The Supreme Court Recognizes Victims' Rights in Death Penalty Cases

The Court acknowledges that crime victims and their families have important interests in the timely enforcement of capital sentences -- and encourages lower courts to prevent "dilatory" tactics.

|The Volokh Conspiracy |

Today the Supreme Court made an important statement about crime victims' rights in capital cases. In Bucklew v. Precythe, the Court recognized the harmful effects of delays in capital cases on victims' families and called on lower courts to prevent dilatory tactics. The Court's statement extends beyond the narrow issues in the case and may signal that the Court is willing to take steps to reduce the unjustifiable delays that plague many capital cases.

I have previously blogged about the case of Russell Bucklew, who murdered Michael Sanders and was sentenced to death more than two decades ago in Missouri. Mr. Bucklew's latest legal argument against his death sentence was an "as applied" challenge to Missouri's method of executing him (lethal injection). After the Supreme Court granted Bucklew's petition for review, I joined counsel of record Allyson Ho and several of her colleagues at Gibson, Dunn & Crutcher in filing an amicus brief on behalf of Michael Sanders' sister and Arizona Voice for Crime Victims. Our brief urged the Court to reject Bucklew's challenge and end more than two decades of litigation, noting the significant effect that such delays have on victims' families.

Today the Supreme Court rejected Bucklew's claims, echoing some of the points that we had made. The Court first ruled 5-4 that Bucklew had not made the case that, because of his unusual medical conditions, Missouri's lethal injection protocol is unconstitutional as applied to him. But in reading through the Court's opinion, I was pleased to see the Court's concluding section discussing the interests of crime victims' and their families, acknowledging how they are harmed by unjustifiable delays and encouraging lower courts to resolve challenges to lawfully issued sentences "fairly and expeditiously":

"Both the State and the victims of crime have an important interest in the timely enforcement of a sentence." Hill, 547 U. S., at 584. Those interests have been frustrated in this case. Mr. Bucklew committed his crimes more than two decades ago. He exhausted his appeals and separate state and federal habeas challenges more than a decade ago. Yet since then he has managed to secure delay through lawsuit after lawsuit. He filed his current challenge just days before his scheduled execution. That suit has now carried on for five years and yielded two appeals to the Eighth Circuit, two 11th-hour stays of execution, and plenary consideration in this Court. And despite all this, his suit in the end amounts to little more than an attack on settled precedent, lacking enough evidence even to survive summary judgment—and on not just one but many essential legal elements set forth in our case law and required by the Constitution's original meaning.

The people of Missouri, the surviving victims of Mr. Bucklew's crimes, and others like them deserve better. Even the principal dissent acknowledges that "the long delays that now typically occur between the time an offender is sentenced to death and his execution" are "excessive." Post, at 16. The answer is not, as the dissent incongruously suggests, to reward those who interpose delay with a decree ending capital punishment by judicial fiat. Post, at 18. Under our Constitution, the question of capital punishment belongs to the people and their representatives, not the courts, to resolve. The proper role of courts is to ensure that method-of-execution challenges to lawfully issued sentences are resolved fairly and expeditiously. Courts should police carefully against attempts to use such challenges as tools to interpose unjustified delay.

Last-minute stays should be the extreme exception, not the norm, and "the last-minute nature of an application" that "could have been brought" earlier, or "an applicant's attempt at manipulation," "may be grounds for denial of a stay." Hill, 547 U. S., at 584 (internal quotation marks omitted). So, for example, we have vacated a stay entered by a lower court as an abuse of discretion where the inmate waited to bring an available claim until just 10 days before his scheduled execution for a murder he had committed 24 years earlier. See Dunn v. Ray, 586 U. S. ___ (2019). If litigation is allowed to proceed, federal courts "can and should" protect settled state judgments from "undue interference" by invoking their "equitable powers" to dismiss or curtail suits that are pursued in a "dilatory" fashion or based on "speculative" theories.

