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

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


            Indiana Symposium participant Edwin Colfax made the goal clear: “fairness in the application of the death penalty among the guilty….” (Emphasis added.) In 2011, when Oregon’s governor attacked the death penalty, to save a convicted murderer previously kept alive to commit a second brutal murder, John Kitzhaber announced his personal view of “fairness and justice”: it is “morally wrong” to execute some for murders when others are not executed for similar murders. This is akin to Gov. Malloy’s rationale quoted at the outset. Finally, Indiana panelist Sundby demanded a “guarantee” not only that murder convictions be “factual[ly] accurate,” but that any jury decision to impose the death penalty be “morally accurate,” a requirement that this punishment be “applied consistently to similar defendants for similar crimes.”

            Fairness is thus limited to comparing the fate of one barbarian to another. Punishment must be consistent for “similar defendants for similar crimes.”  

            Just think about those words. They represent the essence not only of murderer advocacy, but of the entire mindset of what former Attorney General Edwin Meese labeled the “criminals’ lobby.” Deeply buried in these words is a yearning for a criminals’ paradise where there is no punishment for any violent crimes.

            Only in utopia can one expect identical or even similar punishment for identical or similar crimes.

                        First, legislators in different jurisdictions, juries and judges acutely differ about appropriate sentences. Judges howl in protest when legislators limit their discretion as a result of gross sentence disparities for nearly identical crimes. As will be discussed (Part IV), justices now demand “individualized sentencing.” So to express dismay when this does not result in “similar sentences for similar crimes” is no different from expressing shock that custom-made clothing does not fall into the one-size-fits-all category.

                        Second, many criminals are never caught.

                        Third, on behalf of those caught, judicial sorcerers (6) have drastically altered the legal system in the last 60 years to assure that it is extremely more likely (7-18) that the guilty will not be convicted (let alone appropriately punished) than that the innocent will be convicted. Consider the bitter complaints of dissenting justices: “cavalier…just a game” (Scalia) (12);   justices “playing a grisly game of ‘hide and seek[’] … sporting theory of criminal justice….” (Burger); “sport of fox and hound” (Rehnquist); new trials for the “clearly guilty” (Black). Finally, just two years ago, Justice Scalia summed up (dissent, 12-13) the lengths to which activist justices have gone to protect not the innocent but the “clearly guilty”:

 [E]ven though there is no doubt that [Cooper] is guilty …; even though he has received the exorbitant gold standard of American justice—a full-dress criminal trial with its innumerable … limitations upon the evidence that the prosecution can bring forward, and … the requirement of a unanimous guilty verdict by impartial jurors; the Court says that his conviction is invalid …. I am … saddened by … this Court’s attitude toward criminal justice. The Court … embraces the sporting-chance theory of criminal law, in which the State functions like a conscientious casino-operator, giving each player a fair chance to beat the house, that is, to serve less time than the law says he deserves. …

            (Justice Scalia’s reference to limiting evidence merits a comment. As Law and Order fans know, defendants often seek exclusion of what reliably proves their guilt. Justices imposed this “exclusionary rule” upon the states in 1961 after refusing to do so in 1949.  Sold as protecting “all persons” against unlawful privacy violations by police, this rule actually benefited criminals exclusively. As explained by Justice Frankfurter, “exclusion of evidence … serves only to protect those upon whose person or premises something incriminating has been found.” Innocent people whose privacy has been violated may sue the taxpayers for any “official lawlessness” of their employees, the police, but they obviously cannot reap the special court-created reward of being freed despite clear proof of guilt of the most brutal crimes. Meanwhile, it is the future victims of freed barbarians who are punished, not the police. What a bizarre way to punish “unlawful police conduct”!)

            So the only way to meet the consistency-among-criminals view of fairness is to punish no one for any criminal act because it is certain that some will go unpunished – even when guilt has been clearly established!

            But now, consider the complete inanity, if not utter fraudulence, of confining fairness to consistency among guilty barbarians – without regard to victims.  

            (A) Justice Stewart’s Lightning      

                           As noted at the outset, Justice Stewart objected to death sentences in some cases because they were not imposed in many others. To him, they were wanton, freakish and “cruel and unusual in the same way [as] being struck by lightning ….” This comparison suffers from three serious defects.

