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

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

                        (b) Phony Fairness to Victims: Exception to the Rule.

                                    Fairness Phonies make an exception to their opposition to victim impact evidence, professing to care about select victims.  Although they fear victim impact evidence due to the barbaric harm it can demonstrate, they have a backup claim. They “worry” that it is, yes again, “unfair” – unfair to victims who allegedly suffered less if evidence is admitted about victims who suffered more. They deplore the prospect of placing a higher value on some victims than others (39:33).

This professed concern rings hollow for several reasons.

First, the overriding objective is always to save murderers by wielding whatever conflicting rationales are necessary from case to case. Thus their champions also strive to keep out evidence about hapless victims leaving no one to mourn. But Chief Justice Rehnquist pointed out:

[V]ictim impact evidence is not offered to encourage comparative judgments … for instance, that the killer of a hardworking, devoted parent deserves the death penalty, but that the murderer of a reprobate does not. It is designed to show, instead, each victim’s “uniqueness as an individual human being,” whatever the jury might think the loss to the community resulting from his death might be. [One case excluded evidence that] the victim was an out-of-work, mentally handicapped individual, perhaps not, in the eyes of most, a significant contributor to society, but nonetheless a murdered human being.

It was justices such as Brennan, Marshall and Stevens who rigidly insisted that a convicted murderer be allowed to present any “mitigating” evidence showing his “uniqueness as an individual human being” but that such evidence regarding the victim should be strictly prohibited – regardless of the victim’s status.

            That “one-sided … moral judgment” is fairness?!                                                                    

            Second, on Nightline January 25, 1984, Alan Dershowitz complained:

[W]e … focus [too much] on victims … [I]t is very important to focus on the defendant and … away from the victim …We shouldn’t evaluat[e] criminals by the fortuities of who they happen to kill…. [T]he defendant is the same; the act is the same; and the culpability is the same.

However, those with this view also distinguish attempted from successful murder despite the act and intent being the same. If sincere, they would agree that any act intending to kill unlawfully should be a capital crime and not depend on the victim’s luck, health, ingenuity and medical care. But when a victim fails to die despite the best effort to murder him, Fairness Phonies have great interest in the culprit’s impact on his victim.

            (The differing harm and grief caused by convicted murderers is an agonizingly gut-wrenching matter. It must and will be further addressed (Part X), especially in light of the following point.)

            Third, as distasteful as it may be for many to accept, in American society, everyone is equal before the law but people do not live or behave equally. Hence, the law has always treated different conduct differently. Yes, Justices Brennan and Marshall thought the lawful execution of a murderer was “no less shocking” than what the murderer unlawfully did to his victims (Part I). Nevertheless, has political correctness obliterated any ability to appreciate differences in the conduct of Adolph Hitler and Albert Schweitzer? Can anyone not fanatically devoted to murderers doubt that murder of a president has far greater impact than other murders? Who actually believes that the murder of Lincoln did not do incalculable harm to this country? A distinct word is used for murdering a leader: assassination. It assaults his followers, what they stand for, the entire body politic and representative government.

            To take another example, many find it unpleasant to face, but there is far more grief and loss inflicted by a drunk driver convicted of murdering a devout mother of eleven who is also a valued community leader than when a victim is alone and friendless. To disregard this is to contend that, if some murderers cause less grief and harm than others, this should benefit all murderers, by reducing so-called “moral culpability” to the least harm caused by any murderer anywhere. But is it fair for those who wreak more harm to benefit because others inflict less? If not every murderer causes the same level of grief and if Supreme Court justices demand that murderers be treated as individuals, shouldn’t there also be accountability, on a case-by-case basis, for the full magnitude of the harm done to individual victims?

            This is yet another example of trying to benefit murderers by comparing criminals to each other without considering the actual crimes against real victims. Thus, the Phonies argue that each murderer should benefit from the lowest sentence received by any murderer and, as a fallback position, they contend that each murderer should benefit from the least harm caused by any other murderer in crimes having nothing to do with the particular crime at hand.                                                                                                                        

            Finally, regarding admissibility of evidence of actual harm done, Justice White cogently observed

Many if not most jurors … will look less favorably on a capital defendant when they appreciate the full extent of the harm he caused …[S]omeone who drove his car recklessly through a stoplight and unintentionally killed a pedestrian merits significantly more punishment than someone who drove his car recklessly through the same stoplight …when no pedestrian was there to be hit…[I]f punishment can be enhanced in noncapital cases on the basis of the harm caused,… I fail to see why [this] is unconstitutional in death cases … [J]ust as the murderer should be considered as an individual, so too the victim is [a unique] individual[.]