Bucklew's meritless challenge has now been rejected. Hopefully the Supreme Court's guidance to lower courts on preventing "dilatory" tactics will help to reduce unjustified delays in capital (and other) cases.

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98 responses to “The Supreme Court Recognizes Victims' Rights in Death Penalty Cases

  1. The government can’t kill people fast enough for right-wingers.

    Mostly, I figure, because they want to avoid the prospect that liberal-libertarian do-gooders might arrange exonerations.

    Carry on, faux libertarian clingers. So far as your betters permit, anyway.

    1. Twenty years is not ‘fast enough, nimrod. When the person murdered is one of your chidren, get back to us.

      1. Only those who have experienced unfathomable pain should be allowed to make public policy!

        1. Twenty years “is” quite a long time. Is there any other situation that has that large a gap between the judgement and the final verdict?

          1. Not my point at all. The appeal to emotion when it comes to policymaking is bad whichever side does it. The argument that only the emotionally compromised can make the right policy decision is outcome-oriented sophistry.

            As to your concern, civil stuff getting a judgement out of the losing party can take ages.

            But of course your question is badly framed, as it puts the death penalty on the same stage as any other situation, which is clearly not true for loads of reasons.

      2. Why, JonFrum, do bigoted right-wingers like you incessantly question the government’s credibility, motives, and performance — with respect to everything from school lunches to criminal investigations and health care to food safety — but suddenly perceive (or at least claim) that government to be trustworthy, well-meaning, and skilled when it comes to killing people, especially black people and poor people?

        Carry on, clingers. We need someone to be on the wrong side of the culture war.

        1. Why is it that compassionate progressives okay with killing innocent babies

          Why do the liberals cry insist a constitution right to ensure pain free executions – but object providing innocent babies with pain killers prior to their murder.

          1. If you have information about murder, the sole appropriate course for a competent adult would be to alert a relevant law enforcement authority.

            If you do not have reportable information along that line, the sole course for a decent, sensible person would be to stop spouting superstitious nonsense while adults are attempting to engage in reasoned debate.

            1. RAK – Believe anything you want so that you can sleep at night.

            2. Rev, you want “reasoned debate”? Is this an April Fools’ joke? If not, can you really be that oblivious to the compelling, secular arguments against abortion?

              1. Why do the backward uneducated progressives have such a hard time with basic biology

              2. Secular arguments against abortion are largely pretext wielded by those whose relevant opinions derive from religion. People are entitled to believe as they wish, but competent adults neither offer nor accept superstition-based argument in reasoned debate, especially with respect to public affairs.

                Plenty of abortion opponents claim their position is libertarian, too.

                Apparently, those folks will believe or argue just about anything to advance their Mission From God.

                1. Wow. You really are oblivious to all arguments that abortion is objectively immoral.

        2. They already have you on the wrong side of the culture war. Although I’m still trying to understand why you prefer Marxist derivative style government like Progressivism, Communism, etc. instead of being free to make your own decisions.

      3. No, the death penalty needs to be done away with. We give the government too much power already.

        1. The only reason that the death penalty is a power of government is to curtail non-gov’t justice (vigilantism) from occurring.

    2. There’s probably a cogent argument against this post, but this ain’t it Arthur.

    3. the average time on death row, prior to execution in 2018?

      19 years.

      There is no reason, legally, to take more than two years per appellate court, of which, there are usually 3-4.

  2. I fail to see why the victims’ families have any input on this.

    While their loss is undoubtedly tragic, the punishment is not to make them happy, which it won’t do anyway. The “delays” are to insure that the right person is the one getting the punishment. Because as bad as waiting a long time for your child’s killer to be put to death…can you fathom the pain of having the WRONG person killed for the crime?

    …as if the state should be doing it in the first place. I don’t oppose the death penalty morally. I just think the state sucks at doing most everything and this seems like an AWFUL large thing to give them the power to also fuck up.

    1. ” The “delays” are to insure that the right person is the one getting the punishment.”

      Not if they’re “dilatory” delays. In that case they’re just delays for the sake of delay.