            First, although, on a prominent criminal law blog, outrage was expressed at a recent 5-4 opinion barely mentioning the victims of brutal rape-murders and denigrating their humanity, in reality, this has been standard operating procedure of anti-capital punishment justices for decades. Thus, Stewart’s 1972 analogy showed, right from the start, that ignoring victims was an indispensable weapon in the unelected justices’ war against capital punishment. Stewart disregarded the law-abiding victims of rape, torture and murder. He expressed no concern that they, too, are chosen “in the same way [as] being struck by lightning” – ignoring that being struck by lighting is a tragic accident or Act of God. By stark contrast, murder is deliberate, unlawful and “wantonly and … freakishly imposed” by the very barbarians seeking mercy and fairness. 

            Second, Stewart disregarded the ancient equitable doctrine of unclean hands. Simply stated, the courts will not entertain the pleas of those with legally dirty hands. People cannot seek redress for acts they themselves have engaged in. Although this has been used in civil cases, it applies to crimes.

            Stewart’s lightning objection was on behalf of cruel individuals who “wantonly and freakishly” selected innocent victims to be “struck by lightning.” He sought fairness for those who had committed the ultimate acts of unfairness – and in the very cases addressing that ultimate unfairness. It would be no surprise if, in the judgment of most homicide survivors, anyone who commits the worst imaginable unfairness forfeits – or should forfeit – any claim to fairness among his peers – let alone precision fairness.  

            This deserves repetition and the utmost emphasis. The clean hands standard dictates that anyone guilty of the worst imaginable unfairness should be deemed to have forfeited any claim to fairness!

            In his separate opinion joining the 1972 declaration of war against capital punishment, Justice White conceded: “It is perhaps true that no matter how infrequently those convicted of rape or murder are executed, the penalty … is not disproportionate to the crime and those executed may deserve exactly what they received.” Clearly guilty murderers, who have intentionally plunged their hands far into the filth of the ultimate unfairness, have (or should have) no claim to fairness. But for those obsessed with murderers, if all do not receive their just deserts, none should. No justice is better than some justice. No one contemplating murder should fear, even slightly, receiving his just deserts. That’s what Fairness Phonies yearn.

             Third, because only execution can guarantee that a murderer will not murder again, Stewart ignored the absolute certainty that new law-abiding victims will by struck by lightning at the hands of those Stewart saw himself as saving from being struck by lightning. What can be more arbitrary – and unfair – than the selection of victims, and infinitely more so for those murdered and raped by spared convicted murderers and rapists? The ultimate arbitrary unfairness is to protect convicted murderers and rapists at the expense of randomly sacrificed new decent and law-abiding victims. It is painful enough to lose loved ones to murder; but just imagine the excruciating pain suffered by the parent of a child tortured, raped and murdered by a savage previously convicted of murder but unfairly – yes, unfairly! – given a “second chance.” Depending on one’s value compass, one might consider this the supreme immorality, obscenity, arbitrariness and – lightning. 

             (B) From Lightning to Lunacy 

                        While the lightning comparison is highly dubious, that is the least of it. After Stewart and his four accomplices, in five solo opinions, each joined by nobody else, issued their 1972 fiat invalidating all existing death penalty statutes, justices were compelled by the intensely negative public reaction to concoct an irrational if not insane Rube Goldberg mess, resulting in excruciating torture of homicide survivors with decades-long litigation involving uncontested guilt. This did not concern justices engaging in repeated chicanery and fancy footwork. Justice Scalia denounced “bait and switch” death penalty decisions; Justice Rehnquist said they went from “pillar to post.” When four anti-death penalty justices failed to prevail, even they complained: “the Court has lost its way in a procedural maze of its own creation.” Needless to say, they did not acknowledge their own role in begetting this judicial muddle.

            In 1971, unfettered jury discretion in deciding whether to impose a death sentence was declared constitutional. But in 1972, the death penalty was held unconstitutional because juries had too much discretion. In 1976, some death penalty statutes were held unconstitutional for supposedly providing too little discretion although they had been newly enacted in good faith precisely to comply with the 1972 fiat. States thus had to figure out how many discretion angels could dance on the head of a Supreme Court pin.

