Two levels of guilt determination in death penalty cases.

[joko104]

In Capital offense cases, generally there are two verdicts and in criminal cases often two trials. First, there is the question of guilt. If guilt, then the question of the sentence.

I think the problem many people have with the death penalty is that innocent people have been given it.

I'd like to see TWO levels of "guilty" that can be determined in death penalty cases.

The current standard of "beyond reasonable doubt / to a degree of moral certainty" does NOT require absolute certainly, just pretty damn certain.

I'd like to have a higher level of guilt necessary for the death penalty, somewhere along the lines of unquestioned certainty excluding supernatural possibilities.

There are cases where there is absolutely NO question the person did it. Such as someone caught doing a mass shooting, caught in the act, caught on video, etc. In those instances, the concerns of an innocent person being convicted are none.

This would ideally eliminate the prospect of an innocent person being executed. I think this could eliminate one very legitimate objection to the death penalty.

It could be as simple a choice of between "beyond reasonable doubt" OR "with certainty" as the two verdicts choice for the jury. It would be in 3 stages. The LONG "guilt or innocence" trial. If guilty, then the jury to decide if the evidence shows absolute certainty of guilt (and the law could place certain evidentiary requirements such as not based on circumstantial and/or just eye witness evidence). If the jury also finds absolute certainty, then and only then does the jury decide life sentence or death.

 

[ashurbanipal]

I like this idea in general. The only problem I see is that absolute certainty probably isn't attainable in any case. It's possible to formulate a skeptical position strong enough to deny practically any proposition. So there'd have to be an articulation of where the line should be drawn. I agree it should be much higher than usual standards of guilt before the death penalty could be given.

 

[Fisher]

Bifurcated sentencing and the long appeals process are the best you are going to get. For me the issue on whether or not someone should be put to death is whether or not the pose an increased risk of danger to the community if they escape, other inmates, and/or prison guards. If the murder they committed was particularly gruesome or the person has a general history or personality that makes it more likely than not he would kill again if given the chance, then death penalty is appropriate. If not, then I do not support it. I would be okay with doing away with life in prison too as long as there is a safety catch on the backside of a sentence that allowed the person to be continuously held in some fashion if they still posed a danger after a lengthy prison sentence.

 

[X Factor]

The only way to have 100% certainty is to have seen the crime yourself (and even there you could still have some doubt about what you saw) in which case you couldn't be a juror becasue you'd be what's called a "witness". Since I do support the death penalty, I cannot support making it moot by placing impossible standards on it. If we're going to do that, let's just be honest about abolishing it.

 

[X Factor]

I like this idea in general. The only problem I see is that absolute certainty probably isn't attainable in any case. It's possible to formulate a skeptical position strong enough to deny practically any proposition. So there'd have to be an articulation of where the line should be drawn. I agree it should be much higher than usual standards of guilt before the death penalty could be given.

Proof beyond a reasonable doubt is a high standard. To make it higher would require proof beyond even unreasonable doubt and that's just not, well, reasonable.

 

[joko104]

I like this idea in general. The only problem I see is that absolute certainty probably isn't attainable in any case. It's possible to formulate a skeptical position strong enough to deny practically any proposition. So there'd have to be an articulation of where the line should be drawn. I agree it should be much higher than usual standards of guilt before the death penalty could be given.

I understand, but, for example, to reach such an "absolute" verdict the statute could exclude the verdict not relying upon circumstantial evidence, eye witness and other less than perfect proof. While such language would then OFTEN exclude the death penalty, there are cases I think would qualify - particularly given all the cameras everywhere now.

 

[sharon]

Bifurcated sentencing and the long appeals process are the best you are going to get. For me the issue on whether or not someone should be put to death is whether or not the pose an increased risk of danger to the community if they escape, other inmates, and/or prison guards. If the murder they committed was particularly gruesome or the person has a general history or personality that makes it more likely than not he would kill again if given the chance, then death penalty is appropriate. If not, then I do not support it. I would be okay with doing away with life in prison too as long as there is a safety catch on the backside of a sentence that allowed the person to be continuously held in some fashion if they still posed a danger after a lengthy prison sentence.

Do you remember Pee Wee Gaskins in SC? He had his own graveyard for his victims.. women, children and some male relatives. He didn't get the DP until he killed someone in prison.

