Death Penalty Article

If your undergrad "law professor" was assigning percentages to the reasonable doubt standard, he is an idiot. The only standard subject to a percentage formulation is the civil liability standard of proof known as "more likely than not"--and that is usually described as 51%.

[AtticusFinch]

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Because juries are already expected to make decisions beyond a "reasonable doubt", an imprecise term that they are given some help with. Similarly for a new term like shadow of a doubt.

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I'm an attorney, and I do a little criminal work from time-to-time. My recollection is that "shadow-of-a-doubt" was at one time the standard for all criminal cases, and at one point this standard was proposed for entry into the constitution, but was rejected after debate. I'm not aware of it being used in the present, although that's not conclusive, of course.

David is right, by the way: Juries are constantly required to make "precise" numerical judgments that are intractable, and this is hardly limited to criminal cases. Consider placing a dollar value on a lost limb, for example.

Our legal system accepts these imprecisions, mainly out of faith that people can assimilate the instructions and come up with a result that makes sense most of the time. And most any attorney will tell you that this is largely borne out by the facts.

A common saying: We have the absolute worst possible legal system, except for every other one that's ever been tried.

[David Sklansky]

"Seriously, this sort of garbage falls from the same tree as Hollywood 's incredible narcissism,"

Except actors can't beat the people they are trying to influence on generalized thinking tests.

[roundhouse]

David,

You write very good poker books, but you are not cut out to write this kind of policy comment.

1) Your suggestion is for society to put an explicit price on human life (this is what your HP system is really doing). Whilst the logical minded 2+2ers will see sense in this it is an absolute political no goer. Ask yourself how likely any politician in any country is to answer questions like:
"What is worse, X murderers being set free or Y innocents wrongly executed?"
"What is worse, X of your country's soldiers being killed in battle, or Y innocent civilians from another country?"
(And it doesn't matter what numbers you substitute for X and Y.)

2) Even if you could agree a price of life and have it publically and politically accepted and somehow get this two tier conviction process to pass judicial muster you haven't solved the fundamental problem. If you have a death penalty you will kill innocent people. Those against the death penalty believe that even one innocent executed is one too many: HP=infinity if you like. Your policy suggestion is basically that America should kill slightly fewer innocent people. Why not just abolish the death penalty (some would say "join the civilised world") and have none?

3) You seem to think that there aren't those smart enough within the government machinery - and real think tanks for that matter - to consider these things. You are mistaken.

Best if you stick to the poker I think.

Couldn't agree more... what are you on about David?

[Awesemo]

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"Seriously, this sort of garbage falls from the same tree as Hollywood 's incredible narcissism,"

Except actors can't beat the people they are trying to influence on generalized thinking tests.

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I think that the article is very poorly written. If you plan to discuss the death penalty, you need to consider all the issues. Your discussion of execution of an innocent perosn wasn't even very well thought out. After 20 years of being in prison and being through appeals, surely you would agree that there is only a sliver of hope for death row prisoners to be released in their lifetimes. Personally, I don't think this issue is one of the more important issues, even though I think that if it happened, executing an innocent person would be morally repugnant. Our court system is going to make errors and there is not any way to control that. Saying that it would mitigate the damage to release a convict after 20 years of a wrongful conviction is probably a half-truth.

I would think that in your wisdom, you would realize that complex moral issues like capital punishment do not have rights or wrongs. That is why people take opposing sides. People value different concepts more than others, and that leads to the difference of opinions.

Really, I think that you should stay away from philosophy. Many famous mathematicians have dabbled in philosophy, and they have all failed miserably. Do you think that you as a poker player are going to have better skill?

I'd like to see more celebrity poker players have control of their egos.

[miami32]

That has got to be the dumbest response to a very intelligent article I have ever seen. I'm sorry David.

Just for the record, I am an expert on criminal law. Sklansky's pseudo-procedural protection ignores 30 years of death penalty jurisprudence, and general jurisprudence which has sought to get away from amorphous, subjective standards. Is the "shadow of a doubt" more or less than a "scintilla" of doubt? What about a "modicum of doubt"?

Sorry, but its just a ridiculous proposal. The problem with the death penalty is not that the standard allows for too much error, but rather that the financing system for legal aid provides incompetent counsel to capitally charged defendants. No procedural or substantive change can solve that problem. It's a simple problem of lack of financing.

You want to solve the "bare innocence" problem in death penalty cases? Pass a state law that requires prosecutors to designate a case as a capital crimes case, requiring approval from the state AG to bring. Then, if the case is approved for capital prosecution, have the state/county fund a serious legal defense costing serious money. Not necessarily OJ Simpson dream team stuff, but the type of defense that would be put forth by the Federal Public Defender's office.

Local counties and the state would be charged the pro-rata cost of the defense, which would have the effect of causing prosecutors to think twice before deciding to charge a capital crime. This would result in greater uniformity in prosecutions, and would additionally reserve the death penalty cases for those in which the crime was most heinous and/or the proof was most uncontestable.

[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.

[David Sklansky]

Both your comments are extremely farfetched and almost certainly wrong. I'll elaborate if it becomes relevant.