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

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

                                    (e) Turning Torture of Victimized Homicide Survivors into a Mitigating Factor

            The Sixth Amendment of the U.S. Constitution refers to a “speedy trial.” Here’s a small sample of what anti-death penalty justices and other murderer advocates have made of that.

  • The New York Times squealed in anguish just before John Ferguson was executed on August 5, 2013. After all, he only had committed eight murders, six 36 years earlier.  
  • On November 20, 2013, Joseph Franklin was executed for a murder committed 36 years earlier. In reality, he had many murders under his belt, convicted of eight and boasting of 20.
  • On January 8, 2014, Thomas Knight, discussed in Part IV, was executed for murder of a prison guard 33 years earlier while in prison for two other murders six years before that.
  • In June, 1974, John Jacob Dougan slaughtered an 18-year-old boy pleading for his life. Dougan sent audio tapes to the media and the boy’s mother describing the savagery in detail and bragging (3) about what he had done and how much he had enjoyed it. As of September 23, 2014, Dougan was still on death row, 40 years later. Why?! 
  • And let’s not forget Johnny Paul Penry (see Part VI), saved after 28 years and three jury death sentences and only because his victim’s family and prosecutors could take no more delay-abuse.

            While it is, hopefully, not the goal of murderer-advocate justices (e.g., here, here, here) to torture victims, they surely have shown a “depraved indifference” to the victim agony they cause, often amounting to disdain. This suffering is caused by interminable delays “demanded” (see Part VI) by justices, forcing victims to endlessly relive and relive their losses and the resulting pain.

            Lest anyone conclude that this agony is bad enough, it does not stop there. For Justices Stevens and Breyer advocate turning justices’ unwarranted torture of victimized homicide survivors into a mitigating factor for the very murderers of their loved ones. Yes, that’s right! The largely unreported reaction of justices responsible for such travesty is not concern for the slain person or that person’s traumatized family, but for the murderer! Stevens, Breyer, their academic acolytes and, recently, a rogue federal judge have contended that murderers who game the system long enough should be spared the death penalty because they thereby have suffered too much.

            Breyer has often wailed (3) about “suffering inherent in a prolonged wait for execution,” the “‘horrible … feelings’ that accompany uncertainty about whether, or when, the execution will take place,” “the ‘dehumanizing … lengthy imprisonment ….’” and “the ‘inevitable long wait’ that exacts ‘a frightful toll’” on the murderer. By contrast, Justice Thomas retorted: “It is incongruous to arm capital defendants with [a Byzantine] arsenal of ‘constitutional’ claims [to] delay their executions, and simultaneously to complain when executions are inevitably delayed” (3, 2).

            Incongruous but ever so devious and calculating!

            Say this for Justices Brennan and Marshall. They did not hide their death penalty opposition while mangling the Constitution. By contrast, concealing their actual absolutist personal values and realizing they could not get away with outright abolition of capital punishment, other justices schemed to slowly eliminate it while faking support. Justice Stevens was a classic, voting to save convicted murderers when his was a deciding vote but often not when he lacked the votes. Moreover, after openly declaring his refusal to uphold any death sentence (see Part I), Justice Blackmun revealed this: “One of the Justices called me, and I don’t think I should say this, but he said, I’m very proud of you for taking that position.”

            There can be little doubt that some justices have flatly opposed capital punishment but felt it impolitic to disclose that – resorting instead to destroying it on a case-by-case basis, waging a “guerilla war,” in Justice Scalia’s words (see Part II). Thus Stevens and Breyer voted for contrived delays as a ploy to advance their true goal. As Breyer (3) put it, delay is not compatible with the death penalty. In other words, abolish it.

            It is justices such as these, not voting flatly to abolish the death penalty, who have turned the legal system into a nightmare for homicide survivors and a farce undreamed of by the Constitution’s Framers.

            The mostly anti-death penalty media conceals a closely-kept secret from the public. Justices who inflict torture upon grieving survivors, to save brutal murderers and rapists, violate federal law and their own precedent. Unlawful torture, as defined by federal statute, includes the intentional infliction of “severe…mental pain or suffering.”  The high court itself has declared that “a punishment is barred by the Eighth Amendment [even when there is] no physical mistreatment, no primitive torture[, if it] subjects the individual to … ever-increasing fear and distress.” Yet justices torture survivors to protect the torturers of their loved ones. Either justices are oblivious to the pain they inflict upon victimized survivors or, like Rhett Butler, they just “don’t give a damn.” 

                                    (f) Safety in Numbers  

            During an epidemic, people normally cry out to do more to alleviate the problem. For example, legislators enact laws calling for stiffer sentences when there are crime waves. Supreme Court justices, however, have turned this common sense on its head. According to a 5-4 anti-capital punishment majority, the Constitution – or at least their rewritten maimed version – decreases (28) punishment for a crime when the number committing it rises. One can go through the actual Constitution with a fine-tooth comb without coming close to finding a single word placing a ceiling on the number of executions elected representatives and juries may impose for particular barbaric acts. Yet five justices, on their own, have dictated that there can never be capital punishment for rape, including the rape of little girls, no matter how brutal or how much injury and trauma are caused. Because there are so many rapists, allowing capital punishment for them would cause too many executions and therefore be inconsistent with the justices’ concoction that it is “necess[ary] to constrain” (29) this penalty.