 

[sharon]

Bifurcated sentencing and the long appeals process are the best you are going to get. For me the issue on whether or not someone should be put to death is whether or not the pose an increased risk of danger to the community if they escape, other inmates, and/or prison guards. If the murder they committed was particularly gruesome or the person has a general history or personality that makes it more likely than not he would kill again if given the chance, then death penalty is appropriate. If not, then I do not support it. I would be okay with doing away with life in prison too as long as there is a safety catch on the backside of a sentence that allowed the person to be continuously held in some fashion if they still posed a danger after a lengthy prison sentence.

Do you remember Pee Wee Gaskins in SC? He had his own graveyard for his victims.. women, children and some male relatives. He didn't get the DP until he killed someone in prison.

 

[joko104]

Proof beyond a reasonable doubt is a high standard. To make it higher would require proof beyond even unreasonable doubt and that's just not, well, reasonable.

I do understand and language would be hard. The goal would be to try to avoid the fact that "truth can be stranger than fiction" and "people lie" leading to false convictions. Circumstantial evidence and other more questionable basis of determination sufficient for a conviction should not be sufficient for an execution. If such less-than-perfect evidence was precluded (which the judge could also make a determination on), it would reduce death penalty verdicts limited to basically how the jury feels about it and the defendant. The allowable evidence and required evidence for a death penalty would by statute be higher.

Possibly this goal could be obtained merely by statutes prohibiting allowing circumstantial evidence and eye witness evidence not collaborated by physical evidence being basis for a death penalty verdict. In that instance, the question of the death penalty would not even go to the jury as the judge could/should state that on the evidence and law there is no grounds for a death penalty verdict.

While I know many people oppose the death penalty for philosophical reasons in general, my own concerns of it are only the prospect of an innocent person being executed. I also might think that higher standard of allowable evidence for "life without parole" - rather than a life sentence but parole not barred might be a good idea. The growing number of innocent people in prison learned by advances in dna technology is troubling.

 

[Visbek]

There are several arguments against the death penalty, including:

1) It qualifies as "cruel and unusual punishment."
2) The state should not have the right to end the life of a citizen.
3) The death penalty is not about justice, it's about an emotionally driven demand for punishment and/or revenge.
4) The process cannot meet the required standards of certainty, i.e. the system is too flawed to justify an execution.

Obviously, no trial procedures address the first, second or third issue.

There is also no question that innocent individuals have ended up on Death Row, and it is arguable that at least one innocent man was executed (Carlos DeLuna).

(On a side note, I find it fascinating that many people who decry the efficiency of government happen to defend the efficiency of the criminal courts, including state and federal prosecutors, in handling death penalty cases....)

If you concede the first three, then you still need an extensive trial process to verify that you really, absolutely, utterly have caught the perpetrator(s). Adding a different standard during the trial itself isn't likely to suffice.

It also would require the prosecution to meet a much higher standard during the trial. By having a separate procedure for the sentencing, the jury has the opportunity to determine guilt separately from punishment. They can also consider factors like extenuating circumstances, or whether the convicted individual does or does not demonstrate remorse.

 

[Fisher]

Do you remember Pee Wee Gaskins in SC? He had his own graveyard for his victims.. women, children and some male relatives. He didn't get the DP until he killed someone in prison.

No, but it would not surprise me. I think part of the flaw now is that parole is not as widely available as it once was and that was a back-handed check on the jury's power to be excessive, so even if we err on the side of caution, there is no way to undo excessive sentences without opening up the floodgates. On death penalty cases, there is even less of a meaningful check because of the Courts' propensity to focus on the integrity of the process over actual guilt or innocence.

 

[X Factor]

I do understand and language would be hard. The goal would be to try to avoid the fact that "truth can be stranger than fiction" and "people lie" leading to false convictions. Circumstantial evidence and other more questionable basis of determination sufficient for a conviction should not be sufficient for an execution. If such less-than-perfect evidence was precluded (which the judge could also make a determination on), it would reduce death penalty verdicts limited to basically how the jury feels about it and the defendant. The allowable evidence and required evidence for a death penalty would by statute be higher.

Possibly this goal could be obtained merely by statutes prohibiting allowing circumstantial evidence and eye witness evidence not collaborated by physical evidence being basis for a death penalty verdict. In that instance, the question of the death penalty would not even go to the jury as the judge could/should state that on the evidence and law there is no grounds for a death penalty verdict.

While I know many people oppose the death penalty for philosophical reasons in general, my own concerns of it are only the prospect of an innocent person being executed. I also might think that higher standard of allowable evidence for "life without parole" - rather than a life sentence but parole not barred might be a good idea. The growing number of innocent people in prison learned by advances in dna technology is troubling.