      1. An 8th Amendment challenge that the defendant’s medical condition would lead to a torturous death does not seem dilatory to me.

        1. Depends on the details. If the claim was frivolous, it could be. In this case the Supreme court found that his medical claim was factually dubious. And the record does appear to demonstrate a pattern of dilatory filings.

          I’m actually sympathetic to his desire to die by nitrogen asphyxiation, assuming it wasn’t chosen merely on the basis of not being available. It probably would be superior to the state’s current, litigation driven protocol.

          But it would also be guaranteed to produce a new round of litigation, which quite likely figured in his choice of it.

          1. BB: “I’m actually sympathetic to his desire to die by nitrogen asphyxiation”

            I’ll sign on to this. I’ve long wondered why states bother with their complicated, three-drug protocols, etc., with their inherent problems. I usually put it down to a lack of creativity. One could so much more easily put a person in a sealed chamber and replace the oxygen with nitrogen. The person passes out and dies peacefully. Maybe too peacefully for some.

    2. Since when doesn’t the retribution actually being carried out as prescribed result in satisfaction for justice being done for the victim? And of all the things that government does that could possibly result in the death of innocent people, capital punishment ranks at the very bottom.

    3. Families of the victims of murder should have no more input than the rest of us. ALL of us share the same interest in seeing justice done in a speedy manner. And all of us suffer when we go to the enormous effort to convict a person of murder and sentence them, and then see nothing done for decades. Justice delayed is justice denied.

      1. all of us suffer when we go to the enormous effort to convict a person of murder and sentence them, and then see nothing done for decades. Justice delayed is justice denied.

        Thanks for being in favor of the death penalty on behalf of everyone.

        And for pretending that being on death row isn’t a punishment at all.

        1. It’s not the punishment that was judged fair by a jury of the defendant’s peers.

          1. Which somehow makes all of us suffer? This guy isn’t walking the streets.

            Judged fair? That’s not exactly how our criminal justice system works with other sentences, is it?

            I know America is very gung-ho about the death penalty, in a bipartisan fashion, and that I’m an outlier in being against it.

            But let us not pretend that there is some huge society-shaking injustice in the process taking so long. America believes deep in it’s bones; in it’s mythology even, that killing certain people is just. But it also likes that we are very, very, sure it’s warranted when we go there.

            I don’t understand those advocating we strip away some of the process that goes into that surety to get more throughput. Do they think our society right now is full of chaos and injustice because not enough people are being killed by the State?

            1. I don’t understand those advocating we strip away some of the process that goes into that surety to get more throughput.

              This defendant was 10 days away from being executed when he filed a challenge to the lethal injection protocol. In the intervening five years, he failed to come up with any real basis to think that the lethal injection protocol would cause the problems he claimed it would at all, much less that it was inferior to another method.

              I think that reasonable people could legitimately conclude that this part of the process provided very little in the way of marginal added surety.

            2. let us not pretend that there is some huge society-shaking injustice in the process taking so long

              Whether or not it shakes society, it’s a huge injustice to the victim, over and above the central injustice of being murdered. 25 year old man murders 20 year old woman. That’s it for her – we’ll leave aside the matters under discussion in this case, such as the amount of fun involved in her last few moments, whether it was painful, frightening etc. She doesn’t get any more life. It’s over. She’s lost, say, 60 years of life.

              (a) Murderer is sentenced and executed within a couple of years. That’s it for him. No more life. He’s lost, say, 50 years of life. Not quite proportional, but not too far off.

              (b) Murderer sits on death row for 25 years, and is finally executed when he’s 52. He’s lost 25 years of life. Even after conviction, the murderer gets to keep half his life.

              Society’s message – deprive someone of their life, and we’ll punish you by taking away half of yours.

        2. And for pretending that being on death row isn’t a punishment at all.

          It isn’t. It’s where you wait for your punishment. Not a particularly fun place to wait, but then all sorts of things in the criminal justice system aren’t fun, and only some of them are punishment.

