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

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


            Those who preach the virtues of convicted murderers have no more attentive congregants than the murderers themselves, who faithfully parrot the sermons they hear. Consider a few examples:

  • Milton Mathis, who murdered two and tried to murder a 15-year-old girl, left paralyzed from the neck down, declared that his execution was part of a “mass slaughter [by] people who have no respect for humanity …The system has failed me. This is a miscarriage of justice … Life is not supposed to end this way.”
  • In order to obtain legislation enabling future murderers to commit their deeds securely and completely comforted that they will not be risking their own lives in robbing others of theirs (Part I), Connecticut Gov. Malloy had to agree not to save past murderers already convicted. This left Daniel Webb in high dudgeon. (He had merely slain a 37-year-old bank official when she resisted his attempted rape 23 years earlier.) Although Malloy favored death penalty repeal because, in his view, capital punishment is unfair, Webb bitterly complained that Malloy himself was “unfair” in not sparing him. Webb looked in the mirror and concluded “I’m still human.” Also, he did not deserve his confinement conditions; and he had evolved and grown.
  • Joshua Maxwell, prior to his execution, shared his accumulated capital punishment expertise: “This isn’t going to change anything. … This is creating more victims.”
  • Beunka Adams, executed for murder (he also committed robbery, rape and attempted murders), authoritatively pronounced himself to be “not malicious,” his vicious crimes being mere “real stupid … mistakes.” He lectured: “[K]illing of any kind isn’t right” (especially, of course, the execution of Adams).
  • The disinterested final wisdom of murderer Bobby Lee Hines was: “I don’t believe that taking my life will solve anything. … [I]f I was locked up for the rest of my life, that would be more of a punishment.”
  • Cal Coburn Brown, already described in Part IV, upon considered reflection, declared prior to his execution: “I only killed one victim. I cannot really see that there is true justice.” (If Brown’s second victim lived, it was not because he did not try his best to savagely kill her.)
  • In his endless fight for parole, interviewed by ABC’s Nightline on August 28, 1981, the 1968 murderer of Robert F. Kennedy, Sirhan Sirhan, explained: “My criminal history as compared to other prisoners here is totally negligible. In fact, there is none other than this incident.” He contended that he should be released, not for his benefit, but out of “respect for the American people” and their constitutional mandate of “equal treatment…and justice under the law.”   

            These few examples are more than enough to show how brutal murderers absorb and regurgitate what their advocates spew. First, notwithstanding the views of others, they pronounce themselves to be “human.” Second, they see themselves as victims of unfairness and injustice who “deserve” a “second chance.” Third, they say committing murder is just a mistake made by a different person, whose execution “won’t solve anything.” Fourth, mimicking Justices Brennan and Marshall (see Part I), they equate their own lawful executions with the unlawful brutality they committed against utterly innocent victims. (One can only wonder if Brennan also equated lawful imprisonment with kidnapping.  By such reasoning, if it can be called that, it is wrong to lawfully imprison violent criminals because that is no different from unlawful kidnapping.) Fifth, they say that life without parole is a harsher punishment than execution but do not explain why they fight for decades to avoid execution.

            Sixth, showing remorse is a staple of sentence reduction and parole. Well, Sirhan Sirhan repeatedly said he was sorry, yet he could not avoid showing his true feelings; viz., that murdering a major presidential candidate was a “totally negligible” and merely a lone “incident” in an otherwise exemplary life. What could better show the folly of looking for “remorse”?  Many surely game the system, saying what others want to hear. If most of them weren’t dishonest, they would never have ended up where they did.

            Seventh and most importantly, murderers-turned-parrots make clear what is wrong with the focusing upon criminals rather than their crimes and, particularly, the utter unfairness of what anti-death penalty justices call “individualized sentencing.”


            Sirhan Sirhan and Cal Coburn Brown actually had a valid point. But its significance is not what they thought. If they did commit “only one” murder each, what does that show?

