THE DEATH PENALTY’S “FINELY TUNED DEPRAVITY CALIBRATORS” Fairness Follies of Fairness Phonies Fixated on Criminals Instead of Crimes — PART I

For naïve followers, the notion that capital punishment is unfair is an uncritically accepted faith based on logical fallacies, unwarranted assumptions and insupportable assertions. For knowing leaders, the demand for fairness is a cynical ploy intended to abolish the penalty rather than make it fair. 


NOTE: It is the reader’s choice whether to consult or disregard the many links below. The main goal here is to be easily understood, while providing proof for those who might think that what follows is fiction. This is written to enable easy reading without looking at the links.                                                                       Where possible, links are provided directly to specific locations within linked items. Otherwise, if available, specific page or part numbers within linked items are provided in parentheses next to links. Nearly all items are freely accessible.



              “The Court thus assumes the role of a finely tuned calibrator of depravity….”                                                                                                                                                                                                                                                      Justice Byron White


The assertion that capital punishment is unfair long has been a rallying cry for champions of duly convicted depraved murderers whose guilt is not in doubt. For example, following a fierce protracted struggle, Connecticut Gov. Dannel P. Malloy, who soon must finally face the voters, signed a capital punishment repeal statute in 2012. In doing so, he contended “that doing away with the death penalty was the only way to ensure it would not be unfairly imposed.” This mantra has been repeated again and again (“fairness and justice”).

For naïve followers, this is an uncritically accepted faith lacking internal consistency and empirical basis. It is based on fallacies, unwarranted assumptions and insupportable assertions. For knowing leaders, the demand for fairness is a cynical ploy intended to abolish the penalty rather than make it fair. If their words were ever taken seriously, the inevitable ludicrous result would be abolition of any punishment for any violent crime.


Gov. Malloy followed in the footsteps of other governors who defied the will of the great majority of their constituents.  And he also imitated similarly defiant United States Supreme Court justices.

Shortly before retiring in 1994, Justice Blackmun declared (1147, 1145) with characteristic judicial activist contempt for the public and the Constitution: “Although most of the public seems to desire, and the Constitution appears to permit, the penalty of death[,] I no longer shall tinker with the machinery of death.” He punctuated his arrogance by pronouncing his position to be “surely … beyond dispute” – notwithstanding a strong rebuttal (1141) by Justice Scalia and that no other justice joined him. Blackmun proclaimed capital punishment “unfair” because it “defies … rationality and consistency” and “does not accurately and consistently determine (1256) which defendants most ‘deserve’ to die” (emphasis added). (Ten years later, law professor Scott Sundby urged “moral accuracy” in addition to factual accuracy.)

Blackmun’s declaration was received with great acclaim by media predominantly hostile to capital punishment. In 2013, Emily Bazelon quoted Blackmun with approval in contending capital punishment could not be applied “fairly.”

In 1972, 22 years before Blackmun pontificated, Justice Stewart, voting to nullify all death penalty laws in 42 jurisdictions, famously declared: “These death sentences … so wantonly and so freakishly imposed … are cruel and unusual in the same way that being struck by lightning is cruel and unusual.”

Stewart later demanded a “principled way to distinguish [a] case, in which the death penalty was imposed, from the many cases in which it was not.” Robert Franklin Godfrey had shot and killed his wife and mother-in-law, and injured his fleeing 11-year-old daughter. Despite Godfrey having “acknowledged … the heinous nature of his crimes,” Stewart, asserted that these “crimes cannot be said to have reflected a consciousness materially more ‘depraved’ than that of any person guilty of murder.”

Dissenting, Justice White stressed critical facts ignored by Stewart in saving Godfrey, who had “employed a weapon known for … disfiguring …,” and “took out time not only to strike his daughter on the head, but also to reload … [H]is mother-in-law[’s] last several moments … must have been …terrifying. [She had] a substantial portion of her head missing and her brain … protruding for some distance onto the floor.”

This is what Stewart considered not especially “depraved,” prompting White to accuse the Court of “assum[ing] the role of a finely tuned calibrator of depravity…” (Emphasis added.)

Thus, in vivid language, White exposed a critical unproven assumption – or blatant assertion – underlying the “unfairness” refrain: that morality, conscience and values can be calibrated with mathematical and scientific precision. Years later, law professor Jeffrey L. Kirchmeier complained (458) of the inexactitude of capital sentencing “science.”

           The Court’s seizure of the role of depravity calibrator suffers from three basic defects: (1) It usurps self-government. (2) It relies on the premise that punishment for depravity is amenable to “fine tuning” – or any – calibration. (3) Applying that premise, the “calibrators” program highly disputable data into their “measuring instruments.”

Rampant judicial abuse of power is documented elsewhere, requiring no more than mention here. The notion that morality can be determined with the precision of an electron microscope merits only a brief comment upon its remarkable absurdity. Most of what follows will focus upon what is fed into the Fairness Phony computer, to demonstrate why this constitutes unwitting folly or cynical fraud.


At bottom, a criminal trial presents two questions. First, did the defendant commit the charged crime? Second, if he did, what should be done about it?  The first is a question of fact. A statement that he is guilty must be based on evidence. It may be correct or incorrect, true or false. By contrast, punishment is based upon the morality or values of those imposing it.

The first question concerns what is true. The second involves what ought to be done; and the answer cannot be said to be either true or false, but is, instead, a matter of right and wrong. Facts differ from moral and value judgments. Statements of fact can be proven true or false. Statements about what is right or wrong cannot, and are subject to profound and perpetual disagreement. (It is “seductive” for justices to convince themselves that what they want to be true is true; but that is for another article.)