Circumstantial evidence get's a bad rap but it can actually be stronger and better than direct evidence. Testimony is considered direct evidence. Let's say some you're at a convenience store and you see one guy chasing another guy. They both run behind the store and you lose sight of them. A few minutes later, you sees one of the guys with blood all over his shirt and holding a knife. You ask him what he's doing and he says he just slaughtered a cow (direct testimony), you walk behind the store and find the other guy dead on the ground with multiple stab wounds. Now, which is better evidence to you? What the guy says to you or that which you're able to deduce from the circumstances?

 

[Ikari]

In Capital offense cases, generally there are two verdicts and in criminal cases often two trials. First, there is the question of guilt. If guilt, then the question of the sentence.

I think the problem many people have with the death penalty is that innocent people have been given it.

I'd like to see TWO levels of "guilty" that can be determined in death penalty cases.

The current standard of "beyond reasonable doubt / to a degree of moral certainty" does NOT require absolute certainly, just pretty damn certain.

I'd like to have a higher level of guilt necessary for the death penalty, somewhere along the lines of unquestioned certainty excluding supernatural possibilities.

There are cases where there is absolutely NO question the person did it. Such as someone caught doing a mass shooting, caught in the act, caught on video, etc. In those instances, the concerns of an innocent person being convicted are none.

This would ideally eliminate the prospect of an innocent person being executed. I think this could eliminate one very legitimate objection to the death penalty.

It could be as simple a choice of between "beyond reasonable doubt" OR "with certainty" as the two verdicts choice for the jury. It would be in 3 stages. The LONG "guilt or innocence" trial. If guilty, then the jury to decide if the evidence shows absolute certainty of guilt (and the law could place certain evidentiary requirements such as not based on circumstantial and/or just eye witness evidence). If the jury also finds absolute certainty, then and only then does the jury decide life sentence or death.

This is essentially how Colorado approaches it and because so they do not have many people on death row. They crime must be sufficient enough to "warrant" death and the necessary burden of proof is huge. You pretty much need to record them in the act.

It's OK. It does go somewhat into addressing some of the concerns of the DP and if you have the DP, I think CO rules are the way to go. Still, I'd rather just not have it at all and avoid the whole mess.

 

[Paschendale]

Let's be honest, very few jurors understand the different levels of certainty we already have, nor do they really alter their decisions based on them.

 

[joko104]

No, but it would not surprise me. I think part of the flaw now is that parole is not as widely available as it once was and that was a back-handed check on the jury's power to be excessive, so even if we err on the side of caution, there is no way to undo excessive sentences without opening up the floodgates. On death penalty cases, there is even less of a meaningful check because of the Courts' propensity to focus on the integrity of the process over actual guilt or innocence.

I believe that last sentence is absolutely opposite the truth and how it works. I believe the Court is more interested in guilt or innocence more in death penalty cases than in any other. Otherwise, your's is just a backhand against the value of "the integrity of the process," which also is critical in a death penalty case.

 

[joko104]

Let's be honest, very few jurors understand the different levels of certainty we already have, nor do they really alter their decisions based on them.

Thus, statutory required thresholds of necessary evidential quality would allow/require judges (trial or on appeal) to assure the necessary standard of proof had been made. It would not be solely up to the jury, but then also the judicial review hierarchy.

 

[joko104]

Circumstantial evidence get's a bad rap but it can actually be stronger and better than direct evidence. Testimony is considered direct evidence. Let's say some you're at a convenience store and you see one guy chasing another guy. They both run behind the store and you lose sight of them. A few minutes later, you sees one of the guys with blood all over his shirt and holding a knife. You ask him what he's doing and he says he just slaughtered a cow (direct testimony), you walk behind the store and find the other guy dead on the ground with multiple stab wounds. Now, which is better evidence to you? What the guy says to you or that which you're able to deduce from the circumstances?

Eye witness testimony often considered by many people as the best evidence is actually considered among the worse evidence by many experts, particularly if of a stranger. That is why on my list I stated that a death penalty could not be based on circumstantial evidence and/or eye witness testimony that is not collaborated by physical evidence. Such evidence could allow a guilty verdict, but not the death penalty. The list of problems with eye witnesses is long and beyond just that people lie and the human brain isn't a video/audio recorder.