          Run from the cops, get shot in the back and finish up paralysed. No fun at all. But not punishment.

          If you meant to say that being on death row may not be punishment, but it’s certainly not fun, you’d be right.

          1. Not a particularly fun place to wait
            Other than that, how was the play Ms. Lincoln?

            JonFrum is arguing that being incarcerated on death row is tantamount to going free.

            Being so formalist as to insist that anything but death is not really punishment doesn’t make any sense. If it functions as a punishment, we should treat it as such. Anything else is pedantry in service of death.

            1. Being so formalist as to insist that anything but death is not really punishment

              In charity, I must assume you actually missed the point, rather than that you’re just pretending.
              When you’re convicted and sentenced to death, the punisment is death. Anything but “death” is not punishment. When you’re convicted and sentenced to a fine of $10,000, the punishment is a $10,000 fine. Anything but “a $10,000 fine is not punishment.

              It’s “punishment” when it’s the prescribed penalty duly imposed by the court. “Punishment” is not the same thing as “all unpleasant things that may happen consequent on conviction.”

              If you’r sentenced to jail and as a result lose your marriage, your house and your job, that’s very tough. But it isn’t punishment. The punishment is the jail term.

    4. The “delays” are to insure that the right person is the one getting the punishment. Because as bad as waiting a long time for your child’s killer to be put to death…can you fathom the pain of having the WRONG person killed for the crime?

      However this attempted delay didn’t claim- like most attempts at delay don’t claim – that the government has the wrong guy. And I could probably face, with a steady pulse and becoming fortitude, the possibility that the murderer might suffer a little discomfort during the execution. I don’t say that we should necessarily aim to inflict large doses of pain (though I think there’s an interesting moral argument to be had about why not) – merely that we should be willing to run that risk.

      Moreover, if I were a murderer facing execution, the pain of the execution would be occupying rather less than 2% of my appetite for worry.

    5. “The ‘delays’ are to insure that the right person is the one getting the punishment.”

      The delays in this case had nothing to do with Bucklew’s purported guilt or innocence.

    6. They have legal standing because of their relation to the victims, just as one would have in a civil case for a wrongful death claim.

  3. There’s no such thing as an “unjustified delay” in allowing state employees to kill a disarmed prisoner. Any time they’re allowed to do so is too soon.

    1. That, my friend, is a subjective matter of opinion.

      1. Yes, it is.

        Those whose opinions support limited government oppose the death penalty.

        Those whose opinions support limitless government support the death penalty.

        Some opinions are better than others, subjective or not.

        1. Who knew that the 5A’s & 14A’s requirement of due process before depriving a person of life means limitless government?

        2. We could have even less government if we just used vendetta.

        3. re: “Those whose opinions support limited government [must automatically and always] oppose the death penalty.”

          Not at all. It is entirely plausible to simultaneously support a limited government yet believe that at least some executions fall within those limits. Even the most ardent supporters of limited government still believe that defense of country and prosecution of war are a proper role of government.

          Personally, I think the best argument against the death penalty is not the size of government but the fallibility of man – and therefore, the fallibility of government. Incarcerating an innocent man is wrong but you have at least the theoretical possibility to make it right. There’s not much you can do to make it right after you wrongly execute someone.

        4. By far, the most limited of all government programs is the death penalty, nothing else is close.

    2. How is the state executing someone convicted of murder different from throwing them into solitary confinement for the rest of their natural life effectively allowing time to be the executioner? To me both of morally equivalent.

      1. Since extended periods in solitary confinement are essentially torture, I agree.

    3. So, you would support breaking a death row prisoner out of prison, to take your example to an extreme?

  4. The problem with the death penalty is that the defense bar has tried to end the practice by “a death of a million cuts”. Grinding down the machinery to a decades long march was all part of the plan.

    Due process provides someone who is death penalty eligible gets a fair trial and perhaps an appeal. That is it. Give them that then march them up to the gallows for execution of sentence. Not hard. That is how it worked for the first 150+ years of the Republic and for many centuries under colonial rule.

