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

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


            Make no mistake about it. Wrongful conviction allegations are not made out of anxiety about anyone wrongfully convicted. Instead, the single-minded Fairness Phony objective is to abolish the death penalty for the overwhelming majority who are clearly guilty. Using endless repetition, one tool is to shield the guilty under the umbrella of the infinitesimal number of those convicted of murder who may be not guilty. The Phonies have convinced many who do not have the time or desire to scrutinize their claims. There is no need to repeat what numerous others have addressed: the falsity of most innocence contentions.

            Death penalty supporters obviously do not seek execution of innocent people. The critical issue here is whether executing the guilty is fair, period. That, and only that, is what this article is about.  

            Murderer advocates are just that: advocates for murderers. So again, no one should think that opposition to capital punishment by activist Fairness Phonies has anything to do with guilt or innocence. Yet they have had a field day calling for the end of capital punishment when DNA has shown someone was wrongfully convicted (but never actually executed). However, with the increasing reliability of scientific tools, would these opponents agree to the death penalty when DNA conclusively demonstrates guilt? Of course not!! 

            On May 28, 1995, Lesley Stahl of 60 Minutes asked murderer advocates Barry Scheck and Peter Neufeld how they could argue that DNA must be used to prove innocence but not to prove guilt. Like Clarence Darrow and Rose Bird (later, Parts VI, VII), they did not bat an eyelash. They responded that DNA is reliable in proving innocence but not guilt. But when not directly cornered, Scheck declared that DNA must be used to disprove guilt in order to “find the person who really committed the crime.” Is anyone so gullible as to believe that Scheck would agree that any actual murderer should ever be executed? 

            Not all murderer advocates are quite so shamelessly two-faced, at least not when communicating with each other. For death penalty abolitionists, DNA has provided a public relations windfall. But this has mostly applied to convictions that took place before DNA proved so reliable and routine. The more forthright opponents have openly conceded and warned that, from their point of view, DNA is a time bomb. Ultimately, old cases will all be resolved. What about new cases where DNA conclusively proves guilt?  

            Carol and Jordan Steiker feared the “peril” that, as DNA increased confidence in convictions, this could “salvage” (622) rather than lead to abolition of capital punishment. Bryan Stevenson cautioned (25) that it is “misguided” to focus on the “wrongly convicted” because, in his view, no murderer should be executed.

            Ultimately, then, Fairness Phony efforts aim to save the guilty rather than the innocent. No abolitionist would ever agree that capital punishment is appropriate, even when evidence of guilt is not just beyond a reasonable doubt but “overwhelming.” Indeed, that is the very definition of “abolitionist.”

            Although the Fairness Phonies seek precise accuracy in sentencing those they concede are guilty, the Steikers have objected to efforts to assure the factual accuracy of determining guilt in the first place. Yes, they genuflect to concerns about convicting the innocent. But their real protest is against (612) “shift[ing] constitutional criminal procedure toward limiting the vindication of constitutional values … in tension with[] verdict accuracy.” For them, convicting the guilty takes a back seat to “promoting abstract values (such as dignity, fairness, or equality) [even] at the expense of accuracy in criminal trial verdicts.”

            Translated into plain English, as will be further shown (e.g., Part III), the legal system has been hamstrung by judicially invented “constitutional” rights nowhere found in the Framers’ creation. These so-called rights are often confined to blocking conviction of the guilty. And for Phonies, if the guilty go completely free, so much the better. This is not about trade-offs that free some guilty in order to guard against convicting the innocent. This is about protections solely for the clearly guilty, period.

            Judicial murderer advocates have made this clear. For example, in 1977, repeat rapist Ricky Knapp murdered Linda Jill Velzy, an 18-year-old college girl. He confessed three times and was caught in the act of exhuming her body for re-burial in what he thought was a better hiding place. In overturning his conviction, a bare majority of New York State’s highest court judges conceded that the evidence against Knapp was “overwhelming” (173, 177). On more than one occasion, New York high court judges have granted total freedom to murderers whose guilt was supported by overwhelming proof. (Later, Part IX.) 