I'm not going to try to pretend I could write out such a statute, but "certain" proof would be the person caught and captured in the act or in direct pursuit after it or the crime captured on video tape as two rare - but happens - examples. I also do not think a confession should meet the death penalty threshold.

Who knows what a jury will do on any case? That is why statutory thresholds would allow and require the trial court and then appeals court to make a determination that there was a sufficient evidentiary basis for the verdict. In short, another safeguard against wrongly executions. Since it is known the system now is flawed in that regards, the question is how to improve it?

 

[Fisher]

I believe that last sentence is absolutely opposite the truth and how it works. I believe the Court is more interested in guilt or innocence more in death penalty cases than in any other. Otherwise, your's is just a backhand against the value of "the integrity of the process," which also is critical in a death penalty case.

Well, if that is the case, why is "ineffective assistance of counsel" about the only claims the appeals courts consider these days if they are worried about actual guilt or actual innocence?

 

[MaggieD]

In Capital offense cases, generally there are two verdicts and in criminal cases often two trials. First, there is the question of guilt. If guilt, then the question of the sentence.

I think the problem many people have with the death penalty is that innocent people have been given it.

I'd like to see TWO levels of "guilty" that can be determined in death penalty cases.

The current standard of "beyond reasonable doubt / to a degree of moral certainty" does NOT require absolute certainly, just pretty damn certain.

I'd like to have a higher level of guilt necessary for the death penalty, somewhere along the lines of unquestioned certainty excluding supernatural possibilities.

There are cases where there is absolutely NO question the person did it. Such as someone caught doing a mass shooting, caught in the act, caught on video, etc. In those instances, the concerns of an innocent person being convicted are none.

This would ideally eliminate the prospect of an innocent person being executed. I think this could eliminate one very legitimate objection to the death penalty.

It could be as simple a choice of between "beyond reasonable doubt" OR "with certainty" as the two verdicts choice for the jury. It would be in 3 stages. The LONG "guilt or innocence" trial. If guilty, then the jury to decide if the evidence shows absolute certainty of guilt (and the law could place certain evidentiary requirements such as not based on circumstantial and/or just eye witness evidence). If the jury also finds absolute certainty, then and only then does the jury decide life sentence or death.

So, a second vote by the jury:

"We do (do not) believe the quality of evidence presented rises to the level of guilt certain and, therefore, this defendant should be eligible for the death penalty."

I'd have to think of the ramifications of having something like that taking into account the appeals process. It would take a total revamp of our system, I think. But it might make sense.

 

[radcen]

In Capital offense cases, generally there are two verdicts and in criminal cases often two trials. First, there is the question of guilt. If guilt, then the question of the sentence.

I think the problem many people have with the death penalty is that innocent people have been given it.

I'd like to see TWO levels of "guilty" that can be determined in death penalty cases.

The current standard of "beyond reasonable doubt / to a degree of moral certainty" does NOT require absolute certainly, just pretty damn certain.

I'd like to have a higher level of guilt necessary for the death penalty, somewhere along the lines of unquestioned certainty excluding supernatural possibilities.

There are cases where there is absolutely NO question the person did it. Such as someone caught doing a mass shooting, caught in the act, caught on video, etc. In those instances, the concerns of an innocent person being convicted are none.

This would ideally eliminate the prospect of an innocent person being executed. I think this could eliminate one very legitimate objection to the death penalty.

It could be as simple a choice of between "beyond reasonable doubt" OR "with certainty" as the two verdicts choice for the jury. It would be in 3 stages. The LONG "guilt or innocence" trial. If guilty, then the jury to decide if the evidence shows absolute certainty of guilt (and the law could place certain evidentiary requirements such as not based on circumstantial and/or just eye witness evidence). If the jury also finds absolute certainty, then and only then does the jury decide life sentence or death.

Sounds good. SOUNDS good. I'd still oppose it. Many of those wrongfully executed in the past we just *knew* were guilty, and on the same level you propose here. So, no. If we were that good at accurately determining guilt then wrongful convictions wouldn't even be an issue.

 

[Hard Truth]

I oppose the death penalty because it very expensive and the deterrence effect is not significant enough to justify the cost. I also oppose it because it isn't applied equitably.

One of the ironies of the death penalty is that the worst mass and serial murderers, the ones most likely to kill again, end up in mental hospitals rather than in prison or on death row. IMO We need to eliminate the arbitrary separation between the penal and criminal mental health systems so that all convicts receive mental health treatment as needed.