Statement of Kent Scheidegger, Legal Director, Criminal Justice Legal Foundation
Before the New Jersey Death Penalty Study Commission, October 24, 2006
http://www.cjlf.org/files/NJDPTestimony.pdf

Dudley Sharp, Justice Matters
e-mail sharpjfa@aol.com, 713-622-5491,
Houston, Texas

Mr. Sharp has appeared on ABC, CBS, CNN, C-Span, FOX, NBC, NPR, PBS, BBC and many other TV and radio networks, on such programs as Nightline, The News Hour with Jim Lehrer, The O’Reilly Factor, etc., has been quoted in newspapers throughout the world and is a published author.

A former opponent of capital punishment, he has written and granted interviews about, testified on and debated the subject of the death penalty, extensively and internationally.

PRESS RELEASE: “EXONERATED” FORMER DEATH ROW INMATE RECONVICTED

Homicide Survivors — 2010-04-09T21:14:00Z

forwarded by Dudley Sharp

The Innocence List has been, conclusively, debunked for many years, without contradiction. Dudley Sharp

CJLF Criminal Justice Legal Foundation	10-12 PRESS RELEASE
FOR IMMEDIATE RELEASE April 8, 2010	Michael Rushford, President (916) 446-0345
“EXONERATED” FORMER DEATH ROW INMATE RECONVICTED So-called “Innocence List” Conclusively Debunked Former death row inmate Timothy Hennis, listed as “exonerated” on the “innocence list” maintained by the Death Penalty Information Center, was found guilty of three counts of premeditated murder by a military jury today. “This is the smoking gun that proves what we have been saying for years,” said Kent Scheidegger, Legal Director of the Criminal Justice Legal Foundation. “The so-called innocence list is nothing of the sort.” For years, the “innocence list” has been cited by opponents of the death penalty as a list of people once sentenced to death who were actually innocent of the crimes. Death penalty supporters have long maintained that this claim is false. Proof of actual innocence is not required to get on the list. In 2006, Justice Antonin Scalia challenged the list in an opinion in Kansas v. Marsh. In Hennis’s case, his first conviction was reversed on appeal, and on retrial in 1989 the jury decided that the evidence available at that time was not sufficient to establish guilt beyond a reasonable doubt. However, there is a wide difference between doubt of guilt and proof of innocence. In most cases, an acquittal prevents a second trial. However, because Hennis was in the military at the time and the first trial had been held in North Carolina state court, the double jeopardy rule did not preclude a military trial. In 2006, more advanced DNA technology tied Hennis to the rape and murder of Kathryn Eastburn and the murder of her two daughters, 5-year-old Kara and 3-year-old Erin. “We have known all along that the ‘innocence list’ claim was a lie,” said Scheidegger. “Now we have official proof, beyond a reasonable doubt.” CJLF Legal Director Kent Scheidegger is available for comment at (916) 446-0345. The Criminal Justice Legal Foundation has helped win five United States Supreme Court decisions during the Court’s current term. Criminal Justice Legal Foundation 2131 L Street, Sacramento, CA 95816 * P.O. Box 1199, Sacramento, CA 95812 (916) 446-0345 * Web page: http://www.cjlf.org

Death Penalty Cost Studies: Saving Costs over LWOP

Homicide Survivors — 2010-03-21T14:50:00Z

As a general rule, the death penalty cost studies are worthless. Those that purport to compare life without parole costs to death penalty costs are, in most cases, comparing apples to kangaroos not apples to apples.

There is no reason that the death penalty, in general, should be more expensive than LWOP and, in many, if not most cases, the death penalty should be less expensive.

1) Virginia: How the death penalty will save money over life without parole (LWOP).

Virginia executes in 5-7 years. 65% of those sentenced to death have been executed. Only 15% of their death penalty cases are overturned. (Source Virginia AG)

With the high costs of long term imprisonment, such a system, as Virginia's, a true life sentence will be more expensive than such a death penalty protocol. All states could duplicate this protocol, with the major exception that you can't transfer Virginia jurisdiction judges to other states.