    1. We did a lot of stuff in that first 150 years of the Republic we maybe aren’t super into nowadays.

      1. Like what?

        Give us one example, just one.

        1. Slavery ?

    2. Jimmy the Dane, isn’t there another relevant phrase?”death penalty qualified”?referring to the jury panel. As a respecter of due process, can you explain to me how that fits in?

      1. When I say “death penalty eligible” I mean that under the interpretation of our current constitutional protections only murder it eligible for the death penalty.

        Death penalty qualified jury is just a heightened state of scrutiny that is applied to jury selections when the death penalty is being sought. And, if due process is going to be treated as a balancing test (as the courts currently do) I don’t see anything wrong with having heightened process requirements for more severe potential sentences.

        What due process does not require though are endless appeals that take years to resolve. Hence why I say fair trial, an appeal, then if upheld carry out the sentence.

        1. https://en.wikipedia.org/wiki/Death-qualified_jury

          Interesting policy arising from an interesting case.

        2. Jimmy, I can’t follow your argument. What makes you suggest that a death penalty qualified jury panel is, “just a heightened state of scrutiny that is applied to jury selections when the death penalty is being sought.” From the defendant’s point of view, it’s just stacking the deck against him. With regard to presumption of innocence, isn’t that abdication of scrutiny, not heightened scrutiny?

    3. It’s not the defense bars fault, but thfault of the judges that allow it.

      The judges are the problem.

  5. Although there are no Obama judges and no Trump judges, I’m on tenterhooks to discover who the 5 were and who the 4 were.

    1. Yes, I know, who saw this coming:

      GORSUCH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, ALITO, and KAVANAUGH, JJ., joined. THOMAS, J., and KAVANAUGH, J., filed concurring opinions. BREYER, J., filed a dissenting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined as to all but Part III. SOTOMAYOR, J., filed a dissenting opinion.

      BTW, imagine how morally depraved you have to be to write this:

      When an inmate raises an as-applied constitutional challenge to a particular method of execution?that is, a challenge to a method of execution that is constitutional in general but that the inmate says is very likely to cause him severe pain?one question is whether the inmate must identify an available alternative method of execution that would significantly reduce the risk of severe pain. Applying our recent decisions in Glossip v. Gross, 576 U. S. ___ (2015), and Baze v. Rees, 553 U. S. 35 (2008) (plurality opinion), the Court’s answer to that question is yes. Under those precedents, I agree with the Court’s holding and join the Court’s opinion.
      I write to underscore the Court’s additional holding that the alternative method of execution need not be authorized under current state law?a legal issue that had been uncertain before today’s decision.

      1. What’s morally depraved about it?

        There’s no challenge here to the legitimacy of the sentence. There is therefore no doubt the state gets to lawfully kill him.

        To prevent the challenge to the method from becoming a backdoor challenge to any death penalty, he has to identify the alternative.

        The death penalty itself is morally depraved. But this legal rule is entirely predictable once we decide to have it.

        1. Leaving to one side the depravity of making someone propose their own method of execution, clearly if there is no constitutional method of killing him, there is and should be a challenge to the legitimacy of the sentence. It takes a special kind of blood lust to put the burden of proof on the victim to prove that there exists some legal way to kill them, as opposed to putting the burden of proof on the state, where it belongs.

          1. After conviction, the burden of proof is, always, on the convicted party.

      2. Except – the probability of pain is remote – in other words – it is BS

      3. BTW, imagine how morally depraved you have to be to write this:

        Call me whatever names you want, but not only do I think Kavanaugh is clearly right here — I can’t even understand how there could be a rational counter-argument. The argument that capital punishment is per se unconstitutional strikes me as extremely weak, but I can comprehend it. But the argument that federal courts should entertaining a plaintiff who claims 1. it’s fine for them to execute me in principle; 2. this particular way of executing me is too painful; 3. I can’t think of any viable ways to be executed that would be less painful is beyond me.

