Date: Tue, 4 Sep 2001 06:47:47 EDT From: freemanaz@aol.com Subject: [lpaz-discuss] The Death Penalty To: lpaz-discuss@yahoogroups.com Reply-To: lpaz-discuss@yahoogroups.com
Subject: The Death Penalty Date: 7/21/01 10:44 AM US Mountain Standard Time From: <A HREF="aol://3548:Weaselaw">Weaselaw</A> Message-id: <20010721134442.17972.00000963@ng-md1.aol.com>
I recently submitted this article to the LPNews. I don't know if they'll publish it (after all, it does nothing to apologize fr recent or current mismanagement, the LPNews' sworn mission.)
However, here it is, for those who are interested:
A Proposed Platform Plank on the Death Penalty That All Libertarians Should Approve by Clay S. Conrad (1)The Libertarian Party, since its inception, has abstained from taking a position on capital punishment. The Party has done so because of a split in opinion among the membership. Essentially, there have been two sides to this argument. The pro-capital punishment side sees te death penalty as a just dessert for those who have so heinously violated the rights of their victims. The anti-capital punishment people have decried trusting this or any Government with such absolute power over its citizens. The anti-capital punishment side speculates that mistakes are inevitable and therefore innocent people will be killed; the pro-capital punishment side speculates that the deterrence effect of the death penalty outweighs the risk of mistakes. The anti-capital punishment side retorts that the death penalty has little or no proven deterrence effect; the pro-capital punishment side retorts it has never been proven that innocent people have been executed.
The argument about the death penalty has come to a draw, and (much as in society at large) the two sides will probably never agree. However, it is beyond any reasonable dispute that the laws of this country should guarantee that everyone - even those accused of capital murder - must receive a fair trial, and due process of law, before being punished. These concerns are greatest when the punishment is death. No Libertarian could possibly support a death penalty that is not fairly administered.
STACKING THE JURIES Unfortunately, the arguments over the death penalty within the Libertarian Party (as in society at large) have ignored how the death penalty is actually administered. This is tragic. Here, as elsewhere, the devil is in the details. The death penalty system in this country works, as a practical matter, by stacking the jury against the defendant. A trial before a jury so stacked is not the trial by jury guaranteed in the Constitution, the Bill of Rights, and the Constitution of every State in the country. But this jury stacking has been allowed because in the 1986 case of Lockhart v. McCree (2), the Supreme Court perversely held that the interest of the State in carrying out its death penalty outweighs the rights of the accused to a jury fairly representative of the community.
This is not just the uniform jury selection abuses that take place in other cases. In routine cases the judge and (usually) the attorneys for both sides question potential jurors, requiring that they divulge intimate and often embarrassing and irrelevant details of their lives, their families and their opinions before a public forum. Those who state they are unable or unwilling to follow the law are disqualified for cause. The parties then may peremptorily excuse a number of the remaining jurors, whom they believe are likely to favor the other side. The first twelve (or six or eight, depending on the case and the jurisdiction) people remaining serve on the jury.
These procedures are abused in practically every jury trial, civil or criminal. But what occurs in a capital case goes far beyond this, into a procedure that allows only the most conviction-prone elements of society to serve as jurors. And that procedure is one that fails to comport with any plain reading of the Constitution or Bill of Rights, and which fails to provide due process or fundamental fairness to the accused.
In a capital case, every individual with any substantive qualms about inflicting death is disqualified from jury duty during a process called death qualification, in which the State gets to grill every potential juror about their religious and moral sentiments related to the infliction of death. Any potential juror who would find it difficult to sentence a man to die, or who states they would require more certainty to sentence a ma to die than to sentence him to prison, can be disqualified from jury duty. Nothing like this occurs in any other sort of case. The argument runs that because they would consider a capital case with profound seriousness and would only sentence a man to death under the most egregious circumstances they are substantially impaired in carrying out their duties as a juror. Yet, what sort of person is left when those who consider the death penalty with fear and trepidation are removed?
PRODUCING A PALPABLY BIASED JURY It is easy to see how this practice produces a jury that is biased against the defendant. Statistics show that while slightly more than half of all Americans favor a death penalty, about 45% oppose having one. However, many of those favoring a death penalty believe it should not be used as broadly as it currently is. Many people - including conscientious supporters of capital punishment - believe capital punishment should be approached only with the utmost solemnity, and that the death penalty should be reserved for the worst of the worst. Their feelings about capital punishment could substantially impair their deliberations, especially in a case where the arguments for inflicting the ultimate penalty are marginal. These citizens, capital punishment supporters, could be disqualified, as a matter of law, from jury service in a capital case because of their belief that the death penalty be applied sparingly and cautiously.
Of course, once those who are so disqualified are eliminated, the prosecution can use their peremptory strikes (3) to remove those with lesser objections. The defendant also has peremptory strikes, but they are not sufficient to overcome the gross advantage death qualification gives the State. The jurors remaining at the conclusion of this process are not only willing, but in many cases eager, to impose the ultimate penalty. The resultant jury leans so far towards the prosecution that a fair trial is nearly impossible.
