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

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. 

CONTINUED FROM Part X

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.

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              “The Court thus assumes the role of a finely tuned calibrator of depravity….”                                                                                                                                                                                                                                                      Justice Byron White

REVIEW AND ANALYSIS: FOLLY OR MACHIAVELLIAN CYNICISM?

To review key points presented above:

            While some death penalty opponents may believe what they say, flagrant dishonesty is central to the cause of most of those dedicated to saving convicted murderers. Fairness Phoniness is thus a diabolical brew concocted from cynically disingenuous pretense, bald assertion, rampant hypocrisy and double-dealing.

            As stressed in Part II , while death penalty supporters emphatically do not seek conviction of the innocent, which provides neither protection from nor punishment of the guilty, Phonies endlessly make bogus claims of executions of the innocent. Using sleight of hand that would be the envy of the best card sharks, they cite protections that work as evidence that they don’t. This involves two extremely specious fast shuffles.

            First, they repeatedly but falsely assert that convictions overturned on procedural (16) grounds are the same as “exonerations.” All too often, to paraphrase Judge Cardozo, guilty criminals go free because the police blunder. Furthermore, many police acts denounced by some justices are not seen as blunders by other justices. The latter attribute such blunders, if they are blunders at all, to the “utterly senseless” morass created by their colleagues.

            Second, the Phonies take a giant leap of illogic by proclaiming that the very safeguards which prevented wrongful executions somehow indicate (14) that wrongful executions occurred. In truth, the Phonies have sought and sought again to establish one actual wrongful execution. They have failed to find their Holy Grail; but if they did, it would prove little. Also, while unconcerned about “acceptable” mistakes that result in easily foreseeable and inevitable numerous recidivist rapes and murders by spared previously-convicted murderers, the Phonies demand 100% perfection in determining guilt.

            Disingenuously seeking to exploit the truism that nothing human is perfect, they demand abolition of capital punishment by arguing that it is not perfect. Nevertheless, the Phonies not only ignore all the procedural safeguards that avert wrongful convictions, again, they unapologetically and hypocritically shrug off the gruesome atrocities caused by the many imperfections required to keep indisputably guilty murderers alive.   

            Thus, as explained in detail elsewhere, it is not supporters but opponents who seek (and cause) death for the innocent. Opponents are well aware – but do not care – that sparing convicted murderers “perfectly” guarantees avoidable death for unsuspecting upstanding new victims.

            Of necessity, because they confront a system that provides countless safeguards, for all their media-abetted propaganda about convicting the innocent, the Phonies’ main efforts lie elsewhere. In almost all cases, they advocate precise scientific calibration of sentences for convicts whose barbaric guilt is not in doubt.

            Nevertheless, it must be stressed, there is a vast difference between protecting the accused and protecting the fairly convicted, between protecting the presumption of innocence and resorting to any ruse to help the clearly guilty to avoid just – or any – punishment.    

            To achieve the latter, the fairness scam adds insistence upon 100% sentencing perfection to the call for 100% conviction perfection. The added demand is based on the unproven bald assertion that sentences can be precisely calibrated. In turn, this requires denial that sentencing entails inherently imprecise conflicting moral and value judgments not amenable to scientific or mathematical calibration. This is itself a value judgment because any proposed calibrations are based upon values and value judgments.

            Thus, it is sheer fiction to say that it is possible to “finely tune” depravity and “calibrate” it “scientifically” so as to determine “culpability” with “moral accuracy.”

            Simultaneously, the Phonies oppose and anti-death penalty justices prohibit mandatory capital punishment for any crime, imposing a totally fabricated unconstitutional substitute requirement: “individualized sentencing.” Once a sentence depends on an individual and not his crime, it is not necessary to attend an Indiana Symposium to understand the inevitability of convicts being sentenced differently for similar crimes and harm done. When the Phonies make a u-turn to proclaim “unfair” any sentence greater than the lowest sentence for a criminal act, the result must be no punishment whatsoever for any violent offender

             At bottom, the calibrate-with-moral accuracy clarion call for fairness is a Trojan horse. Justice Blackmun, Indiana Symposium participants and many others have contended that, without precise calibration, the death penalty should be abolished altogether. It cannot be stated too often that, notwithstanding all the sophistry, outright abolition is the obvious ultimate goal of pretend-aspirations for fairness.

