Opponents of capital punishment have succeeded in keeping the emphasis on the possibility of executing an innocent person, instead of the lives that have already been taken by those spared the death penalty.
What is the absolute worst that could go wrong by exercising the death penalty for society’s most serious offenders? The answer is obvious: making the ultimate mistake by executing innocent persons.
What is the absolute worst that could go wrong by not having a death penalty for society’s most serious offenders, such as convicted murderers? The answer should also be clear: those spared could repeat their murderous deeds.
The former wrong, execution of wrongly convicted people, has never been proven to have happened in the United States in the modern era. Indeed there is no conclusive evidence or definitive proof of it ever happening in the 20th Century. The latter wrong, actual murders occurring as a result of death row prisoners being spared, has happened numerous times. Yet despite these facts, opponents of capital punishment have succeeded in keeping the emphasis and resulting concern on the possibility of executing an innocent person. This is partly due to the fact that some innocents have been sentenced to death and later exonerated. However, the anti-death penalty crowd lacks a single case to point to in which a wrongful execution has occurred. None exist.
If the public knew these facts – that innocent victims have died and are much more likely to die due to non-executions, than innocents being executed – it is doubtful support for the death penalty would have eroded in recent years.
California, perhaps more so than any other state, has witnessed several occurances of spared death row inmates raping and murdering anew. Setting the stage for these horrific crimes were several anti-death penalty rulings by a very pro-defendant, judicially-active California Supreme Court in the 1960s and 1970s. In January of 1964 the court ruled that it was improper for a jury to consider the “protection of society” argument when contemplating the death penalty after a murder conviction. This prosecutorial appeal stressed that a convict might repeat his offense if not put to death. In People v. Morse, teenaged killer Joe Morse had his death sentence overturned because the district attorney who prosecuted him had used the protection of society argument to help secure the death sentence. Morse had beat his mother and crippled sister to death with a baseball bat and rock. In an incredible irony, Morse went on to vindicate the DA and his “protection” call by garroting a jail trustee in August of 1964 while waiting for the conclusion of his second penalty trial. If Morse’s first death sentence had been upheld, the life of Thomas L. Toddei would have been saved.
The California Supreme Court’s aversion to capital punishment climaxed in a historic 1972 decision that declared the state’s death penalty law unconstitutionally cruel and unusual. One hundred-and-four death sentences were overturned, including those of notorious murderers Charles Manson and several of his family members, and Robert F. Kennedy assassin Sirhan Sirhan. Chief Justice Donald Wright wrote for the majority in a 6-1 decision laden with personal opinion and usurping the will and power of the California legislature:
It [capital punishment] degrades and dehumanizes all who participate in its process. It is unnecessary to any legitimate goal of the state and is incompatible with the dignity of man and the judicial process. Our conclusion that the death penalty may no longer be exacted in California is not grounded in sympathy for those who would commit crimes of violence but in concern for the society that diminishes itself whenever it takes the life of one of its members.
This case, The People v. Robert Page Anderson, is widely regarded as having influenced the U.S. Supreme Court when it overturned state death statutes nationwide later that year in a very controversial decision – Furman v. Georgia. Like with Furman (another story), the Anderson case would prove deadly for some.
On January 3, 1979, Robert Lee Massie shot and killed Twin Peaks liquor store owner Boris Naumoff. Massie pled guilty to the murder and was sentenced to death but the conviction and sentence were overturned by the California Supreme Court under Chief Justice Rose Bird, a notorious death penalty foe. Unbelievably, the Bird court declared that Massie couldn’t plead guilty over the objections of his trial attorney. Massie was retried in 1989 and recanted his confession. He was convicted and sentenced to die again. In October of 2000 he dropped his appeals and was executed on March 27, 2001.
Boris Naumoff would never have been murdered if Massie had had his very first death sentence carried out. On January 7, 1965, Massie shot to death Mildred Weiss during a robbery outside her San Gabriel home. He was sentenced to die and even insisted on being put to death. In 1967 Massie came within 16 hours of execution when governor Ronald Reagan granted him a temporary reprieve so he could testify at the trial of his co-defendant. Massie was still awaiting execution when the state’s top court cleared death row in the 1972 decision. Massie was paroled in 1978, less than a year before killing Naumoff.
On November 14, 1978, Arminda Wiltsey, a 40-year-old wife and mother, went jogging at Lafayette Reservoir near Walnut Creek, California. She never returned home. Wiltsey was found strangled. She had also been raped. Skin from the killer had been found under her fingernails but for years the murder went unsolved. However in the summer of 2003, DNA from the assailant’s skin was matched to a Texas inmate, Darryl T. Kemp. Kemp was serving a sentence for multiple rapes. Kemp had been on California’s death row for a strangulation murder and several rapes in 1960 when he too was spared death by the Anderson decision. He was paroled in 1978, less than four months before Wiltsey was murdered. Kemp, 71, has been extradited to California and currently awaits trial in March of 2008 for Arminda Wiltsey’s brutal murder. The prosecution plans to seek the death penalty.