    2. Lee Moore, they were just who you expect. Which raises a question. It’s easy to understand why a Republican politician is pro-death-penalty, and modestly indifferent to prospective suffering for the condemned. Politicians have the views of constituents to consider. Why does it play out the same way on the Court?

      Another riddle. Apparently the Court has some kind of policy that any condemned person who raises a legal objection to an execution method has to propose an acceptable alternative, or be ignored. Can anyone explain the legal basis for that? Or was it just bad reporting that I read.

      And then, as in this case, the condemned proposes a method the majority doesn’t like, and gets ignored anyway. Seems arbitrary.

      1. See the bit of Gorsuch’s concurrence that I quoted. It’s basically making stuff up on the fly to minimise the chance that someone might not get executed.

      2. The legal basis is Baze v Rees, mentioned in Martinned’s comment.

        Stripped to its essentials, the gist is that if you are claiming that while the death penalty is fine in principle, this particular method is cruel and unusual punishment because it is more painful than it need be; then you have to prove the “than it need be” bit. Which requires offering something that is just as effective and doable (meeting the government’s justifiable need to execute you) but that you accept is less painful.

        So you have to propose a method that (a) you concede is less painful and (b) the court accepts is just as practicable. You can see – I hope – that even if you accepted that being sent up in a space rocket and jettisoned so as to orbit the moon was less painful than whatever was otherwise planned, the court might reasonably doubt the practicality. I presume this guy failed (b).

        1. Lee Moore, can you see any problem with a premise that the condemned person must concede the “death penalty is fine in principle,” in order to get due process consideration for a claim that the method the state seeks to impose is unconstitutional?

          1. That’s what an “as-applied” challenge is. If you want to argue that the death penalty is unconstitutional for everyone – or even that just this method of execution is unconstitutional for everyone, that would be a “facial” challenge.

            Bucklew’s lawyers didn’t make that argument, likely because they knew it would be an automatic loser because lethal injection has already been found constitutional. Their only hope was an as-applied challenge that considered his individual medical condition. Ultimately, the lower courts found his expert witness’ testimony about the implications of that medical condition non-credible.

          2. Well it depends on whether the condemned man (or his lawyer) has in mind :

            (a) an impassioned moral plea to mankind in general, or
            (b) a legal pleading with some chance of keeping him above ground a while longer

            SCOTUS having long ago concluded that the death penalty is not, per se, cruel and unusual punishment, if you’re trying (b) you have to adopt a more oblique approach.

            But if you’re going for (a) then sure, give it whatever you’ve got. Perhaps you’ll sway the Governor.

            1. You’re missing a 3rd option:

              The death penalty may not be unconstitutional for everyone, but that doesn’t mean that it’s constitutional for this guy. If there is no constitutional method of killing him, then he can’t be killed. In any other situation, the state who are proposing to do something bear the burden of proof to show that they can do this thing in a constitutional manner. Why should the death penalty be any different? None of that is an argument seeking to overturn the death penalty generally, for all prisoners.

              1. Sure, they decided a while back that it was unconstitutional for people under 18, if I recall correctly.

                But I can’t see how the fact – if it were a fact – that this method would be particularly painful for this guy, makes it a “cruel and unusual” punishment in his case. If it’s the least painful, practicable, way of delivering the punishment, then he’s just unlucky.

                No doubt the guy who goes to jail for ten years, who is ripped from the bosom of his happy family, who misses his kids growing up, and whose doting mother is sent into a decline by his absence suffers more than the misanthropic lowlife serving a like sentence one cell along the corridor. Doesn’t make the first guy’s punishment cruel and unusual.

                1. Lee Moore: “Sure, they decided a while back that it was unconstitutional for people under 18, if I recall correctly.”

                  Also that you can’t execute a person with a low IQ; and you can’t execute a person who only raped, tortured, and mutilated the victims but didn’t succeed with the killing part (or didn’t want their suffering to end with a merciful death).