            U.S. Supreme Court justices also have directed their efforts at saving the guilty rather than rescuing the wrongfully convicted. In 1968, four years before five justices invalidated all existing death penalty statutes, six justices reversed the death sentence of a cop killer. But they stressed that they were not “render[ing] invalid the conviction, as opposed to the sentence, in this or any other case.” Even overtly anti-victim Justice Stevens (joined by O’Connor, Souter, Ginsburg and Breyer), acknowledged (321) “the fact that habeas corpus petitions that advance a substantial claim of actual innocence are extremely rare …‘[A]lmost never suggested … is that the prisoner was innocent ….’” Notwithstanding the presumption of innocence, Stevens even conceded: “Experience teaches us that most people formally charged with crime are guilty.”

            In sum, because Fairness Phonies revile any execution as unfair, their focus is not on avoiding wrongful conviction but on minimizing sentencing of the rightfully convicted. Again, that is what this article is about.


            Notwithstanding espousal by many justices, often a majority, and countless academics, the worst that can be said about the contention – that fairness can be accurately calibrated – is that it is absurd if not outright delusional. In 1971, just one year before five colleagues declared a still ongoing decades-long guerilla war (185) against capital punishment, Justice Harlan observed that there could be “no simple formula” to identify cases calling for the death penalty.

            (A) The Paramount Value: Because Victims Don’t Count, Don’t Count Victims

            “Garbage-in/garbage-out” is a term coined because no calculator can yield results any better than the data fed into it. Because any formula or computer model for “accurately” calibrating morality is going to depend on its criteria, the line is crossed from the silly to the sinister when confronting actual proposed concrete fairness factors. In reality, these factors are nothing but the value judgments of the programmers. Fairness Phonies themselves thus provide the best refutation of their precision-morality oxymoron.

            In this regard, a striking Indiana University Law School Symposium devoted to a proposed “model death penalty code,” is “must-reading” for living violent-crime victims, tormented murder victims’ survivors, as well as those who care about them and, yes, for those who care about fairness – must-reading because it demonstrates just what they are up against. This conference exposes the murderer-advocate mindset in all its naked ugliness. It is highly doubtful that its recurring one-sided “fairness” motif would ever be accepted by most law-abiding people.

            The participants proclaim, as an axiomatic presumption merely to be asserted without any need to be demonstrated, that the criteria for capital punishment must be extremely “narrow” to ensure that its imposition is “rare” – a value shared and imposed by justices who decree mercy for merciless murderers. Having made it rare, they turn around and complain that it is unfair because it is rare. This sets the stage for the real objective: to save all murderers, no matter how many victims they slaughter and how brutally.          

            In pursuit of their objective, Fairness Phonies do not worry about victims. Indeed, they dare not if they are going to torture already traumatized victims and create new ones without being conscience-stricken. Obviously, it is far easier to champion convicted murderers when their victims are completely ignored and not given one second’s thought. If murderer-advocate justices had their way, which five once did, victims would be thrown out of court (16). In their world, fairness has little or nothing to do with victims, who are or should be a non-calibrated non-factor. And victims with the temerity to speak up in protest must be treated with hostility and contempt.

            Victims’ view of justice is unworthy of consideration. Lest there be any doubt, the Symposium’s welcoming remarks and four panel discussions take up roughly 44-45,000 words. Of that number, the word “victim” appears 19 times according to Microsoft Word. The majority of mentions are general, while seven profess false concern for victims to justify death penalty opposition. There is not a single mention of victims as a factor in support of capital punishment.

            Victims simply do not count in fairness or “moral accuracy” calibrations. This point is glaringly punctuated by Sundby’s 2350 words devoted to his quest for “Moral Accuracy,” which do not include the word “victim” – not once!   