            This is what happens when the focus is upon criminals instead of their crimes. When to their advantage, punishment then depends upon criminals as a group rather than the crimes they individually commit. If it will benefit the depraved criminal, the glories of “individualized sentencing” are thrown out the window. The depraved individual is rewarded, not for his own past, but for what has utterly nothing to do with him or his brutal deeds. Here, fairness is not “similar punishments for similar offenses.” Fair punishment is not based on comparison with sentences others receive, but rather depends upon how many others perpetrated the same outrage, even if they all receive the same sentence. As the number goes up, the maximum punishment goes down. The barbarian is rewarded because too many of his “professional colleagues” do the same thing.

            Thus “fairness,” according to five justices, requires that child rapists should be protected because there are so many of them. There would be just too many executions to be tolerated by the sensibilities of justices doing everything they can to limit the number of executions, not because this runs counter to the Framers’ intent but because justices don’t like capital punishment, regardless of what the public and juries want.

            Talk about safety in numbers – for the rapists!                 

                                    (g) How the Worst Aggravating Factor Became the Best Mitigating Factor 

            For nakedly indefensible irrationality employed to save the lives of murderers championed by Fairness Phonies, nothing can surpass turning the most aggravating factor into the most mitigating factor. When a barbarian’s record of achievement results in a purported life sentence without parole and he cannot receive a death sentence, any new savagery he manages to commit is automatically mitigated to zero.

            Consider Lemuel Smith, Gary Haugen and Ehrlich Anthony Coker. Each of these sterling murder-advocate heroes received zero punishment for the most savage acts of brutality.

  • A bare majority of New York State’s highest court judges rewarded Smith for his prior barbaric misdeeds, so that he received no punishment for the torture, rape and murder of a 31-year-old mother of three and prison guard, Donna Payant (including biting off her nipples, his trademark). The judges upheld the guilty verdict while neutering its significance by making it punishment-free.
  • For a new barbaric murder, Haugan, a rapist-murderer, received the personal fairness blessing of Oregon’s Gov. Kitzhaber (see Part III), who blocked Haugan’s execution. Kitzhaber was apparently unconcerned about the fairness of subjecting a second human being to extreme barbarity enabled only by a grant of “mercy” for prior barbarity.
  • Not to be outdone, seven U.S. Supreme Court justices prohibited any punishment for Coker’s rape, under threat of death, of Elnita Carver three weeks after she gave birth.

                        Coker was rewarded for having a record so bad that he was already under a life sentence for previous rape, attempted murder and successful murder. To be clear, the justices reversed Coker’s sentence for raping Carver on the ground that adult rape was not serious enough to warrant the death penalty. Four justices even declared that rape could be innocuous; after all, “Mrs. Carver was unharmed.” (Lest anyone wonder why this series refers to Justice White as idiosyncratic, these words were written by him. He was all over the capital punishment map, which does not render invalid the many excellent observations he did make. Like Longfellow’s little girl, when he was good, he was very, very good; when he was bad, he was horrid.) 

            Adding further irrationality, had Coker raped Carver before rather than after he had committed murder, perhaps the Carver rape conviction could have been used as an “aggravating” factor to justify a death sentence for murder. But since he raped Carver after the murder conviction, for which he already had been given a “life” sentence, he could not be punished for the new rape – the justices’ door prize for the prior murder. In other words, Coker was given a gold star for the sequence of his crimes.

            Because Coker committed the murder (and other barbaric acts) first, that was not sufficiently aggravating to permit execution for Carver’s rape. In fact, nothing could be sufficiently aggravating to warrant capital punishment for rape, period.

            A decade after justices bestowed the gift of life upon rapists with a history of murder, they asserted that the Constitution prohibits the people’s representatives from mandating capital punishment for any further savagery by those already serving an ostensible life sentence, including rape and murder. In other words, the absolutely worst depraved criminals were granted a “Constitutional” opportunity to avoid punishment for all additional violence they commit – either in jail or by escaping or after inexplicable release.       

            Perhaps victims should be thankful for small favors. Anti-capital punishment justices did not ban the death penalty for murder; they only ruled that it could not be mandatory for new murders and that it could never be imposed for any additional barbaric violence short of murder committed by a convicted murderer. The latter includes threatened murder, attempted murder and the most vicious assaults and rapes. So, at a minimum, as far as justices are concerned, any convicted murderer supposedly serving a life sentence is free to commit, without fear of further punishment, any violence he wishes if his new victims do not die.

            And, of course, where state judges, legislators and governors have banned or repealed the death penalty, even additional murders can be committed free from punishment.  


            It is widely accepted that a convict’s record must be considered, because the worst records warrant the severest sentences while lack of a bad criminal history justifies leniency. Indeed, that is behind Supreme Court justices’ anti-capital punishment fiats dictating that any and all “mitigating” evidence, including a convicted murderer’s record, must be admitted so as to minimize death sentences.

            This might make sense in an ivory tower on a judicial Mt. Olympus. However, as Justice Holmes famously wrote, “[t]he life of the law has not been logic: it has been experience.” Painful experience and loss of innocent lives demonstrate that, if a predator already serving a life sentence cannot be executed, he has a free pass to commit, without fear of further punishment, new violent crimes (including rapes and murders) for the rest of his life. Other than death, what punishment can be added to a life sentence?

            As Chief Justice Burger succinctly explained, unavailability of the death penalty prevents any “effective punishment” and renders states unable to “protect innocent persons from depraved human beings.”

            When a criminal’s record is so depraved that it immunizes him from any punishment for further crimes, far from making sense, this is lunacy on stilts.

            Was this really required by the Constitution’s Framers? Is it really fair?

            And this is only part of the irrationality of the so-called “justice system”! 



          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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