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

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) “Mitigating” Factors:

                        (1) Anything Under the Sun?           

            Was Justice Rehnquist resorting to hyperbole when he accused fellow justices of encouraging the “bizarre” use of “anything under the sun” to save the lives of convicted murderers?

            As originally concocted by justices, states were ordered to allow introduction of any evidence that might “mitigate” an unlawful murder, such as a bad life or a not too bad criminal history. But it was not long before anti-death penalty justices ordered that anything – absolutely anything! – must be allowed, including events occurring long after the murder and evidence having nothing to do with the murder or the convict.

            There are enough examples to fill an encyclopedia devoted to outrageous absurdities. Here, providing only a brief sample is feasible. Much of what follows falls into the you-can’t-make-this-stuff-up category. Yet it’s all too tragically true.

            Richard Boyde may have committed premeditated murder of a store clerk begging for his life but, more importantly, he won a “dance choreography” prize. Still on death row October 2, 2014, 33 years after bashing a 19-year-old girl on the head nearly 20 times with an iron dumb-bell bar (211) to silence her as a witness against him, Fernando Belmontes sought mitigation based on his claimed religious devotion both before (37) and after (177) his crime. In addition, two federal appellate judges declared his barbarity to be not “especially heinous” (211) – so much for “aggravating” factors. (On convicted murderers “getting religion,” for a rare honest media presentation on this subject, as well as on false innocence claims, see here.)

            Placing icing on the cake, four Supreme Court justices advocated the concept of “forward-looking mitigation [17] … the possibility that [Belmontes] would lead a constructive life” in prison. Not only does this have absolutely nothing to do with his brutal crime, they conceded that it was only a “possibility.” It is also “possible” that a particular murderer will murder again and certain that some murderers will.

            When justices try to “mitigate” past murders with rank speculation about what might happen in the future, this demonstrates how desperate they are to save the depraved – and the lengths they will go to do so.

            Is it any wonder that Richard Cooey argued that he was “too fat” to execute? Why shouldn’t that mitigate the fact that all he had done was to abduct, rape, beat and strangle to death two college girls. Throat-slasher Joseph Murphy contended that an executioner might have cancer. Regarding health, a reason given for not executing quadruple-murderer Clarence Ray Allen, referred to in Part IV, was that, while scheduled to die anyway, Allen might find the stress of thinking about his impending execution so great that he could have a heart attack and die. Jonathan Simmons, who beat and sexually attacked four old ladies (including his own grandmother) and murdered one of them, must be allowed to “succeed” in arguing for mercy because he “only preyed on elderly women” (176) and would not be able to do so in prison.

            A contestant for an award as one of the most appalling anti-death penalty lawyers should be attorney Jeremiah Donovan. His client, Joshua Komisarjevsky (and Stephen Hayes) broke into the home of prominent Connecticut physician, Dr. William A. Petit, Jr. They robbed, tortured, sexually attacked and murdered Dr. Petit’s wife and two daughters. They tried to murder Dr. Petit but, amazingly, he survived. Donovan engaged in vicious personal attacks on everyone in sight, including the judge and the victims. But he really outdid himself, and almost every other anti-death penalty attorney, when he sought to minimize the depravity by claiming that Komisarjevsky had only “ejaculated upon rather than sodomized one of the murdered girls.

            These are the kinds of people who prattle about being “fair” to murderers.

            For sheer absurdity, lawyers for Sean Vines used the famous 2000 election case of Bush v. Gore to oppose executing their convicted murderer. This was rejected (889) by the California Supreme Court.

            Any television viewer knows that a bad childhood is a golden oldie in the save-a-saintlymurderer-today hit parade. That includes having a parent who drank (3) or abused drugs. Also alleged to be part of a bad childhood is growing up poor. Of course, this fails to explain why most poor people with bad childhoods do not commit murder and are, in fact, the most likely victims. Also, even if poverty breeds crime, former Attorney General Nicholas Katzenbach argued (492), it does not follow that crime should not be fought: “so many persons guilty of crime would be insulated from conviction that our system of prevention and deterrence would be crippled. This would in fact increase the suffering of the less favored in our society, for it is they who live in the high-crime areas and they who are the usual victims of crime.”

            Why exactly is it fair to increase the suffering of poor law-abiding people in order to protect poor vicious people?