            Short of that goal, the Phonies’ fallback option is to assure that death penalty is “narrowly constrained” and “rare” (a result of their own unconstitutional and duplicitous machinations, which they then turn around and use to contend that rarity itself proves unfairness). Yes, a few token long-delayed executions to avoid galvanizing a public that supports capital punishment. But this version of fairness means that most barbarians have the luxury of knowing they can commit their “heinous” brutality with little fear of risking their own lives.

            This “achievement” has resulted from …

                        (A) The Fairness Phony Two-Step     

            In 1972, five justices suddenly decided to prohibit unrestricted jury death-sentencing discretion, thereby ending existing capital punishment and producing a fierce and swift negative reaction. Because public support was too strong to end capital punishment completely, justices resorted to slow evisceration, so that few would notice and each particular case would be insufficient to rouse significant opposition. In 1976, they restored discretion but hamstrung it by requiring “reasoned moral decisions” involving limited “aggravating” and unlimited “mitigating” factors to assure that “death eligibility” was extremely “narrow.”

            Justices’ fancy footwork thus essentially involved two steps: (1) shift attention from the victim to the crime by requiring but limiting “aggravating” factors; and (2) shift focus from the crime to the criminal by requiring unlimited consideration of “mitigating” factors, no matter how irrelevant and far-fetched.

                              (1) From the Victim to the Crime. No criminal should be punished more than any other convicted of the same act, regardless of the level of harm and suffering inflicted upon victims. What counts here is “moral culpability” of the criminal act, as Justice Stevens and Alan Dershowitz contended (see Parts IV and V). Punishment should not depend upon who the victim was or how many others were affected. To promote this position, justices ordered juries to find “aggravating” factors to show requisite culpability, as though intentionally committing unlawful murder were not sufficiently aggravating in itself. At the same time, justices sharply limited any aggravating factors that could be presented to juries and seized for themselves the power to second-guess adverse jury findings. For four years, victim impact evidence was banned.

            Because the Phonies want punishment assessed in a vacuum, based on an abstraction, “moral culpability” of criminal acts, without considering the results of those acts, evidence of actual harm to actual victims must be avoided; any sentence greater than the lowest sentence for any criminal act is “unfair.”

            In other words, murderers who commit acts causing the greatest harm to victims should be rewarded because other murderers committing the same acts failed to “accomplish” as much harm.

                                     (2) From the Crime to the Criminal. Although one goal is to avoid weighing actual harm done by focusing upon the abstract “moral culpability” of the criminal act, the Phonies also about-face to shift attention from the crime to the criminal. Thus, anti-capital punishment justices “demanded” sentences based on the “uniqueness” of the individual murderer regardless of the similarity of his murder(s) to other murders and then complain when the sentences are not “similar for similar crimes.”  Based solely on their own personal morality, justices ordered that convicted murderers be permitted to introduce anything under the sun to “mitigate” murders “too heinous to be explained.” Knowing that focusing on criminals rather than crimes inevitably must result in differing sentences for essentially identical crimes, the Phonies again deem it unfair to mete out a sentence greater than the least severe for a given crime. No punishment for a given act should be greater than the lowest and most lenient sentence any criminal anywhere received.   

 

            In sum, for Fairness Phonies, it’s any port in a storm. They pursue any stratagem that will result in the lowest possible sentence. No sentence should be given that is greater than the lowest sentence for any criminal act, regardless of actual harm suffered by victims. Those who inflict the greatest suffering should benefit from similar criminal acts resulting in the least suffering. Moreover, those who have the least “mitigating” evidence to offer should benefit from the lowest sentences given to those with the most such evidence because, after all, there should be “similar sentences for similar crimes.” 