2) Texas cost study - I have told the Dallas Morning News, for many years, to stop using their totally inaccurate cost review. They still use it.

They found that it costs $2.3 million per average death penalty case (for 5 cases), more than 3 times more expensive than a $750,000 life sentence. (C. Hoppe, "Executions Cost Texas Millions," The Dallas Morning News, March 8, 1992, 1A)

The death penalty costs are for pre trial, trial and appeals and incarceration. Yet, the life cost is only for confinement for life. Big problem.

In addition, an academic review, by a neutral academic, found that the verifiable costs in the DMN article actually found the death penalty was cheaper.

p154-156 http://books.google.com/books?id=IQJtCjhdGeUC&pg=PA154&lpg=PA154&ots=Mtji7SSu0v&dq=cost+%22death+penalty%22+Dallas+morning+news%22&ie=ISO-8859-1&output=html

3) Duke (North Carolina) Death Penalty Cost Study: Let's be honest
http://prodpinnc.blogspot.com/2009/06/duke-north-carolina-death-penalty-cost.html

Almost exclusively, this study is presented, by media and anti death penalty folks, as the best example of the death penalty being much more expensive than a life sentence. Fact checking reveals just the opposite.

This study has been so distorted in the media and within anti death penalty literature that it really should be mandatory teaching in journalism schools as a fact checking disaster. I cannot find one example where the authors of the study ever corrected these distortions, thereby reflecting poorly on them, as well.

Prof. Cook, one of the authors, has a new study out, which claims an $11 million savings for NC, by ending the death penalty. I haven't read it yet. Based upon the previous study, maybe it really finds the death penalty saves money.

4) Cost Savings: The Death Penalty
http://homicidesurvivors.com/2009/05/07/cost-savings-the-death-penalty.aspx

A general review of some of the study problems and corrections for them.

5) Maryland cost study: A reply

See Dudley Sharp comments to article, after article at
http://www.walletpop.com/blog/2009/03/09/death-penalty-costs-more-than-life-in-prison/

6) Colorado

Cost, Deception & the Death Penalty: The Colorado Experience
http://homicidesurvivors.com/2009/05/28/cost-deception--the-death-penalty-the-colorado-experience.aspx

7) New Jersey - See my reply to the official state review of costs, in the reply section, at bottom

     December 24, 2007 6:50 AM
    dudleysharp said...
    http://hallnj.blogspot.com/2007/12/case-for-repealing-death-penalty.html

8) Kansas - The study most quoted found that death penalty cases cost 70%, or about $500,000 more per median case cost than for the equivalent non death penalty murder case, but, the foundation was this: " . . .there was nothing we could look at to verify the accuracy of any of the data assembled for this report." (page 2). "Actual cost figures for death penalty and non death penalty cases in Kansas don't exist." (page 10). On pages 29 and 31 the study discussed methods of saving money. Again, please refer to "Cost Savings: The Death Penalty". ("Performance Office Report: Costs Incurred for Death penalty Cases", A K-Goal Audit of the Department of Corrections, by the Legislative Division of Post Audit - A Report to the Legislative Post Audit Committee, December 2003)

9) California - There are a few cost study numbers that are quoted, based, exclusively on analysis by anti death penalty folks. California considered a thorough, objective study by RAND, below, but rejected it. It was too expensive!

"Investigating the Costs of the Death Penalty in California: Insights for Future Data Collection in California, RAND Corp., 2/2008
http://www.rand.org/pubs/testimonies/2008/RAND_CT300.pdf

Sincerely, Dudley Sharp
e-mail sharpjfa@aol.com, 713-622-5491,
Houston, Texas

Mr. Sharp has appeared on ABC, BBC, CBS, CNN, C-SPAN, FOX, NBC, NPR, PBS , VOA and many other TV and radio networks, on such programs as Nightline, The News Hour with Jim Lehrer, The O'Reilly Factor, etc., has been quoted in newspapers throughout the world and is a published author.