Judicial decisions are not the only way condemned inmates are spared. There is also executive clemency, which can create the same threat to innocents. California governor Edmund G. “Pat” Brown granted clemency to 23 condemned men in his eight years in office (1959-1967). One 8-time rapist, Edward Simon Wein, was eventually paroled and drowned a woman in her bathtub. He was captured after sexually assaulting, beating, stabbing and nearly drowning another woman. Brown had this to say years afterward: “Even now, twenty-five years later, I still can’t decide whether I would have let those twenty-three prisoners die if it meant saving the life of that one woman.” Such moral squeamishness over life and death decisions for men convicted of the most evil of crimes helped lead to the rise of Ronald Reagan, for it was Reagan who defeated Brown in the 1966 gubernatorial race and the death penalty was a major campaign issue. California voters were angry with Brown’s many death commutations.
In recent years many supporters of capital punishment have moved into the opposition’s camp out of fear of executing the innocent. While this is always a possibility with the death penalty, the likelihood of this actually happening is very remote. When one takes into account what hasn’t happened (no established executions of innocents), and compares that to what has (untold numbers of innocents killed due to failure to execute), the decision to oppose capital punishment becomes virtually indefensible. The late California Supreme Court Chief Justice Donald Wright and his colleagues couldn’t have been more wrong when they declared capital punishment “unnecessary to any legitimate goal of the state.” I am sure the families of Boris Naumoff, Arminda Wiltsey and numerous others in California and throughout the nation would concur.
Sources
1. Booth, Claire, “Charges Filed in 1978 Case: DNA Points to Serial Rapist in Murder,” Contra Costa Times, October 5, 2003.
2. Booth, Claire, “Death Row Reversal: Prisons’ `Class of ‘72’ is Lost to History,” Contra Costa Times, December 2, 2003.
3. Brown, Edmund G., Public Justice, Private Mercy, Weiderfeld & Nicolson, New York, 1989.
4. The People v. Robert Page Anderson, Crim. No.13617, Supreme Court of California, 6 Cal. 3d 628; 493 P. 2d 880; 100 Cal. Rptr. 152; 1972 Cal. Lexis 154, February 18, 1972.
5. Veselenak, Aaron, email correspondence with Mark Peterson, Assistant District Attorney, Contra Costa County, California, February 12, 2007.
6. Wolfe, Burton H., Pileup on Death Row, Doubleday & Company, Inc., Garden City, New York, 1973.
7. Zamora, Jim Herron, Pamela J. Podger, Harriet Chiang, Chuck Squatriglia, “Massie Executed for 1979 S.F. Murder: Witnesses See Procedure from Beginning to End,” San Francisco Chronicle, March 28, 2001.
aaronjveselenak@hotmail.com
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INNOCENTS MORE AT RISK WITHOUT THE DEATH PENALTY
Because innocents are at risk of executions, some wrongly presume that innocents are better protected implementing a life without parole sentence, instead.
What many forget to do is weigh the risk to innocents within a life sentence. When doing that, we find that innocents are more at risk with a life sentence.
First, we all know that living murderers, in prison, after escape or after our failures to incarcerate them, are much more likely to harm and murder, again, than are executed murderers.
Secondly, no knowledgeable party questions that the death penalty has the most extensive due process protections in US criminal law.
Therefore, it is logically conclusive, that 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.
Thirdly, 12 recent studies, inclusive of their defenses, find for death penalty deterrence. Some believe that all studies with contrary findings negate those 10 studies. They don't. Studies which don't find for deterrence don't say no one is deterred, but that they cannot measure those deterred, if they are.
Ask yourself: "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. I find the evidence compelling that death is feared more than life - even in prison.
In choosing to end the death penalty, or in choosing not implement it, some have chosen to put more innocents at risk.
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Furthermore, possibly we have sentenced 20-25 actually innocent people to death since 1973, or 0.3% of those so sentenced. Those have been released upon post conviction review. There is no proof of an innocent executed in the US, at least since 1900.
Of all the governments programs in the world, that put innocents at risk, is there one with a safer record? Unlikely.
Comment by dudleysharp | November 18, 2007
Although I am glad that a number of recent studies confirm the not-particularly-unintuitive concept that negative consequences are a deterrent, one has to ask "what if the death penalty didn't deter?"