Capital jury selection often take weeks, if not months, as conscientious objectors are winnowed out by the State. Women and minorities are removed from panels at a much higher rate than white males. (Perhaps as a result of this, capital juries are approximately 43% more likely to sentence a killer to die if his victim is white than if his victim is a member of a minority.) The resultant jury does not represent the demographics of the community either racially or ideologically. It cannot represent the conscience of the community. Numerous studies have shown that death qualified juries are inherently biased towards conviction. This is not difficult to understand. People who have no qualms about the death penalty tend to favor the State. They would be more likely to convict in a jay-walking case. They predominantly believe prosecutors and police are their friends and that everyone on the defense side is as guilty as the defendant (whom they know would not be there if he was not guilty, because where theres smoke, theres fire.(4)) Considering the palpable bias that exists on capital juries, is it surprising so many Americans have been released from Death Row after a more careful examination of the evidence reveals that they are actually innocent?
The Supreme Court believes that the interest of the accused in being tried before an unbiased jury of his or her peers has to give way to the States interest in carrying out its death penalty. If those with qualms about the death penalty are allowed to serve on the jury, the logic goes, the death penalty would seldom if ever be invoked. Juries would nullify the death penalty, refusing to sentence people to die, sparing their lives for reasons the State does not consider adequate. However, these arguments reveal that the Supreme Court does not believe that the community at large supports the death penalty as it is being applied. Perhaps they know something we should know.
SILENCING THE CONSCIENCE OF THE COMMUNITY
Isnt expressing the moral judgment of the community the job of the jury? The jury - acting as the communitys conscience - is to decide whether a defendant deserves execution. There is no more awesome role for juries than to make this decision, a decision that should justly be placed only before a conscientious, representative panel chosen from the community at large. But because the community at large does not agree with the State as often as the State would like, the State only allows those who are most sympathetic with the States position to serve as jurors in capital cases. The community at large is silenced. Is this fair?
These procedures turn the time honored practice of trial by God and Country on its head. Only those who support the State are allowed to serve - no critics need apply. You have doubts that the death penalty is just? You think the death penalty may be over-used? You think that each case must be viewed on its own merits, with a strong presumption against the death penalty until the State proves to you that it is justified? The Supreme Court not only does not want to hear your opinion - the Court does not even want to allow you to speak. At least, not on a jury, where your opinion could make the difference in a matter, literally, of life and death.
Instead of requiring the State to prove to a representative jury that the defendant being tried deserves the death penalty, the Court has made the States job far easier. By removing anyone who might question the death penalty, the State now only has to DISprove that this is a case in which an exception should be made. The State is ensured of a jury that supports their position from the start, unless the Defense can provide so powerful a case that the jurors change their minds. But it is the State, not the Defendant, who should have to bear the burden of proof, who should have to fight the uphill battle. The Court has, as a practical matter, allowed the State to place the burden of proof on the accused.
A LIBERTARIAN OBJECTION TO DEATH QUALIFICATION As Libertarians, we have to ask ourselves whether we, as a party, can condone the practice of putting our fellow citizens to trial before hanging juries, stacked against the accused and sworn to execute. If we believe, as we claim, in Liberty and Justice for all, must we not proclaim the right of the guiltiest and vilest among us to a trial before a fairly selected jury? Can we not agree that before the State can condemn a man to die, they must first convince a fairly selected jury representative of the community at large that the defendants guilt merits the death penalty? Must we not publicly condemn the practice of death-qualifying juries in capital cases?
I recognize that there are Libertarians who approve of the existence of a death penalty. However, this death penalty - the death penalty that actually exists in America - is one that no Libertarian can support. It is premised wholly upon jury stacking and jury manipulation. This practice must end.
I submit that at the next Convention of this Party, the platform should be amended to come out, once and for all, against this egregious practice of death-qualifying capital juries. Let us insist that capital defendants face juries at least as fair as the juries that sit in other cases. The time has come, and the evidence is great. If we are the party of principle, we can not sit by silently and watch as our fellow citizens are executed, without first having received the benefit of a trial before a fairly selected jury.
As Libertarians, we should insist that, if there s to be a death penalty, it meet the highest standards of fairness and justice. Eliminating death qualification would not be enough to meet that goal. We would still, for example, need to address the restrictions on the writ of Habeas Corpus that have in many cases eliminated meaningful appellate review (even when newly available evidence such as DNA undermines the reliability of underlying convictions), and require that lawyers representing capital defendants at least remain awake throughout trial. Ending the radically unfair practice of stacking capital juries would be a good place to start.
---- (1) Clay S. Conrad, Esq., a partner with the law firm of Lamson & Looney in Houston, Texas, is the author of Jury Nullification: The Evolution of a Doctrine (Carolina Academic Press, 1998) as well as numerous articles about juries. Mr. Conrad has been involved in the Libertarian Party since 1986, and was a member of the LP National Committee from 1991-1993. He presently serves on the Board of Directors of the Fully Informed Jury Association.
(2) 476 U.S. 162 (1986).
(3) Peremptory strikes are used to remove potential jurors without cause, based on an appearance or intuition that the juror would be less likely to vote your way. In Texas, the most aggressive death penalty state, both sides have fifteen such strikes.
(4) The jurors remaining are usually described as conservatives. Their trust of the State with the power to kill would seem to belie the usual false claim that conservatives are distrustful of government. They are better described as right-wing authoritarians.
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