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.

[David Sklansky]

"PS David--since you have evidently figured out the precise definition of "shadow of a doubt","

I'm not going to debate this subject until I find out more about whether it is alrady in the criminal justice system. But the above comment was so stupid that I had to chime in. 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.

[David Sklansky]

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

[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.

[Twisty]

This whole idea assumes "life in prison" for an innocent person is better than than the death penalty.
Most would agree but i certainly dont.At the very least i would give life the same HPS as execution.

[Position]

Possibly great idea:

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[miami32]

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

[miami32]

While I was in college my law teacher actually gave beyond a reasonable doubt a percentage as along with all other forms of guilt for other cases and forms of law. Is this not the norm?

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.

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%.