Death Penalty Article

I am a lawyer who has worked in death penalty defense at the direct appeal and postconviction/habeas corpus level. It would take some research to answer this question with perfect accuracy and concreteness. However, my short answer is no, this is not the standard in most jurisdictions.

In all jurisdictions that apply the death penalty, the jury during the penalty phase is presented with a list of aggravating circumstances which they may consider in deciding whether death penalty is appropriate, and a list of mitigating circumstances which they are to weigh against aggravating circumstances. The mitigating circumstance list will include a catchall provision that says "Any other factor which indicates that a sentence lower than death is appropriate" and the jury will be instructed that the list of mitigating circumstances is not exhaustive. However, the exact composition of the list of aggravating and mitigating circumstances varies from state to state (many parameters and restrictions have been established by the jurisprudence of the U.S. Supreme Court, and many jurisdictions copy each other, especially when the formulation used in one place is upheld by the higher courts). The jury is then instructed that before it imposes a sentence of death, it must find that the aggravating circumstances outweigh the mitigating circumstances beyond a reasonable doubt.

Some jurisdictions instruct the sentencing juries that one of the mitigating circumstances they should consider is lingering doubt about the guilt of the defendant. This is considered controversial, probably because it implies lack of confidence in the guilt decision that has already been reached by the jury. I believe that a minority of jurisdictions give this instruction. By no means is the instruction explained or justified in the terms used by David in his article. I have always believed that the doubt referred to in the phrase "lingering doubt" refers to the reasonable doubt standard, and not the shadow of a doubt standard proposed by David. Then the question becomes, are you sure you should have voted guilty in the first place (presumably they are), not the question that David proposes that the jury should be asked.

Jurors do hear the phrases like "beyond a shadow of a doubt," etc. Virtually every prosecutor I have gone up against in a criminal trial spends a portion of the voir dire telling the jury that this is NOT the standard they will be asked to apply, and asking jurors who insist on applying a "beyond a shadow of a doubt" standard to identify themselves so that they can be removed from the venire. In one of the death penalty cases I worked on, the Judge's instruction to the jury about reasoanble doubt included the following paragraph:

The phrase reasonable doubt is self-explanatory and efforts to define it do not always clarify the term but it may help you some to say that doubt which would justify an acquittal must be an actual and substantial doubt, and not a mere possible doubt. A reasonable doubt is not a mere guess or surmise and it is not a forced or captious doubt. If, after considering all of the evidence in the case, you have an abiding conviction of the truth of the charge, then you are convinced beyond a reasonable doubt, and it would be your duty to convict the defendant. The reasonable doubt which entitles an accused to an acquittal is not a mere fanciful, vague, conjectural, or speculative doubt, but a reasonably substantial doubt, arising from the evidence and remaining after a careful consideration of the testimony, such as reasonable, fair-minded, and conscientious men and women would enter under all the circumstances.

This is certainly not a "beyond a shadow of a doubt" standard, and I believe it even sells short the "beyond a reasonable doubt" standard. However, it is standard charging language in the state of Alabama.

I have read this article and the entirety of the posts on this board with interest. Besides being a poker player and avid reader of David Sklansky, I am a lawyer who until last September worked as a public defender representing criminal defendants in trials in state court. Furthermore, between 2000-2002, I had a fellowship which brought me to Montgomery Alabama where I assisted approximately 48 death row prisoners with direct appeal, state postconviction, and habeas corpus petitions. As such, I interviewed death row prisoners, jurors from capital cases, family members of both victims and defendants, and witnesses of capital crime. The death penalty and its administration is a subject that I have studied and thought about a great deal.

Personally, I am opposed to capital punishment in all cases. This is both for moral and practical reasons. However, it is my moral objections to the death penalty which present the biggest obstacle to my support of David's proposal. Since I believe that in this day an age it is immoral for the government to execute a prisoner under all circumstances, I would have a serious problem supporting any proposal which provided a mechanism by which execution could take place, albeit at a (presumably) reduced rate. However, I take this as a proposal for reform designed to reduce the number of executions of innocent persons, without taking a stand on the propriety of the death penalty itself.

Innocence and the death penalty is a very serious issue. The facts are that since 1973, 121 people in 25 states have been released from death row with evidence of their innocence. My opinion is that this number represents only a fraction of the innocent people who are convicted and sometimes executed. Resources to investigate innocence are scarce, and it is rare for resources to be spent on cases where a execution has already occurred, since the resources are insufficient to devote to the cases of individuals who are still on death row. Furthermore, it is only in a fraction of cases that innocence is scientifically testable. If no evidence of biological samples is available which could provide a DNA exclusion, then this recourse is not available to the defendant. This is why innocence is most often proven in cases involving rape. It is not because wrongful convictions are particularly likely in those cases, but because it is more probable that evidence capable of excluding the defendant will have been collected and preserved. It is often surprising, even when this evidence exists, how much resistance there is to the (relatively inexpensive) procedure of performing the tests.

I agree with David's idea that it is possible to distinguish cases where the question of guilt may fall into the gray area of "beyond a reasonable doubt" from cases where the guilt can be described as "beyond a shadow of a doubt." To a large extent, the category a case appears to fall into will depend on the skill of the defense team. However, there are many cases in which innocence is not a serious issue. Take for example a case in which the defendant has confessed, has possession of the murder weapon, property of the victim, and is wearing clothes spattered with the victim's blood at the time of arrest (other issues, such as self defense, insanity, or duress might still be in play, but you can take my word for it, when you read two dozen transcripts from death penalty trials there are some cases in which you raise innocence as an issue, and some cases in which you don't).