            If fairness criteria are confined to comparing punishments of convicted murderers, it always can be labeled “unfair” when those guilty of less barbarity are punished more severely than others responsible for greater barbarity. This raises a critical question Fairness Phonies dare not face and cannot answer.

            Is there one free murder or rape “on the house”? Why should society sacrifice the lives of unsuspecting innocents to spare those guilty of the worst crimes? Must there be an additional rape or murder before the most severe penalty is imposed?  And remember, as shown in Part VIII, five justices have dictated that there can never be capital punishment for rape, no matter how depraved, no matter how severe the injuries, no matter how young the victim and no matter how life shattering.

            “Fairness” comes easily when one side is ignored. Here, victims – not just past victims but guaranteed future victims – are turned into Soviet style nonpersons. But those who aren’t Fairness Phonies will ask: does fairness to those with a proven capacity for barbarity require the inevitable sacrifice of innocent individuals who have never harmed anyone? What about fairness to them?    

            In response, redemption and rehabilitation would be trotted out by those whose prime concern is the welfare of the most violent criminals. It cannot be denied that there have been successful rehabilitations. However, there remains the problem that, pardon the expression, there is no way to “precisely calibrate” rehabilitation, no way to confidently distinguish one who will never repeat his crime from one who will. The most brilliant minds (e.g., Norman Mailer and William F. Buckley, Jr.) have been fooled.

            Thus, promoters of rehabilitation should be seen as sophisticated gambling hucksters. But they don’t wager anything of their own and the stakes are much higher than anything found in Las Vegas.

            Not to put too fine a point on it, rehabilitation gamblers have repeatedly caused decent people they don’t know or care about to pay with their lives. Why exactly is that fair?


            The question of fairness comes down to this. Either those capable of rehabilitation must be sacrificed or, to save them, innocent people must be slaughtered. It is impossible to save the lives of convicted murderers without avoidably causing additional wholly innocent law-abiding people to be subjected to violence, including murder.

            That presents no problem for those who shed no tears over innocent victims but celebrate the most brutal individuals ever born – biologically human to be sure, but not entitled to be considered human in any other sense. For example, in May 2014, Prof. Martin E. Marty strongly disagreed “that the death penalty is a deterrent against crimes of the most heinous sort,” while condescendingly adding that capital punishment support “is more a matter of faith than reason.” George Orwell had the perfect response: “One has to belong to the intelligentsia to believe things like that: no ordinary man could be such a fool.” Does one have to be a professor to fail to grasp that executing convicted murderers deters some of them from new violence against people who have never been convicted of anything?  Is such a denial “reason,” or itself pure “faith”? And leading death penalty opponents openly prefer the murders of 100 decent, law-abiding victims to the lawful execution of one convicted murderer (see Part II). The American Civil Liberties Union also doesn’t care. It unashamedly concedes that some murderers murder again and that, indeed, one in 12 on death row had prior homicide convictions , but protests: “the only way to prevent all … recidivism is to execute every convicted murderer – a policy no one seriously advocates ….” (Emphasis added.)

            Again, it may be confidently suggested that many law-abiding people, likely a substantial majority, would not require a precision computer to reject this value choice. They would wonder what kind of claimed “moral superiority” dictates that the lives of the innocent must be sacrificed to save the lives of the guilty.

            They would have…


              As noted at the outset, anti-death penalty justices have complained that some are executed for murders similar to those committed by others not executed. Parrots Sirhan and Brown, with “only one” murder each, echoed that it was unjust for them to be treated more severely than others guilty of multiple murders. Although one death penalty opponent still refers to “the most heinous murders [as] the sort that earn the harshest sentences,” an anti-death penalty victims’ group has objected to capital punishment for “particularly heinous murders,” because this implies that “other murders are ordinary … [E]very murder is heinous, a tragedy for the lost one’s family. The death penalty has the effect of elevating certain victims’ families above others.”