            Thus, a critical factor is banished from the fairness calculus. It does not appear to occur to the panelists to weigh the value of a barbaric savage against the value of his decent, law-abiding victim(s). For Fairness Phonies, this is unnecessary because, as noted, they assign virtually no value to the lives of victims while prizing highly those of savage murderers. The hypocrisy is mind-boggling when, like Justice Brennan, they also prattle on and on about the “human dignity” of their idols and how everyone is equally human. It turns out that, in their eyes, victims are far less equal than their torturers.

            As Dr. William A. Petit poignantly and agonizingly explained: “If you allow murderers to live, you’re giving them more regard, more value, than many people who have been murdered.”            

            This is clearly demonstrated by data that can be calculated. Simply stated, between 1972 and 2012, there were 783,832 murders resulting in 1,369 executions as of February 26, 2014, or 0.175%. In other words, the life of one murderer is worth the lives of 572 murder victims. That is one measure of the value placed on victims and murderers by the unrepresentative elitists who have captured the legal system. Another measure is provided by leading death penalty “abolitionists,” who have unashamedly declared that they prefer the murders of 100 decent, law-abiding victims to the execution of one convicted murderer.

            Moreover, while abolitionists, as discussed above, constantly allege wrongful convictions, their worst case only serves to demonstrate the position taken here. The self-styled Death Penalty “Information” Center touts what it calls an “Innocence List” of those supposedly “exonerated” (but not one actually executed – later Part XI). If, for argument’s sake, the list is taken at face value, as of September 8, 2014, its total number was 146 – 146!  Many, if not most, of that number were anything but innocent (see, e.g., here and here). In any event, compare 146 to 783,832 murder victims. There is absolutely no doubt that all of the latter were absolutely innocent. For the record, 146 is 0.0186% of 783,832.

            Finally, on April 26, 2014, The Economist implied that the death penalty should be abolished because America’s homicide rate “declined sharply” to 4.7 murders per 100,000 people in 2012. This was conveniently omitted: in a population of 314 million, that antiseptic-sounding number equals 14,827 murders, with grief multiplied by all the loved ones suffering from the losses. Meanwhile, the same people who so airily dismiss the murders of nearly 15,000 innocent, law-abiding people go ballistic that, in 2013, 39 barbarians were executed and, as noted, 1,369 were executed for nearly 800,000 murders in four decades. To top off the insult added to the horrific injury of real victims, another professor found it “disturbing” (458) when hundreds of thousands of murders in 26 years resulted in 3,000 very much alive convicts on death rows.   

            Yet again, hard numbers show that death penalty opponents place an extremely high value on convicted murderers’ lives and a very low value, if any, on those of their victims. The fact, that murderer advocates often feel a need to feign sympathy for victims, shows just how inexplicable and untenable their true values are.

            To homicide survivors and those who care about them, the idea that the lives of murder victims are as valuable as, if not far more than, those of their murderers is as elementary as 2+2. But, for murderer devotees, this concept may as well be rocket science. The latter hold sacred the lives of the most brutal murderers while disdaining the lives of their victims. Illustrating the vast gulf between murderer and victim supporters, Emily Bazelon sees 1,300 executions as “shockingly high.” Victims and other law-abiding people should be forgiven if they view that number as “shockingly low.” Again, 1,369 executions are 0.175% of 784,000 murders. Compare that to the Phonies’ dismissive attitude toward 14,827 murders in a single year.

            Clearly, contrary to the Fairness Phony false contention that wrongful executions are rampant (Part I), the tragic truth is that even well-deserved executions are not rampant. Indeed, one of the reasons all capital punishment statutes were nullified in 1972 was that there were “so few” executions (Part VII).    

            The hypocrisy of these numbers is breathtaking. Fairness Phonies rant about what is least quantifiable: conscience and value judgment. Yet they ignore what can be quantified. Their utterly one-sided view of fairness is demonstrated by at least four different numbers – new victims they would sacrifice to save one murderer, “victim” mentions, execution rates and their own infinitesimal “innocence list.”

            Many if not most law-abiding individuals would likely consider inclusion of victims to be vital to any evaluation of fairness. Nevertheless, with victims scorned by those who misrule the legal system, no one should be surprised by frequent indefensibly irrational sentences.




          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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