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

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

            (C) Criminals vs. Crimes

                        In 1976, four years after invaliding statutes purportedly because they resulted in inconsistency, the Court invalidated statutes that sought consistency by making the death penalty mandatory for all first degree murders. However, Justice White dissented from the Court’s own inconsistency: having four years earlier invalidated unfettered jury death penalty discretion, “we are now in no position to rule that … eliminat[ing] overt” jury discretion “suffers from the same constitutional infirmities….” Nevertheless, a controlling plurality of three justices proclaimed (C) that a mandatory death penalty statute unconstitutionally denied “particularized” consideration of “the character and record of each [individual] convicted defendant … exclud[ing] … compassionate or mitigating factors stemming from the diverse frailties of humankind. It treats all persons convicted of a designated offense not as uniquely individual human beings” Justice Rehnquist responded that the plurality did not come “within a light-year” of supporting “the principle that the Constitution required individualized consideration.” (Significantly, 18 years later, when Justice Blackmun openly declared his determination not to enforce death penalty laws, he conceded (1150) that “individualized sentencing in capital cases was not considered essential at the time the Constitution was adopted.” Thus, because justices did not like the actual Constitution, they changed it on their own – in arrogant defiance of the crystal clear procedures prescribed for amending the document.) 

            The 1976 cases were so inconsistent that the same justices declared that juries in mandatory death penalty cases simultaneously and impermissibly had both too little discretion – and too much

            In 1978 and 1982, absurdity was taken to the limit, as justices suddenly purported to find in the Constitution a command that everyone convicted of a capital crime be given a chance to present any “evidence” that might “mitigate” his barbaric deed to avoid a death sentence. For those too obtuse to understand, many years later, Justice Sotomayor helpfully clarified the need for mitigation: a crime might be too heinous to be explained yet, at the same time, could be “mitigated” to save a murderer’s life. More on mitigation in Part VI.

            Over the years, as summarized by Justice Stevens, he and colleagues sabotaged capital punishment by (1) banning  it for barbaric crimes they deemed “insufficiently depraved” (e.g., any rape, even torturing little girls); (2) saving designated barbarians (nearly 18-year-olds, the allegedly retarded who calculatingly plot rape and murder); (3) compelling admission of all so-called “mitigating” evidence; and (4) restricting admission of “aggravating” evidence. (“Sabotage” is Justice Scalia’s characterization.)


            The latter two factors – compelling admission of all “mitigating” evidence, while restricting “aggravating” evidence was sold by justices as “guiding” juries to “reasoned moral response” or “reasoned moral decision.” This terminology exemplifies what George Orwell long ago explained: manipulation of language to achieve political goals.

            Murderer-advocate justices mask their true intent: to stack the deck in favor of depraved barbarians and against their victims. No matter how much these justices may deny it, it is they who appeal to emotion, not reason. Seeking the utmost avoidance of victims and their suffering, they want to avoid “reason” in order to maximize sympathy for the most brutal savages.

            In sum, they want to focus on criminals and avoid focus on their crimes (i.e., the very reasons for punishment), because the latter focus necessarily entails impact on actual victims and thwarts portrayal of murderers as the true victims. Justice Stevens made this clear in shockingly unreported cases that an unbiased media would have made lead stories on televised evening news and front pages of major newspapers.

            In 2007, taking the rare (8) step of reading his dissent from the bench and joined by three other justices, he objected to revealing that Cal Coburn Brown had committed robbery, torture, rape, murder and attempted murder. Falsely calling mere mention of these crimes a “graphic description of the underlying facts,” Stevens accused the majority of “attempt[ing] to startle the reader or muster moral support for [their] decision.” Obviously, he and his cohorts wanted to keep secret what Brown really did. Anyone who wants to know why can find the actual “underlying facts” here.

            Stevens fully let the cat out of the bag in 2008. Many law-abiding people, including victimized survivors, would likely be stunned to realize the depth of anti-death penalty justices’ contempt for victims. As noted above (in Part III), Justice Stewart expressed little concern about victims “struck by lightning.” In 1987, this sentiment on the Supreme Court reached its zenith, when a bare 5-4 majority of justices banned presentation of victim impact evidence of harm caused by convicted murderers. This included describing the victim – the life lived and the life lost – as well as the impact on the surviving loved ones, their grief and the loss to them. In 1991, a 6-3 majority reversed the ban. Notably, Justices Marshall and Blackmun, who so often had voted to change Constitutional meaning in the absence of any change in wording, whined that this rare reversal favoring victims had taken place with no change in the law and was nothing but an exercise of judicial power. There appears to be no limit to shameless blatant judicial hypocrisy.  

            As suggested by Marshall, it would take only a change in justices to restore the victim ban dear to murderer advocates. Justice Stevens never accepted admissibility of victim impact evidence, a highly persuasive “aggravating factor.” In one case, he claimed (16) that evidence regarding “personal characteristics of the [murder] victim and the emotional impact [on the] family” should be excluded because “it sheds no light on … moral culpability … and thus serves no purpose other than to encourage jurors to make life or death decisions on the basis of emotion rather than reason.” (Emphasis added.)

            Emotion rather than reason? Really? Months later, unable to restrain himself, Stevens fully revealed his concept of fairness. Remember, stacking the deck to save murderers requires limiting the evidence against them (“aggravating” factors) and admission of any and all “mitigating” evidence, however farfetched and irrelevant. The best way to limit “aggravating” evidence is to prevent jurors from learning the full extent of the harm done. That means keep out the victims – both those who died and their loved ones forever condemned to a living death. Turn them into “faceless stranger[s].”

