David Kirkpatrick

December 18, 2008

Anti death penalty message from outgoing Mississippi judge

Filed under: Politics — Tags: , , , , , — David Kirkpatrick @ 10:46 pm

Mississippi Supreme Court Justice Oliver Diaz, Jr., lost his re-election bid this year and soundly berated the death penalty, particularly how it is administered in Mississippi in his final death penalty opinion.

From the Hit & Run link:

Diaz has also seen the criminal justice system from the other side. During his term he was twice tried—and twice acquitted—in federal court of taking bribes, charges critics have said were politically motivated, and part of the Bush administration’s politicization of the Justice Department.  He lost his bid for reelection last November.

Mississippi actually has been surprisingly slow in executing people off Parchman Penitentiary’s death row.  But it’s not for a lack of trying.  The state has been repeatedly rebuked by the federal courts for adopting illegal jury instructions, providing insufficient and underpaid public defenders (by state law, they can receive no more than $1,000 per case), and other inadequate protections in death penalty cases. I suspect (and hope) we’ll also soon see the federal courts sending scores more cases back for a new trial because of the improper testimony Dr. Hayne and Dr. Michael West.

Reason’s Radley Balko perfectly sums up my exact thoughts on the death penalty:

I’m opposed to the death penalty not because I don’t think there are some crimes so heinous that they merit death as a punishment.  I’m opposed to it because I don’t think the government is capable of administering it fairly, competently, and with adequate protections to prevent the execution of an innocent person.

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2 Comments »

  1. Rebuttal to Judge Diaz

    Diaz dead wrong on innocence

    Diaz needs to review what the distorted “exonerated”, now, means to death penalty opponents. They created their own definition, which has nothing to do with actual innocents.

    The false claim is that 130 exonerated have been released from death row. Any effort at fact checking will show this number to be unsupported.

    Possibly, 25 out of 8000 so sentenced, in the modern era, have evidence of actual innocence – about 0.3% of those so sentenced.

    The evidence is that innocents are more at risk when we don’t use the death penalty.

    To state the obvious, living murderers, in prison, after release or escape, are much more likely to harm and murder, again, than are executed murderers.

    No knowledgeable, honest party questions that the death penalty has the most extensive due process protections, meaning actual innocents are more likely to be sentenced to life imprisonment and more likely to die in prison serving under that sentence, that it is that an actual innocent will be executed. That is. logically, conclusive.

    Diaz: dead wrong on deterrence.

    16 recent studies, inclusive of their defenses, find for death penalty deterrence. No surprise. Life is preferred over death. Death is feared more than life.

    Some believe that all studies with contrary findings negate those 16 studies. They don’t. Studies which don’t find for deterrence don’t say no one is deterred, but that they couldn’t measure those deterred.

    All prospects of a negative outcome deter some. There are no exceptions. The most severe criminal sanction would be the least likely to contradict that truism.

    The question is not “Does the death penalty deter some potential murderer?” Of course it does.

    The question is “Can opponents prove that some are not deterred?” Of course they can’t.

    Diaz wrong on revenge.

    The criminal justice system goes out of its way to take revenge out of the process.? That is why we have a system of pre existing laws and legal procedures that offer extreme protections to defendants and those convicted and which provide statutes and sanctions which existed prior to the crime

    It is also why those directly affected by the murder are not allowed to be fact finders in the case.

    The reality is that the pre trial, trial. appellate and executive clemency/commutation processes offer much ?greater time and human resources to capital cases than they do to any other cases, meaning that the facts tell us that defendants and convicted murderers, subject to the death penalty, receive much greater care and concern than those not facing the death penalty – the opposite of a system marked by revenge.

    Diaz dead wrong on constitutionality

    Twice, the 5th Amendment authorizes execution.

    (1) “ No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . ” and

    (2) “. . . nor shall any person . . . be deprived of life, liberty, or property, without due process of law . . . ”.

    The 14th amendment is, equally, clear:

    ” . . . nor shall any State deprive any person of life, liberty, or property, without due process of law . . .”

    Not surprisingly, over 200 years of US Supreme Court decisions support those amendments and the US Constitution in authorizing and enforcing the death penalty.

    Of course the death penalty is not cruel and unusual punishment.

    Diaz, just another legislator on the bench, and, maybe, soon to become a kool aide drinking anti death penalty spokesman.

    Comment by Dudley Sharp — December 23, 2008 @ 11:10 am

  2. Rebuttal to Balko:

    The Death Penalty Provides More Protection for Innocents
    Dudley Sharp, Justice Matters, contact info below
     
    Often, the death penalty dialogue gravitates to the subject of innocents at risk of execution. Seldom is a more common problem reviewed. That is, how innocents are more at risk without the death penalty.
     