      3. Apparently the Court has some kind of policy that any condemned person who raises a legal objection to an execution method has to propose an acceptable alternative, or be ignored.

        Well you could start by reading the opinion, which explains it pretty well. To summarize,

        when it comes to determining whether a punishment is unconstitutionally cruel because of the pain involved, the law has always asked whether the punishment “superadds” pain well beyond what’s needed to effectuate a death sentence. And answering that question has always involved a comparison with available alternatives, not some abstract exercise in “categorical” classification. At common law, the ancient and barbaric methods of execution Mr. Bucklew cites were understood to be cruel precisely because?by comparison to other available methods?they went so far beyond what was needed to carry out a death sentence that they could only be explained as reflecting the infliction of pain for pain’s sake. Meanwhile, hanging carried with it an acknowledged and substantial risk of pain but was not considered cruel because that risk was thought?by comparison to other known methods?to involve no more pain than was reasonably necessary to impose a lawful death sentence.

        You could also read Baze v. Rees, 553 U.S. 35 (2008) and Glossip v. Gross 576 U.S. —, 135 S. Ct. 2726 (2015).

  6. Good to see that membership in “Libertarians For Government Killing” is just as popular among reason.com and Conspiracy fans as is membership in “Libertarians For Tariffs,” “Libertarians For Statist Womb Management,” “Libertarians For Government Gay-Bashing,” “Libertarians For Authoritarian Immigration Policies,” “Libertarians For Big-Government Micromanagement Of Ladyparts Clinics,” “Libertarians For Torture and Endless Detention (Of Muslims) Without Trial,” and ‘Libertarians For Abusive Policing.”

    Providing a spot at which faux libertarian malcontents can congregate for authoritarian, right-wing fellowship isn’t all bad.

    1. You clearly support murder.

  7. Last week a man was released after 43 years in prison solely because he was innocent. I don’t get the support for the death penalty.

    1. And in those 43 years, how many murderers who have not been executed have gone on to kill someone else ?

      Here’s a start : http://www.wesleylowe.com/repoff.html

      I do get why some people don’t like the death penalty. But horror at the possible loss of innocent life is a remarkably poor reason for not liking it.

      1. how many murderers who have not been executed have gone on to kill someone else?

        That’s some truly awful logic.

        1. No it’s not.

          Ha, we can all do ex cathedra proclamations. And mine are better than yours.

          1. Lets kill everyone. After all, how many murderers have been allowed to kill because they were not preemptively killed?

            See, your logic proves way too much. Because it’s retrospective and counterfactual. With that kind of speculation, you can argue for arbitrarily harsh punishments to prevent retrospectively identified future murders.

            1. Thank goodness America generally rejects the preferences of people such as Lee Moore.

              This makes me ready to win another culture war against the right-wing authoritarians.

            2. Well, I agree that’s truly awful logic. But it’s also your straw man.

              Killing everybody wouldn’t reduce the amount of innocent death, would it ? Doh !

              But failing to execute convicted murderers reduces the amount of innocent death only if {number of innocents executed by the state by mistake} > {number of innocents killed by convicted murderers after their conviction + number of innocents killed by murderes who would have been deterred by the threat of the death penalty} The figures doubt this inequality goes the right way for you.

              Now of course the criminal justice system is an engineering mix of morality and practicality. Or perhaps more strictly, there is a utilitarian aspect to the moral calculation. If we want to eliminate the risk of anyone being wrongly convicted, evah, we have to eliminate the whole system. But that’s not practical – it would cause more innocents to suffer.

              And as a particular case of this, we have the moral analysis of the risk of executing innocents by mistake. if failing to execute murderers increases the incidence of murder by y and the expected number of innocents executed by mistake is x, then deciding the morally appropriate value of y/x is not going to be agreed by all people. Some people seem to think the answer is infinite. I don’t.