                        (B)  It Never Ends    

Fairness Phony cynicism and hypocrisy never end. Consider a few other examples:

  • Unmoved by the horrendous and protracted torture inflicted by murderers, the Phonies demand that the latter not suffer for a second if executed. One at a time, they find fault with each execution method while promising an “acceptable” alternative. When the alternative is adopted, they not only protest it, they do everything to make sure that it cannot be effective.
  • It takes no little chutzpah for Phonies to exert pressure on physicians not to participate, as well as on drug manufacturers and sellers not to provide the most effective and painless drugs for lethal injections, and then protest that less than the best personnel and drugs result in “suffering” for brutal murderers who heartlessly inflict immense suffering upon victims – and often enjoy doing so!
  • Generally, Phonies demand a reward for abuses they themselves perpetrate – going so far as to seek abolition of capital punishment because of delays they create solely to create delay.
  • Phonies do all they can to add unnecessary costs to capital punishment and then contend that it should be abolished because of the unnecessary costs they themselves caused.
  • Phonies utilize all available chicanery and abuse of the legal system, imposing severe mental anguish upon homicide survivors by needlessly and unjustifiably stretching out death penalty cases for decades. Then with a straight face, they insist that an execution should not take place because the delay was inhumane to the very convicted murderer who sought countless delays.
  • Phonies assert that every murderer is a “human being” with “human dignity” equal to that of his victims, but turn around and treat the victims as not human, not worth mentioning or remembering and, hence, as “faceless strangers” deserving of no dignity.
  • Phonies contend that, in order to “narrowly constrain” capital punishment, death sentences should be reserved for the “worst of the worst”; but in seeking to abolish capital punishment, they reward the “worst of the worst,” already serving life sentences, with a special privilege: to commit further violence, including rape and murder, secure in the freedom from fear of any new punishment whatsoever.
  • Phonies justify abolition of the death penalty by selling “life without parole” as a viable substitute punishment. But once they secure the substitution of a “life without parole” option, they turn on a dime to argue that that, too, is unjust cruel and unusual punishment which also should be made unlawful or declared unconstitutional. In other words, a punishment which should be banned should replace a punishment which should be banned.
  • Judicial Phonies have provided special protections for career criminals unavailable to first-time offenders. Thus, New York State’s highest court judges have thrown out murder convictions of the “overwhelmingly guilty” if they are represented by lawyers in cases involving prior unrelated crimes they have committed.
  • Phonies seek precisely calibrated “moral accuracy” in sentencing even those proven guilty by overwhelming evidence. But their accuracy obsession does not apply to the verdict of guilt itself. Judicial Phonies who have tied the legal system in frivolous knots, not remotely required by the Constitution, would rather turn the clearly guilty free – to further prey upon the law-abiding – not because they are innocent, but because convicted in violation of fantasized “rules of the game.”
  • Phonies demand avoidance of jury consideration of the full extent of the harm done, including reference to the victim, but instead seek to confine consideration to “moral culpability” of the criminal’s act. However, if a victim lives through a murder attempt, why then, the harm done by the same acts becomes very important: a violent criminal whose victim survives despite his best efforts to commit murder can only be charged with attempted murder.
  • To Phonies, a tiny number of executions of convicted murderers is shocking, but hundreds of thousands of murder victims should not be given a second thought (or even a first thought).
  • Phonies manipulate numbers. To disparage capital punishment, they talk about a falling homicide “rate,” ignoring the real number of victims. But when alleging the “horrors” of capital punishment, they refer to the actual number of executions and occupants of death rows, concealing the tiny percentage of all murderers that that really constitutes.
  • Phonies repeatedly, loudly and falsely proclaim that executions of the wrongly convicted are rampant. At the same time Phonies protest executions of the clearly guilty are too rare for the few executions of the guilty that do occur to be fair.
  • Prominent Phonies have argued that DNA should be used to prove innocence but is unreliable when DNA conclusively establishes guilt. In other words, no proof of guilt can ever be conclusive and therefore no murderer should ever be executed.

CONTINUED IN Part XII

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          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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