(2) Limiting Other Aggravating Evidence

                        In addition to seeking to restrict evidence of crime impact on victims, other limitations on “aggravating” evidence have been imposed – with considerable hypocrisy. Anti-death penalty justices limited the use of “aggravating” evidence only after first “demanding” that juries find factors sufficiently “aggravating” to warrant a death sentence. This was a judicial concoction and not a Constitutional requirement.

When, as noted in Part I, Justice Blackmun declared that he would no longer vote to uphold any death sentence, he objected to the death penalty “as currently administered.” But Justice Scalia retorted that the way the death penalty was “currently administered” was due to “incompatible commands” imposed by justices after 1972 with no basis in the Constitution.

One unschooled in the “wizardry” of judicial “sophists” (dissent, 28), might consider committing first degree murder sufficient to justify a death sentence, period. Justice Scalia complained that his fellow justices had “decreed-by a sheer act of will, with no pretense of foundation in constitutional text or American tradition-that the People (as in We, the People) cannot decree the death penalty, absolutely and categorically, for any criminal act, even (presumably) genocide.” And Justice White objected that banning mandatory death sentences required states to be

constitutionally prohibited from considering any crime … so serious that every person who commits it should be put to death regardless of … his character. … [T]he major justification for concluding that a given defendant deserves to be punished is that he committed a crime. Even if the character of the accused must be considered … surely a State is not … forbidden to provide that the commission of certain crimes conclusively establishes that the criminal’s character is such that he deserves death. [Emphasis added.]

However, for anti-death penalty justices, no crime alone could justify a death sentence. Juries suddenly were required to find specified but limited “aggravating” factors. But that was not enough! Any such finding ultimately had to pass muster with five justices, who also suddenly declared that they had the last word on jury findings – a fiat without a single word in the Constitution that gives them the last word and which they had not claimed to have for nearly 200 years. (No precedent was cited for this claim when first asserted. In later cases, the claim – labeled “laugh[able]” by Justice Scalia – was cited as precedent. In other words, justices write fiction and then seek to legitimize it by citing their own unprecedented creative writing as precedent in later cases.)

For example, although Robert Franklin Godfrey described the murders he had committed as “heinous,” as noted in Part I, Justice Stewart pronounced them insufficiently depraved to warrant a death sentence. While Justice Sotomayor condescendingly lectured other judges that brutal murders could be “mitigated” despite being too heinous to be “explained” (Part IV), Stewart thought murders also could be insufficiently heinous to meet “aggravation” requirements. Homicide survivors might be sorely tempted to conclude that this is undiluted gobbledygook excreted by justices who are unscrupulous lawyers highly skilled in altering and twisting the clear meaning of words to advance any ulterior motive whatsoever.  

Removing all doubt, in a case similar to Godfrey’s and decided eight years later, William Thomas Cartwright was sentenced to death for the premeditated murder of a husband and attempted murder of his wife in their home. Although he had shot her in both legs, slit her throat and stabbed her twice, she miraculously survived. Nevertheless, justices declared unconstitutionally vague the jury’s finding that this crime was “especially heinous, atrocious, and cruel.” These words could not be an “aggravating factor” because they provided insufficient notice to Cartwright that he would risk a death sentence. After all, how could he possibly have anticipated that commission of such a crime would put his own life at risk?

Only in a Fairness Phony Fantasyland could such a question be taken seriously!

Three further points are noteworthy regarding the Cartwright opinion. First, the justices spurned language adopted by states in reliance upon the Model Penal Code (221) drafted by the prestigious American Law Institute. Second, it was written by the very same idiosyncratic Justice White who, in the Godfrey case, had criticized Justice Stewart for establishing the Court as a “finely tuned calibrator of depravity.” Third, it was none other than Justice Stewart himself who famously said of “hard core pornography” that he could not define it but “I know it when I see it.” Of course, he occupied the lofty position of high court justice. Mere jurors required “guided” rather than “unchanneled” discretion because they were too stupid or too irrational or too biased to be able to recognize a particularly heinous murder. (As will be elaborated in Part VII, anti-death penalty justices make an exception: the role of the jury is sacrosanct whenever it spares a brutal murderer. In that event, the jury is exalted as the “conscience of the community.”)

And by the way, try telling the family of a deliberately slain victim to take comfort because the murder of their loved one was merely ordinary but not especially heinous. Surely they will accept the “fairness” of such an assessment. This raises a key question (Part X):  should death for first degree murder be mandatory in order to avoid such heartbreaking distinctions?

In this vein, Indiana Symposium panelist Jeffrey J. Pokorak (76) objected to accepting torture and rape as aggravating factors because, as he conceded, “almost every murder involves ‘torture.’” So using these factors to warrant a death sentence would not serve the purpose of “narrowing” death “eligibility.” They, too, must be excluded. After all, isn’t the objective of Fairness Phonies to choke the death penalty to death?

Trivializing the gravity of barbarity is one weapon. Another is to canonize barbarians as saints.



          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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