              1. So to tailor the hypothetical some, if you don’t like my breezy hyperbole, your inequality would indicate we should jail everyone in solitary (robot jailers?) to avoid any murderers being free to do their thing.
                Because it manages to be both myopic as presented and uses a moral framework more evident in movie villains than our policies.

                There are lots of ways to reduce the risk of murder, and killing convicts faster isn’t one we choose to use. Because utilitarian analysis is not what we go with morally or practically, particularly in this area.

                1. There are lots of ways to reduce the risk of murder, and killing convicts faster isn’t one we choose to use.

                  We who we ?

                  You and your dishonest liberal judges that’s who.

    2. Without the death penalty, how will we kill those who put that innocent man in prison?

      Call the Punisher?

    3. The support for the death penalty is based upon the same foundation for all sanction support – justice.

  8. What the govt should do, as soon as the prosecution seeks the death penalty, is to get one or two top death penalty litigators – and America has the best death penalty litigators, everyone agrees – give them a bunch of money, so they can throw everything they have at the charges to try to undo them or at least get a non-death sentence. Then if there’s a death sentence anyway, the courts should only step in in extraordinary cases – like if for instance the prosecution hid evidence or what have you.

    1. Yeah, well, either that or just generally have a non-rigged justice system. Because, ya know, not everything can be fixed by putting a top-notch defence attorney on the case.

    2. And yet, we would discover that every case was extraordinary in its own way.

      I recall, long ago and in a galaxy far away, reading that in England they had a home burglary panic and much fuss about derisory sentences. So they introduced a three strikes at burglary and you have to go to jail for a minimum of three years, or five years, or something. The judge could only decline to impose the minimum in “extraordinary” circumstances. About ten years after the imposition of these new minimum sentences an English congresscrittur asked the government – how many minimum sentences had been imposed so far ? The answer was something ridiculous – like four.

      Extraordinariness is much more ordinary than you think.

    3. The first part is more or less how the federal capital system works. It doesn’t cut down on the post-conviction litigation in any meaningful way. The upshot is that there hasn’t been a federal execution in over 15 years: the Bureau of Prisons doesn’t even have an execution protocol.

      1. That’s quite interesting, maybe I need to keep looking for the “right” answer.

  9. I’m not the first to bring this up, but I just don’t get the justification for allowing victims’ families a platform at trial. Not that their loss isn’t important and relevant — it’s both — but there’s a time and a place, and I was given to believe criminal prosecution was the exclusive province of the state. In addition to their right to pursue civil actions, the families’ grief is conspicuously catered to by the legislatures which write the laws and sentencing schemes that set the stakes at trial. How is also giving them a separate voice at that trial not double dipping?

    1. The victim’s family stand in loco victim, in a murder case. Because…..

      So the question is whether you’re doubting the extension of the concept of the victim having some rights in a criminal case to the victim’s family in a murder case, or the concept itself.

      As to the concept itself, I suppose it boils down to whether you regard a crime committed against a person) as being

      (a) a crime against the state
      (b) a crime against the person
      (c ) a mixture thereof

      And to the extent that it’s a crime against the person, the state – no doubt for good prudential reasons of trying to ensure a good effort to separate guilt from innocence, and to ensure the punishment is no greater than is just – has elbowed aside the victim in the business of punishing the wrongdoer. Absent the state, the victim (or in the case of murder, his family) would be (justly) meting out punishment to the perp. If they could. If you entirely cut the victim out of the process, the victim may reasonably doubt whether the state is doing it right. And looking at the US criminal justice system, not without reason.

      1. This is really attenuated logic.
        Lots of countries don’t have the death penalty. They don’t have a bunch of self-help going on.

        1. And those same countries are also socialist hell holes that provide “universal health care” and punish “hate speech,” defined as anything critical of any troublesome minority group.

        2. You need to work on your own logic. My last post wasn’t even about the death penalty !

  10. Thank you Prof. Cassell

  11. I wish the liberal judges would just admit that they would find the death penalty unconstitutional in all cases, no matter what the state argued. That would make people use an appropriate grain of salt when judging these “rulings.”

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