            Poverty as mitigation is used too often to require illustrations. But isn’t that “unfair” to privileged barbarians who cannot plead being poor? Not to worry. Clarence Darrow did not bat an eyelash. He contended that being born rich was a “grievous misfortune,” a curse, that “poverty is fortunate.” Thus his rich child-murderer clients were the true victims, and “compared with [their] families,” the parents of the murdered boy were to be “envied—and everyone knows it.” At the same time, Darrow proclaimed that “nobody … sympathizes with [the latter] more than I.”

            When pondering how a point has been reached in which victims are to be envied and premeditated murderers are victims, remember that Darrow set the standard for being a great lawyer who “towered over the legal profession.” These are the kinds of people true victims confront and who have turned the concept of fairness upside down. And it is business as usual for U.S. Supreme Court justices. 

            The upshot: in Fairness Phony heaven, murderers win and victims lose. One might think that, under “individualized sentencing,” the better off are presumed to know better, more should be expected of them, and hence punishment should be greater. If poverty is mitigating, shouldn’t wealth and a good home be the opposite? But Darrow argued that advantage was itself mitigating. So the less well-off should be punished less harshly than the better off, but it is unfair to punish the better off more harshly than the less well off.

Related to poverty vs. wealth is intelligence vs. alleged stupidity of the murderer. According to Indiana Symposium panelist Pokorak (77), it is unfair to execute those who are “careless… leaving physical evidence behind” and are not “clever … criminal masterminds [or] planners.” Justice Scalia had a simple answer: “why should the dull-witted suffer for his lack of mental endowment? [The] Constitution protect[s] the guilty as well as the innocent, but it is not [its] objective to set the guilty free. That some clever criminals may employ [procedural] protections to their advantage is poor reason to allow criminals who have not done so to escape justice…. [A] rule that foolish mistakes do not count would leave most offenders not only unconvicted but undetected.” Decades earlier, Judge Bazelon complained that it was “discriminatory” (486) that professional criminals “know their rights,” while the ignorant and inexperienced do not. Attorney General Katzenbach responded (494): “I have never understood why the gangster should be…the model … in the name of equality…  This is simply the proposition that if some can beat the rap, all must beat the rap.” 

 If some can beat the rap, all must beat the rap! That’s the Fairness Phony rallying cry in a nutshell. That is the result when the major sentencing consideration is the criminal rather than his crime.  

            While there is no end to the outrageous arguments made to “mitigate” the savage deeds of brutal murderers in order to save their lives, a few deserve special recognition. 

                        (2) A Dishonor Roll of Mitigation Hypocrisy and Duplicity              

                                    (a) Too “Intellectually Disabled” to Understand? Psychiatrists vs. Jurors

            Discussed above was the solicitude of murderer advocates for those not clever enough to avoid capture. In 2002, six justices took mitigation beyond mere stupidity. They barred execution of the allegedly “retarded” or, in up-to-date politically correct parlance, “intellectually disabled.”

            One problem with this is that, while it may be hard to do well on a test, it is not hard to do poorly on purpose (17). A much greater problem is the conflict between common sense and ivory tower theories. For example, consider the repeat rapist and premeditated murderer, parolee Johnny Paul Penry. This rock star of murderer groupies carefully selected and stalked his victim, Pamela Mosely Carpenter, tortured her and raped her. He then murdered her becauseI had to so she wouldn’t squeal on me. … I knew that if I … raped her that I would have to kill her because she would tell … and I didn’t want to go back to the pen.” (Emphasis added.) Nevertheless, based on obviously fanciful retardation claims, murderer advocates, including U.S. Supreme Court justices, were able to drag out his case for 28 years, mercilessly and additionally torturing Carpenter’s family for decades, until, after three death sentences by three different juries, the family and prosecutors surrendered, agreeing to a purported life sentence. (Carpenter’s brother is a Hall of Fame football star; no one is immune from abuse by justices for the benefit of murderers.) 

            Anti-death penalty justices twice saved Penry’s life in the face of juries that rejected the claim that someone who carefully planned and thought out a rape-murder was retarded or “intellectually disabled.” This cold-blooded barbarian knew exactly what he was doing and that it was wrong, unlawful and subject to lawful punishment. Nevertheless, his retardation appeals never stopped and ultimately succeeded.

            Ordinary people with ordinary common sense might wonder how someone who carefully plans a rape and murder that he fully understands is wrong can be considered retarded.

            The answer: “expert” psychiatrists.

            As recently as May 27, 2014, five murderer advocates posing as impartial justices, not in so many words, but in essence, ceded (7-12) authority over capital punishment to anti-death penalty psychiatrists. Of course, the latter easily match the former in presumptuousness and arrogance.