            To do this, Stevens first called it a misnomer to say that a murder victim’s loved ones were themselves victims, despite the trauma inflicted by their loss. In Stevens’ mind, they were downgraded to mere “third parties.” Jurors should never hear about their suffering at the hands of convicted murderers.

            Second, and most importantly, Stevens found (7) it “troubling … to rouse jurors’ sympathy for the victims and increase jurors’ antipathy for the capital defendants.” (The latter term was a true “misnomer.” During sentencing, the proper term should be “convicted murderers,” not “capital defendants.” They cease being defendants upon conviction.)

            So that’s it. When the likes of Stevens say they want “reasoned moral decisions” or that murder sentences should be based on reason rather than emotion, what they really mean is that such sentences should be based on sympathy for the murderer and antipathy for the victim. They don’t object to emotional decisions. They want decisions “channeled” by emotion in favor of murderers. That is to be achieved with limited “aggravating” evidence and unjustifiably unlimited irrelevant “mitigating” evidence.

            (A) Limiting “Aggravating” Factors

Since 1991, victims have had some say in sentencing proceedings.

This is far from an unmixed blessing for victimized survivors of murder victims. Their suffering is protracted and intensified. They are compelled to relive their worst nightmares again and again and yet again, as anti-death penalty Fairness Phonies drag out cases for decades with repetitive abusive proceedings intended solely to delay or prevent the executions of convicted murderers whose guilt is not in doubt.

Do the Phonies ever concern themselves with whether that is fair?

                      (1) Impact on Victims

                                   (a) Phony Fairness to Victims: Who Really Cares?

                                    Death penalty opponents not only seek to restrict evidence of harm to victims, they often add insult to injury by contending that it is they who are truly concerned about victims.  

For example, after doing all they can to torture homicide survivors with endless bogus legal claims eagerly entertained by their “impartial” judicial supporters, they profess deep concern for victims: if only the loved ones would surrender by agreeing to keep murderers alive, that would end the litigation torture engaged in by the litigation torturers themselves. Not only is that extortion, it is also a lie.

It is a lie because torture will never end as long as a murderer is alive. As soon as Fairness Phonies save his life, they proceed (520) to an endless struggle for his freedom – with a chance to commit further violence resulting in avoidable torture for yet more victims. So they never intend to stop torturing homicide survivors. They merely shift the torture. Instead of the survivors having to endure endless legal proceedings to see the murderer executed (decades after his barbarity), they will have to endure endless legal proceedings to oppose his release from prison. (A classic case is Wilbert Rideau, discussed in Part VII.)

Well now, wait a minute! What about life without possibility of parole? Surely that would assure families of murder victims that they would never again have to endure endless parole hearings. (Supposedly “bloodthirsty” Texas has this option.) The few who study this subject know that this is a Big Lie – one of the biggest. If a legislature can enact a statute establishing so-called life-without-possibility-of-parole, a later legislature can just as easily be pressured – by the same propagandists who have obtained a number of repeals of death penalty statutes – to eliminate that option too, not only for future convicted murderers but also for those already sentenced under that false and absolutely impossible-to-guarantee promise. And if that is not enough, who can guarantee what future justices will do? Not only have justices eviscerated the death penalty over the last four decades, in the last four years, they have commenced to slowly do away with the life-without-parole option. It would probably be foolhardy to wager one’s life-savings betting that they will stop. 

Also, governors have commutation and pardon powers. Moreover, there is the ever-present fear and reality of convicted murderers escaping to commit more brutality. And resourceful convicted murderers don’t have to escape. They have assaulted, raped and murdered both fellow inmates and prison guards – while in prison.  Early in 2014, Thomas Knight was finally executed for murdering a death row prison guard in 1980. Knight had been convicted of the 1974 murders of a business couple, 64 and 60. Serving a sentence inside prison for a prior murder, the notorious Clarence Ray Allen ordered cohorts outside to murder three witnesses against him (987-89).

In other words, to avoid the lawful execution of one cold-blooded murderer, the Fairness Phony version of morality caused the unlawful slayings of three innocent victims who performed their civic duty by testifying. What in the world is fair about that? 

So again, murderer advocates seeking to end the death penalty by claiming to act out of concern for suffering homicide survivors are selling a bill of goods. They know very well that, when someone is murdered, his or her loved ones are immediately sentenced to endless torture at the hands of the very same advocates peddling this line. And only execution of the murderer will end the torture.

As long as their idols are kept alive, dedicated murderer advocates will never tire of giving the likes of convicted rapist-murderer Richard Biegenwald a chance to rape, torture and murder more innocent young women. In fact, they are on the job right now!

Bogus concern for victims, does not apply just to murderers. Declaring that a 300-pound man had a “Constitutional right” to rape an 8-year-old girl free from any fear of execution, five justices pretended this was for the victim’s benefit. They feigned worry (32) about the ordeal girls would face from testifying in capital proceedings. But to obtain a purported life sentence, victims would have to testify anyway, and would still face their own sentences to a lifetime of fearing and testifying against efforts to free their attackers. (Having pretended concern, the justices shamelessly attacked (33) child victims as unreliable.)




          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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