            Although they have a painful element of validity, especially for victims, these oft-repeated objections do not make the case for abolishing capital punishment but for increasing its use. The objectors should be asked not why one murderer is treated less harshly but why other murderers should not be treated more harshly. Many suffering victimized survivors of homicide victims might rightfully ask why the murderers of their loved ones should receive no death sentence when other murderers do. Why are many murderers not executed for murders similar to those for which other murderers are executed? Why shouldn’t every murder be treated equally harshly rather than equally leniently? 

            Why shouldn’t the burden of justification be shifted from supporters to opponents? Opponents ought to justify not executing murderers when others are executed. And this applies all the more powerfully because convicted murderers can only be saved by knowingly requiring the murders of new innocent law-abiding victims, in greater numbers than executed murderers. Must a second murder be committed before “death eligibility” is not only established but required? (Of course, thanks to justices, it is now impossible ever to make the death penalty mandatory for any crime including the most savage rapes and murders.)    

            Penal codes prohibit conduct, period. For example, they do not make murder by those with no criminal record unlawful but exempt from punishment new murders by convicted murderers serving life sentences. Exemption from punishment for a crime effectively renders it lawful and actually not criminal. If specified conduct is unlawful, should punishment depend upon who engages in it?

            If the answer is “no,” Sirhan Sirhan’s complaint cannot be avoided. However, if “equal treatment under the law” dictates that the sentence should be the same for everyone who commits a particular crime, especially a crime that demonstrates a capacity to commit the ultimate and most unfair violence, it does not follow that the treatment should be equally lenient rather than equally severe.

            The “only one murder” line suggests reconsideration of placing great weight on a convicted murderer’s criminal record. Again, the crux of the problem is its focus upon criminals rather than their crimes. As Justice Rehnquist pointed out and even Justice Blackmun conceded (see Part IV), the so-called “individualized sentencing” requirement is not in the written Constitution.

            So is it asking too much to punish a criminal for the crime he commits, regardless of who he is?

            Justices who take the Constitution and its written words seriously have stressed that it contains absolutely nothing that prohibits the people, through their elected representatives, from making the death penalty mandatory for specific crimes. In one of his various death penalty opinions, quoted in Part V, Justice White hit the nail on the head: a crime may be “so serious that every person who commits it should be put to death regardless of … his character [or, alternatively] the commission of certain crimes conclusively establishes that the criminal’s character is such that he deserves death.” 

            In other words, there are far too few death sentences and executions, not too many.  

            The problem with the “especially heinous” finding rejected by the justices in the Cartwright case (see Part V) is not that it is too vague. The problem is the judicial “individualized sentencing” concoction, including the requirement that “aggravating factors” be found in order to impose capital punishment (with five justices having the last word as to “acceptability”). Fairness Phonies seek to minimize punishment for the worst depravity, not only by maximizing “mitigation,” but also by minimizing “aggravation.” Remember (see Part V), Indiana Symposium panelist Pokorak sought exclusion of torture and rape as aggravating factors because “almost every murder involves ‘torture.’” Admitting evidence of these factors would not serve his anti-death penalty purpose of “narrowing” death “eligibility.”

                  Nevertheless, if almost every murder involves torture, it makes no sense to try to “calibrate” levels of torture in determining punishment. There is …

            A Fairness Solution. To achieve fairness to victims, a concept not on the Fairness Phony radar screen, the death penalty should be mandatory for any unlawfully intentional robbery of the life of an innocent, law-abiding person, or for knowingly aiding a violent crime where this possibility is predictable.

If it is futile and hurtful to try to compare the pain and terror suffered by different murder victims or the grief experienced at the loss of loved ones, why shouldn’t the death penalty be mandatory for deliberate murders resulting in any level of suffering and grief? This would have at least two salutary consequences:

            (1) It would eliminate the heartbreaking belief among some victims’ families that others had been elevated above them, that the loss of others’ loved ones was greater than the loss of theirs. Agonizing comparisons, which cannot and should not be made, would not need to be made.

             (2) There would be no second-chance do-overs for proven killers to repeat their barbarity.

Finally, if the people of an ostensibly representative democracy wish to establish a death penalty for other barbaric crimes, such as raping little girls and ruining their lives, that should be mandatory too.



          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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