And therein lies the crux of the issue. Arguments that relegate the death penalty simply to a pragmatic discussion of whether it deters unwittingly give credence to the anti-death penalty crowd. I.e., it doesn't address the inherent issue of justice or morality - only a set of actuarial statistics that make the death penalty appropriate or inappropriate based simply on statistical evidence. That turns it from a discussion on morality to a discussion for actuaries.
Death penalty opponents are quick to dismiss proponents as childish and brutish - people who merely want vengeance. Sadly, many even use the Bible to support this notion that those who believe in capital punishment are less charitable, forgiving, and merciful.
The death penalty predates Leviticus and the 10 commandments. Nor did the New Testament somehow "set aside" this law. One of government’s primary functions in scripture is to appropriately wield the sword.
The problem with those who start pontificating about "mercy over justice" is that they always focus on the individual, never on the larger unmerciful implications for society as a whole. When we "spare" a life, how many others are we sacrificing in the process through the environment we create?
And why, if life without parole is worse than death (as some insist), do those in prison work so feverishly to prolong their life through endless appeals? And why do those same death penalty opponents typically fight so hard for “humane” conditions in prisons? Something doesn’t add up there.
The human psyche is wired to have an innate sense of justice just as surely as it is wired to seek and understand love and validation. We don't have to be taught that something is unjust. We simply know it, and this is why children in particular are masters at knowing whether their sibling has one more microgram of ice cream on their cone or two more marshmallow chunks in their bowl of Lucky Charms cereal. When this innate sense of justice is continually assaulted by a legal system that under-punishes, the collective psyche of the governed begins to change.
This is why the Bible so often links the concepts of justice and national despair in so many places.
I could list a dozen pragmatic reasons why the death penalty is appropriate. But those types of arguments should simply be the practical evidence of the inherent morality of capital punishment - not the philosophical basis for it.
Comment by Steve Sabin | November 18, 2007
Scholars in my state believe that 8 people in NY were wrongly executed prior to 1963. Recently there have been several cases in Texas where journalists, law professors etc believe innocents were executed. DNA is only recovered in 10 percent of murder cases. The cases where there are questions now are non DNA cases so of course there is no definitive answer. The Texas district attorney who prosecuted the Rubin Cantu case believes an innocent man was executed. Life without parole protects society, Lifers are historically the least viiolent prison population. In my home state a correction officer has not been murdered for 26 years. Most district attorneys fight reopening cases when questions of innocence arrise and they are often successful. The Supreme Court has held that you it is not unconstitutional toute an innocent person. There are no guidlelines in the states with executions as to how to deal with the mentally ill.
Comment by jgny | November 18, 2007
Dear Mr. Sabin:
I was only dealing with deterrence and the two additonal ways in which the death penalty protects innocents more than a life sentnce.
The foundation for the death penalty is the same as it is for all other sanctions, that is a just and appropriate sanction for the crime committed.
This really doesn't benefit the anti side, at all. The antis long abandoned their moral arguement as a usable tool in their arsenal, because it didn't work. They now attack the implementation of the death penalty, arguing that it just isn't supportable because of various systemic errors. However, the pros have proven virtually all of those arguements to be false
I agree with your additonal evaluations.
Comment by dudleysharp | November 18, 2007
Igny:
Your scholars certainly haven't proven those 8 to be innocents executed. As you said, they believe, like those Texas cases. Belief is very different than proof and evidence.
There is no proof of an innocent executed in the US, at least since 1900. However, the proof is overwhelming and uncontradicted that many innocents have been murdered by those murderers we have allowed to live.
As you may not know, the Cantu claims were thorughly reviewed for about a year and a report was issued, finding the claims of innocence to be wthout merit. That is routine with the overwhelming majority of these claims, which are usually the product of vivid imagination, one sider reviews and/or outright deceptions.
You mention lifers have not murdered any corrections officers in your home state for 26 years. What is your home state? . How many prison guards, other priso personel, visitors, and other prisoners were murdered or harmed by lifers during that period? How many lifers escaped and harmed and/or murdered others during and after their escape?
District attorneys fight and are successful in opposing the reopening of cases of alleged actual innocence because they prevail on the fact issues and for no other reason. We don't want to reopen cases based upon frivolous evidence, do we? And we want cases reopended when the evidence merits it, as well.
I think you misinterpret the Supreme Court when it comes to executing innocent people. Obviously, it is unconstitutional to execute an innocent person, when the evidence shows they are innocent.
And there are specific guidlines in all states, when dealing with evidence of mental illness.
I don't know where you get your "facts", but I suggest that you fact check them before presenting them.
Comment by dudleysharp | November 18, 2007