Death Penalty Article

[tipperdog]

I have two major problems with David's proposal.

1 (most important). It won't fix the problem.

I'd argue that the wrongly convicted are actually more likely to be "no doubt" than "shadow of a doubt." I cannot quantify this to any reliable degree, but it's clear that many cases involving the wrongly accused hinge on: 1) mistaken witness ID; and/or 2) prosecutorial/investigator misconduct.

Imagine a case where an eye-witness swears he saw the defendant kill a guy AND the defendant's blood was found at the scene. That's a "no doubt" kind of case. But if the eyewitness was lying and the cops planted the DNA, an innocent dude will certainly fry.

Conversely, in an case tried on the up-and-up, there's almost always SOME doubt, because the prosecutors turn over all exculpatory evidence, eyewitnesses are imperfect, etc.

So, I'd argue that David's solution could make the guilty more likely to be spared the death penalty, while the innocent could become a greater share of the wrongly executed--exactly the opposite of the intended effect.

2. (less important). David's solution greatly magnifies the possibility of a "compromise verdict" in the jury room. If a jury is split between guilty and not guilty, it's easy to imagine that they might compromise on "guilty with a shadow of a doubt" rather than completing their deliberations as they should. Avoid such compromises is why penalty phases are separate today.