            To understand, it is worth considering a seemingly unrelated matter, the 1984 presidential election. Between them, Ronald Reagan and Walter Mondale had decades of public service and appearances. Nevertheless, a psychiatry professor at a highly prestigious medical school, “Distinguished Professional” Leopold Bellak, M.D., warned that nothing less than the “fate of the world” depended on subjecting these experienced high profile candidates to tests of mental ability provided by his profession. For Bellak, the judgment of the voters based on their knowledge of the candidates’ careers was just not good enough!

            Reagan and Mondale did not submit to Bellak’s tests but, with a sigh of relief, the world luckily survived. However, Ewa Berwid was not so lucky. Her husband, Adam, had promised repeatedly to murder her, assuring a judge in open court that he would do so if given the chance. But he was granted freedom for a day by two psychiatrists convinced that they knew best. Such was their arrogance that they did this without alerting prosecutors or Ewa despite large red warnings written on Berwid’s file folder urging that this be done. Only psychiatrists would be surprised that Adam promptly stabbed Ewa multiple times in front of their children, leaving them with a lifetime of nightmarish memories.

            This is but one example. A tome would be required to recount the many lives lost due to mistakes of psychiatrists and other “experts.” (See here, here and here for more on misguided psychiatry.)

            Now back to the decision by five justices to effectively substitute psychiatrists for jurors in their anti-capital punishment crusade. The five blocked an execution for what they themselves described this way

                             On February 21, 1978, Freddie Lee Hall … and his accomplice, Mark Ruffin, kidnaped, beat, raped, and murdered Karol Hurst, a pregnant, 21-year-old newlywed. Afterward, Hall and Ruffin drove to a convenience store they planned to rob … [T]hey killed … a sheriff’s deputy who attempted to apprehend them. [Emphasis added.] 

A detailed analysis of this extraordinary opinion cannot be undertaken here. However, six points stand out.

                        First, this case has been tied in knots and dragged out for 36 years, during which at least two different juries sentenced Hall to death.

                        Second, this case parallels the Leopold Bellak proposal, except that presidential candidates are free to reject psychiatric nostrums; those trapped in a legal system ruled by whimsical judicial fiats are not so free. What the May 27 fiat boils down to is the imposition of rule by so-called “experts” over common sense. As with Penry, how can someone be considered retarded when he plans a crime and commits a murder on the rational basis that he does not want to be identified? Adding to the arrogance of these justices is their own quotation (4) of the sentencing judge:

[n]othing of which the experts testified could explain how a psychotic, mentally-retarded, brain-damaged, learning-disabled, speech-impaired person could formulate a plan whereby a car was stolen and a convenience store was robbed. 

In a word, the jury and the judge rejected the experts in favor of obvious common sense; the justices rejected the judge, the jury and common sense in favor of the experts. Time and time again, experts have been shown to be foolish at best and dangerously destructive at worst (e.g., here, here and here).            

            Third, closely related to the second point, this case is a parody of a parody. The absurdity that sentences can be can be “calibrated” “scientifically,” with “precision” and “moral accuracy” already has been explored and need not be repeated here. Justice White’s reference to justices assuming the role of “finely tuned calibrators of depravity” was an objection to their own subjective declaration that Robert Godfrey’s brutal murder of his wife and mother-in-law was not “materially” more depraved than other murders.

            On May 27, five justices went further, not themselves evaluating what Freddie Hall actually did, but relying on the ever-changing calibrations (Alito, 8-9) of psychiatrists alleged to be experts. Murderer advocates may say this is “fair.” But for victims, this can only be seen as the height of unfairness and injustice. 

            Fourth, in other contexts, Justice Scalia has accused other justices of relying very selectively upon precedents, foreign law (14) and legislative history, in order to achieve their preferred outcomes. Citing Judge Harold Leventhal, he called this “the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one’s friends.”

            Similarly, the Hall opinion ignores experts who justify placing retarded people in residential areas on the very ground that they are no more dangerous than anyone else. Even Justice Stevens conceded (13): “There is no evidence that they are more likely to engage in [premeditated] criminal conduct than others….” So, which is it? Does being retarded make one less culpable because less able to understand what is wrong – and hence more of a threat to the community – or not? Only the five justices’ selected “experts” would dispute that a truly retarded person is incapable of planning rape, robbery and rationally motivated murder.

            The final two points require special emphasis.




          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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