    To state the blatantly clear, living murderers, in prison, after release or escape,  are much more likely to harm and murder, again, than are executed murderers.
     
    Although an obvious truism, it is surprising how often  folks overlook the enhanced incapacitation benefits of the death penalty over incarceration.
     
    No knowledgeable and honest party questions that the death penalty has the most extensive due process protections in US criminal law.
     
    Therefore, actual innocents are more likely to be sentenced to life imprisonment and more likely to die in prison serving under that sentence, that it is that an actual innocent will be executed.
     
    That is. logically, conclusive.
     
    16 recent studies, inclusive of their defenses, find for death penalty deterrence.
     
    A surprise? No.
     
    Life is preferred over death. Death is feared more than life.
     
    Some believe that all studies with contrary findings negate those 16 studies. They don’t. Studies which don’t find for deterrence don’t say no one is deterred, but that they couldn’t measure those deterred.
     
    What prospect of a negative outcome doesn’t deter some? There isn’t one . . . although committed anti death penalty folk may say the death penalty is the only one.
     
    However, the premier anti death penalty scholar accepts it as a given that the death penalty is a deterrent, but does not believe it to be a greater deterrent than a life sentence. Yet, the evidence is compelling and un refuted that death is feared more than life.
     
    Some death penalty opponents argue against death penalty deterrence, stating that it’s a harsher penalty to be locked up without any possibility of getting out.
     
    Reality paints a very different picture.
     
    What percentage of capital murderers seek a plea bargain to a death sentence? Zero or close to it. They prefer long term imprisonment.
     
    What percentage of convicted capital murderers argue for execution in the penalty phase of their capital trial? Zero or close to it. They prefer long term imprisonment.
     
    What percentage of death row inmates waive their appeals and speed up the execution process? Nearly zero. They prefer long term imprisonment.
     
    This is not, even remotely, in dispute.
     
    Life is preferred over death. Death is feared more than life.
     
    Furthermore, history tells us that lifers have many ways to get out: Pardon, commutation, escape, clerical error, change in the law, etc.
     
    In choosing to end the death penalty, or in choosing not implement it, some have chosen to spare murderers at the cost of sacrificing more innocent lives.
     
    Furthermore, possibly we have sentenced 25 actually innocent people to death since 1973, or 0.3% of those so sentenced. Those have all been released upon post conviction review. The anti death penalty claims, that the numbers are significantly higher, are a fraud, easily discoverable by fact checking.
     
    The innocents deception of death penalty opponents has been getting exposure for many years. Even the behemoth of anti death penalty newspapers, The New York Times,  has recognized that deception.
     
    To be sure, 30 or 40 categorically innocent people have been released from death row . . . (1) This when death penalty opponents were claiming the release of 119 “innocents” from death row. Death penalty opponents never required actual innocence in order for cases to be added to their “exonerated” or “innocents” list. They simply invented their own definitions for exonerated and innocent and deceptively shoe horned large numbers of inmates into those definitions – something easily discovered with fact checking.
     
    There is no proof of an innocent executed in the US, at least since 1900.
     
    If we accept that the best predictor of future performance is past performance, we can, reasonably, conclude that the DNA cases will be excluded prior to trial, and that for the next 8000 death sentences, that we will experience a 99.8% accuracy rate in actual guilt convictions. This improved accuracy rate does not include the many additional safeguards that have been added to the system, over and above DNA testing.
     
    Of all the government programs in the world, that put innocents at risk, is there one with a safer record and with greater protections than the US death penalty?
     
    Unlikely.
     
    Full report -All Innocence Issues: The Death Penalty, upon request.
     
    Full report – The Death Penalty as a Deterrent, upon request
     
    (1) The Death of Innocents: A Reasonable Doubt,
    New York Times Book Review, p 29, 1/23/05, Adam Liptak,
    national legal correspondent for The NY Times
     
    copyright 2007-2008, Dudley Sharp
    Permission for distribution of this document, in whole or in part,  is approved with proper attribution.
     
    Dudley Sharp, Justice Matters
    e-mail sharpjfa@aol.com 713-622-5491,
    Houston, Texas
     
    Mr. Sharp has appeared on ABC, BBC, CBS, CNN, C-SPAN, FOX, NBC, NPR, PBS, VOA and many other TV and radio networks, on such programs as Nightline, The News Hour with Jim Lehrer, The O’Reilly Factor, etc., has been quoted in newspapers throughout the world and is a published author.
     
    A former opponent of capital punishment, he has written and granted interviews about, testified on and debated the subject of the death penalty, extensively and internationally.
     

    Comment by Dudley Sharp — December 23, 2008 @ 11:12 am


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