One of the most absolutist anti-death penalty justices in history, William Brennan, referred to the issue of capital punishment as a “battle…waged on moral grounds [and] essentially a moral conflict.”  “Battle” and “conflict” suggest strong disagreement. If so, the notion that appropriate punishment can be “calibrated” with “moral accuracy” is absurd. That is why prescribed sentences for particular crimes, enacted by elected representatives, vary according to the values of different communities and states. The Supreme Court has declared that the jury expresses the “conscience of the community.” Obviously, different communities have different consciences based on different values. (As elaborated in Part VII, many justices have had far more regard for consciences that spare rather than condemn murderers.)

Few, if any, members of the clergy employ a calculator, computer or even an antiquated slide rule to sermonize about right and wrong before their congregations. The reason is obvious. Matters of right and wrong, justice and conscience are not amenable to computation by precision instruments.

Some assert that there are universally applicable “moral truths” and values. This article is no place to plunge into theological and philosophical debates. Relevant here is that, if there are such truths and values, there is no universal acceptance of what they are. Actually held moral values differ, often vastly, among individuals, ethnic and religious groups, cultures, societies and civilizations.

Consider abortion. A majority in this country supports legalized abortion. As recently as August 14, 2014, an article appeared in the Washington Post denying that a fetus had the “status of being” and that abortion is even a moral issue. By sharp contrast, large numbers of people do consider a fetus to be a human being and a very intense minority views abortion as murder.

Many former fetuses are thankful to have been allowed to be born and enabled to live productive and happy lives after Roe v. Wade. Would Justice Blackmun, Roe’s author – or any of his acolytes – seriously have applied the “machinery of death” attack on capital punishment to abortion and similarly argued that it “defies rationality” by failing to “accurately and consistently determine which fetuses most and least ‘deserve’ to” be born and allowed to live potentially rewarding lives? And would they have thus concluded that, because it is “unfairly administered,” abortion should be prohibited without exception? Not a chance! Why? Because the “pro-choice” concept is based on the view that, exactly because abortion is a matter of morality and values that cannot be determined by any formula, the decision must be made by each potential mother.

Clearly, deep differences exist regarding the value placed on human life. At first blush, in the United States, these differences might appear limited to fetuses. Elsewhere, a favorite slogan of suicidal terrorists is that “we love death more than you love life.” Although our culture seems to value life very highly, a value abused by terrorists to their advantage, there is a major exception. Depraved murderers here also have little or no regard for human lives (aside from their own). That’s why they are generally considered depraved. But it’s worse, as shown by this recent headline: “Teen misses rival & shoots innocent bus rider dead as friends laugh.”

And still worse!! Dominant judges, academics and media personages have a similar view of the lives of law-abiding individuals.  These supercilious elitists adjudge the lives of murderers, upon whom they unabashedly (xvi) lavish “love,” to be precious, while placing little or no value on victims’ lives. Justices Brennan and Marshall, who joined Justice Blackmun’s dismissive assessment of the human status of fetuses, opposed capital punishment for convicted barbaric murderers because they are “members of the human race” and not “nonhumans… to be … discarded. [E]ven the vilest criminal remains a human being possessed of common human dignity.” No kidding! Brennan and Marshall saw no difference between a lawful execution and the unlawful savagery for which it was imposed. Both were equally “shocking.” More recently, a typical criminal “justice” professor objected to those lacking mercy for convicted murderers; Michael Campbell considers it wrong that politicians sound a “populist theme that those who do terrible things deserve to have terrible things happen to them.” Unwittingly, this shows how condescendingly elitist Fairness Phonies are. The substantial popular majorities favoring capital punishment must be denigrated with a word that has a “mob rule” connotation. Nevertheless, mere supercilious assertions do not explain why unrepresentative elite values should prevail in a representative democracy.

If death penalty supporters constitute a populist majority “mob,” so be it. With opposite morality, they need make no apologies for valuing very highly the lives of decent innocent victims and very little – or not at all – those of convicted brutal murderers. Actual witnesses to murder of loved ones, such as the movingly eloquent Catherine Burke, believe they have every right to consider murderers to be not even human.

The bottom line is this. How can morality be “accurately calibrated” in the face of sharp and deeply held disagreement about the values to be calibrated? Remarkably, the final words of an executed convicted murderer, Napoleon Beazley, included this insight into a reality incomprehensible to ivory tower professors and judges: “The people who support [my execution] think this is justice. The people that think that I should live think that is justice. … [T]his is a clash … with both parties committed to what they feel is right.”

Because issues of right and wrong are deeply divisive as well as not subject to being labeled true or false, it is absurd or disingenuous to seek “accurate” morality. As long as an “unbridgeable values chasm exists between victims of the worst crimes and the zealous devotees of their depraved victimizers,” it is either folly or deceit to talk about fairness as though it were subject to precise calibration, let alone agreement.

However, before examining calibration follies, it must be emphasized that this article addresses fairness in sentencing the guilty. This special emphasis is required by a media-abetted Phony effort to convince the public that capital punishment is unfair because executions of the innocent are rampant. They are not.




          Lester Jackson, Ph.D., a former college political science teacher, views mainstream media truth suppression as essential to harmful judicial activism. His recent articles are collected here.                                                                                                           _______________________________________

Copyright ©: 2014  Lester Jackson, Ph.D.

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