A former opponent of capital punishment, he has written and granted interviews about, testified on and debated the subject of the death penalty, extensively and internationally.

Pro death penalty sites

essays   http://homicidesurvivors.com/categories/Death%20Penalty.aspx
               http://prodpinNC.blogspot.com/

http://www.cjlf.org/deathpenalty/DPinformation.htm
http://www.clarkprosecutor.org/html/links/dplinks.htm
http://www.coastda.com/archives.html
http://www.lexingtonprosecutor.com/death_penalty_debate.htm
http://www.prodeathpenalty.com/
http://yesdeathpenalty.googlepages.com/home2    (Sweden)
http://www.wesleylowe.com/cp.html

Judge Fine gets caught with his pants down

Homicide Survivors — 2010-03-10T20:50:00Z

Judge Fine gets caught with his pants down
Dudley Sharp, contact info below
3/10/10

Judge Fine is not truly backing off or rescinding his finding that the Texas death penalty statute is unconstitutional. It is a tactical withdrawal to cover his ass.

I suspect it won't matter what happens in the April 27th hearing. Judge Fine will repeat his original finding.

Judge Fine realized that he looked like a fool and/or an idiot because he was wrong on the facts and the law in his first two episodes. (1)

The judge, now, says ". . . he still wants more information on whether the state’s death penalty statute is unconstitutional because it allows for the possible execution of an innocent person." Thus, the hearing.

To repeat, Judge Fine there is no law or opinion that finds that due process must be infallible. Since the first incarcerations and the first executions, man has always known that there was always the "possibility" of actual innocents being imprisoned and/or executed and that, in both cases, due process may not reveal that actual innocence prior to their deaths, or ever.

In other words, the judge has already made up his mind that due process must be infallible and no matter what occurs in the hearing, he has already decided to support his original ruling, not matter how fallible his understanding of the facts and the law.

That is also why Judge Fine is also in error in saying that he is not challenging the constitutionality of the death penalty, but instead that the statute is unconstitutional. No judge, what you are doing, as if you don't know it, is challenging the constitutionality of due process that is not perfect.

The April hearing will welcome in a bunch of anti death penalty legal specialists, that will try to cover his rear.

It matters not a wit what the state/prosecution side will say to contradict the anti death penalty cabal, inclusive of the judge.

Judge Fine will repeat his original finding and then he will be overturned. He just wants the show, first.

The kings new clothes.

1) a) "Judge Fine was injudicious and irresponsible", Dudley Sharp, 3/5/10 and
b) "Judge's Clarification Puts Him in More Hot Water: Texas Death Penalty Ruled Unconstitutional", Dudley Sharp, 3/7/10

Sincerely, Dudley Sharp
e-mail sharpjfa@aol.com, 713-622-5491,
Houston, Texas

Mr. Sharp has appeared on ABC, BBC, CBS, CNN, C-SPAN, FOX, NBC, NPR, PBS , VOA and many other TV and radio networks, on such programs as Nightline, The News Hour with Jim Lehrer, The O'Reilly Factor, etc., has been quoted in newspapers throughout the world and is a published author.

A former opponent of capital punishment, he has written and granted interviews about, testified on and debated the subject of the death penalty, extensively and internationally.

Judge's Clarification Puts Him in More Hot Water: Texas Death Penalty Ruled Unconstitutional

Homicide Survivors — 2010-03-09T02:07:00Z

"Judge's Clarification Puts Him in More Hot Water: Texas Death Penalty Ruled Unconstitutional" (1)

Dudley Sharp, contact info below

3/7/10

The judge clarifies that his decision is " . . . limited only to the due process claim that 37071 has resulted in the execution of innocent people and/or has the potential to result in the execution of innocent persons". (1)

As such potential has existed since the beginning of executions, it is curious that the judge has made this ruling when (1) the probability of such an event occurring is now lower than at any other time in history, (2) the judge cannot point to a case whereby an innocent has been executed in the modern US death penalty era, post Gregg v Georgia, and (3) the judge can cite no precedent wherein perfection is required in the implementation of due process.