I don't really challenge David's logic or the theorectical soundness of the proposal. In fact, I would be willing to bring it to the attention of others who still work in the death penalty field. I do question whether the proposal would be effective, because of two factors which are outside the scope of the article. These are the psychology and the politics of the death penalty.

Psychology is factor which may be overrated at the poker table, but it would be hard to overrate its significance in the mechanism of the death penalty. Jurors are given all kinds of instructions, but the actual deliberation takes place behind closed doors, and it is anything but a dispassionate process. Many people have concluded that the complexity of jury instructions in capital cases is already well outside the ability of a well meaning juror to apply. It is possible that juror response to these new instructions would be less predictable that it would appear.

Politics also cause the public discourse about the death penalty is also highly charged, which is apparent even reading through posts on this forum. Because of this minefield, death penalty opponents and proponents think very strategically about what they say and what they support. It is optimistic to think that an initiative in this arena, however phrased, would be viewed or accepted as being "solely related to logic and probability." Frankly, I would be fascinated to see what would happen. However, if this was an arena in which logic held any sway, I believe we would have joined Europe and 90% of the civilized world in abolishing the death penalty a long time ago.

One area in which the proposed change of standard could have a dramatic effect is in reducing the number of cases in which the prosecutor decides to seek death. It is no exaggeration that every death penalty trial costs the public many times more money than would be spent on a non-capital trial resulting in a sentence of life without parole. In the small communities in which capital trials often arise, the cost of one death penalty trial could be the largest budget item for the county that year, without even examining the cost of appeals. Which is reason enough to give this serious thought.

[felson]

Very interesting. Thanks for joining the forum and for your insightful posts.

[AtticusFinch]

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i think this is asign of his increasing instability. not a joke but a serious comment. the fact that virtually every sentence is an an insult to rational argument is beside the point. The fact he feels the need to come out of the Science, Math, philosophy closet and put forward nonsense such as this as official 2 2 poker policy is staggering.

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2+2 is whatever its owners decide it is. Surely you can't deny that David has a solid background in probability theory. He came up with an interesting application for it, and used his own outlet to express it. So what?

Open your mind a little. Learning about how to apply probability theory to a wide range of complex problems can only improve your Poker game.

[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.

[AtticusFinch]

All I have to say about this is if you want to get an idea about how widespread ignorance and misunderstanding of basic probability theory is, just check out the Monty Hall Dilemma. I'm constantly shocked at how few people get this one right. In fact, in one study, a majority of math professors answered incorrectly.

And yet, it's one of the simplest applications of Bayes' Theorem out there.

As an attorney, I can tell you that most judges' understanding is positively laughable, and they usually have a much better grasp than legislators who actually draft these policies.

Oh, and the so-called "expert witnesses" judges bring in to help them grasp statistical arguments are usually full of crap as well. It's a sad state, really.

[AtticusFinch]

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I wouldnt like to be a part of any "twoplustwo thinktank". I come here to learn and discuss poker related subjects. Not to be bunched up with some death pentalty advocate.

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So choose another thread.

[Jimbo]

My position is quite different from yours. If convicted of a capital crime there should be one mandatory appeal within a 3 year period then the death penalty should be imposed immediately if the appeal is unsuccessful. The appeal will only allow the immediate release of the prisoner or the aforementioned and previously decreed death penalty.

The loss of a few innoncent lives is like collateral damage in war, regrettable but necessary. Whether or not this will reduce the total number of crimes with a death penalty attached is not a factor. The primary benefit is that less money will be spent by our government on useless appeals, food, housing and medical care. This will be a greater benefit to our society than the few innocnet people missing from our economy.

In short the value of human life is rated extremely too high. This naturally leads to the concept that if the former is true why should one be executed simply for causing anothers death. I know not how to reconcile the above conundrum but present it only so it was aparrent that I did not overlook the irony.

In closing this method would have the added benefit of preventing those averse to being executed from engaging in activities which might put them in such a position as to become a prime suspect in a capital crime. Now a criminal who also loves to gamble might see a pretty good deal having a chance to be released after only three years for whatever type of heinious crime that suits their fancy. These factors may very well tend to nearly cancel each other out but it would certainly prevent the average criminal from escalating his activities to capital crime.

[Xhad]

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All I have to say about this is if you want to get an idea about how widespread ignorance and misunderstanding of basic probability theory is, just check out the Monty Hall Dilemma. I'm constantly shocked at how few people get this one right. In fact, in one study, a majority of math professors answered incorrectly.

And yet, it's one of the simplest applications of Bayes' Theorem out there.

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That is just gross. I read most of the "solutions" here and I'm still shaking my head on how people can construct such elaborate yet blatantly wrong explanations.

EDIT: OK, wow, now I'm starting to doubt myself. WTF, if switching is correct I don't know how many things I must have wrong.

[AtticusFinch]

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EDIT: OK, wow, now I'm starting to doubt myself. WTF, if switching is correct I don't know how many things I must have wrong.

[/ QUOTE ]

Yep, switching is correct. Don't feel bad. Like I said, even most math professors get it wrong. But consider that if so few can get this very simple problem right, how endemic misuse of statistics is in more complex situations.