            It would be pointless here to attempt a detailed constitutional analysis. To paraphrase Prof. Lino Graglia, what justices did had absolutely nothing to do with the Constitution – other than using it as a subterfuge to misuse power to impose personal values upon a public that did and does not share those values.         

            Justice Scalia notes (2) that, for nearly two centuries, it was not considered possible that justices could “interpret” the Constitution to abolish the death penalty. Of course, for any five justices determined to dictatorially impose their personal values on everyone else, “interpret” is really a synonym for “misinterpret.” Or, as Rehnquist put it, to pursue their cause, these justices “conscripted rather than interpreted” the Constitution. The best evidence that they did not faithfully apply the Constitution is that they repeatedly changed what they said it meant, despite the fact that there had been no new Constitutional Amendment regarding the death penalty. Not one written word of the Constitution had changed while justices kept saying, with lightning speed, that the words meant something different from case to case.

            Justices themselves have implicitly acknowledged that they change the Constitution without bothering to require duly ratified amendments. But that might not be fair to those sentenced more harshly before judicial de facto amendments than they could have been afterwards.  A vast case law was thus spawned to grapple with whether and when a “new constitutional rule” applies retroactively to cases already decided.  

            This is an absolutely damning indictment: how can there be “new constitutional rules” for an old Constitution that the people did not change? Justice Stevens, flip-flopper extraordinaire, has insisted that the Court does not (6)  “devise” or “create” new rules of law, but only “articulates” what “pre-exists” in the original Constitution. But he also has accused fellow justices of “newly mint[ing]” (n75) and “inventing” (14) rules “out of whole cloth.”  So he argued (a) justices do create new rules despite (b) not doing so.

            Is that clear?

            Although Rehnquist complained that “reasonable predictability … has been all but completely sacrificed,” there actually has been one predictable overriding principle: an end-justifies-the-means dedication to saving convicted barbarians, facilitated by contempt for victims. If justices cannot save all murderers, they nevertheless “demand” that the number of murderers “eligible” for capital punishment be “narrow.”

            Like guilty suspects who are aware of their rights but confess because they can’t help themselves, justices cannot resist revealing their utter arrogance. Yes, they give lip service to the Constitution, but nevertheless reveal, with Freudian slip after Freudian slip, what they really do while hiding behind that once-sacred document. Thus the Courtdemanded” so-called narrow “death eligibility” (Stevens); “we prohibited” execution of certain convicted barbarians and “we have established substantive limitations” on the death penalty (Powell); death sentences reduced “as a result of” (28) the Court’s rules justified by a “necessity to constrain” (29) capital punishment (Kennedy). (All emphases added.)

            “Narrowness” of “death eligibility” and “necessity to constrain” capital punishment are pure judicial fantasies enabled by unconstrained judicial arrogance. Absolutely nothing in the Constitution requires the certain sacrifice of decent, peaceful, non-violent people in order to keep alive the most violent and dangerous.

            Make no mistake about it. As Justices Scalia and Thomas (dissent, 9) have protested, this was an illegitimate imposition of justices’ personal moral preferences, misusing the Constitution as a pretextual fig leaf. Single-minded devotion to saving the lives of those convicted of depravity consistently led to completely contradictory rationales professing that the Constitution meant whatever this devotion required it to mean. Consistent pursuit of the goal produced wildly inconsistent “interpretations.”

            As noted, this was necessitated by the strong negative reaction to the bare majority’s attempt to ban capital punishment outright in 1972; 35 states responded with new or amended death penalty statutes. In turn, unnoticed by the public, artful justices sought to slowly eviscerate the death penalty, turning it into a potemkin punishment village. To again quote Justice Scalia (185): “The heavily outnumbered opponents of capital punishment [made] this unquestionably constitutional sentence a practical impossibility.” These opponents included justices who, hiding behind a “fog of confusion,” abused their power to strike blow after “blow” (751-52) against the People in [their] campaign against the death penalty”

             Some states sought to deal with the 1972 objection to too much jury discretion by removing all discretion and making capital punishment mandatory for first degree murder. If five justices objected that juries had too much discretion, resulting in too few death sentences to be fair, these states would remove jury sentencing discretion. However, anti-death penalty justices refused to stand for that either. Suddenly, they declared that it was not fair if juries considered only the crimes but not the criminals who committed them.      



          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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