Judge Fine claims that this case is one of first impression, whereby he can find no precedent to rely upon. I agree with the judge, that judges should be gatekeepers. However, the "first impression" comment makes him the gatekeeper to Alice in Wonderland's rabbit hole, wherein he is welcoming us all. Some of us will refuse.

The judge states: "We execute innocent people. This is supported by the exoneration of individuals off of America's death rows. I repeat, again, that the vast majority of those cases involve DNA evidence."

After, again, not fact checking, the judge has repeated his earlier error, by again using the wrong 200 released number from the Innocence Project, which is in reference to cases IN THE ENTIRE PRISON SYSTEM - NOT JUST DEATH ROW - whereby prisoners were released because of DNA exclusion.

The real number is 251 (2), of which 9-10 represent inmates released from death row (3) , or 4% - hardly a vast majority.

In reality, the number of actual innocents released from death row is closer to 25 (4), of which the 9-10 make up 40% of those so identified and released, also not a vast majority.

Furthermore, evidence of releasing innocents from death row is only evidence of releasing innocents from death row. It is not evidence of executing innocents, for which Judge Fine offers not one case.

Well, predictably, he offers one.

Judge Fine "cites" a case from Travis County, with Judge Charley Baird presiding, whereby " . . . the deceased was in fact innocent and, thereafter, executed by the state of Texas."

This is the case of Tim Cole, who died in prison, innocent of the rape he was found guilt of and imprisoned for. This was not a death penalty case. Besides getting all of the facts wrong, Judge Fine appears to have made the case (for himself) that we can no longer incarcerate people because it denies their due process rights, because of the probability that actual innocents die in prior to due process causing their release.

Is Judge Fine this bad? Well, yes, he is.

I agree with Judge Fine that innocents have been executed, It doesn't seem likely it has occurred in the modern era in the US. In fact, the death penalty offers greater protection for innocents than does its alternative, life without parole (5). Given such a reality, possibly Judge Fine's next ruling will be that all incarcerations violate due process, as well. There is, after all, always the potential that an actual innocent incarcerated will die, prior to them being discovered and released by due process.

There may even be the potential for Judge Fine to recognize the importance of both the facts and the law.

(1) Raw Video "Judge Fine's clarification on Ruling", ABCNews, Channel 13 TV, Houston,

http://abclocal.go.com/ktrk/video?id=7314442

(2) "Innocence Project Case Profiles", The Innocence Project,

http://www.innocenceproject.org/know/

(3) "The Innocent and the Death Penalty", Innocence Project,

http://www.innocenceproject.org/Content/1857.php

NOTE for fact checking. It appears that there are 9-10 inmates removed from death row because of DNA exclusion. An additional 7-8 were released from prison because of DNA exclusion, in cases where those inmates were once on death row. It appears 17 is a solid number for inmates released because of DNA exclusion, cases which were, at sometime, all on death row. NOTE ALSO that there may be some challenge to actual innocence in some of these cases.

(4) The 130 (now 139) death row "innocents" scam
http://homicidesurvivors.com/2009/03/04/fact-checking-issues-on-innocence-and-the-death-penalty.aspx

(5) "The Death Penalty: More Protection for Innocents"
http://homicidesurvivors.com/2009/07/05/the-death-penalty-more-protection-for-innocents.aspx

Some additional references

"The Innocent Executed: Deception & Death Penalty Opponents"
http://homicidesurvivors.com/2009/10/08/the-innocent-executed-deception--death-penalty-opponents--draft.aspx

"A Death Penalty Red Herring: The Inanity and Hypocrisy of Perfection", Lester Jackson Ph.D.,
http://www.tcsdaily.com/article.aspx?id=102909A

"Cameron Todd Willingham: Another Media Meltdown", A Collection of Articles
http://homicidesurvivors.com/categories/Cameron%20Todd%20Willingham.aspx