Re: Death Penalty: vision 2020: Eric E.

Ah, yes, the "jail is fun" line. In Idaho, death row inmates live in solitary confinement 24 hours a day (with the exceptions noted below) in cells approximately 8 x 12 feet, w/o access to a "day room" or "rec room," or recreation with any other person. Several days a week, they get out of their cell for an hour to "recreate" by themselves in a similarly sized cinder block room w/o windows and a grated roof that is located outside and in Boise's elements. They also get out of their cells for a shower - no more than 3 days a week, and on rare occasions get sick and go to the doctor. Warm, bed? I suppose, especially compared to living homeless on a street, which is probably what your hitchhiker was doing. Guess what? Most of the inmates at Idaho Maximum Security Institution are there because we want them to be, not becasue they purposely got caught so they could go to jail and eat three square meals a day. Yes, many inmates at IMSI have a TV. Warm, fuzzy and comfy? Nope. The picture you have of jail is what we give rich, well connected folks who get to go to Club Fed. Ask Charles Fain what Idaho's death row solitary confinement experience was like for years on end, innocent of the crime.

| By the way, have you seen the numbers of first-degree
| murderers who are sentenced to life, and yet are later paroled anyway? Have
| you seen the stats on the number of years the average first-degree murderer
| serves in the U.S.? I won't venture to remember the exact data, but I
| remember upon reading those numbers having to pick my jaw up off the floor
| and feeling simultaneously nauseous.

If you go there you will see that 35 of 38 Death Penalty states have LWOP as an option. Eleven of 12 non-death penalty states have it, too. Interestingly, Texas does not, because Texas loves the death penalty so much that Texas doesn't want to have to tell a jury about the fact that LWOP is available and see the number of death sentences go down. (Numerous studies show that if real LWOP is an option, juries are much less supportive of the death penalty. One of the main sentencing factors that concern jurors is the safety of the community: frequently the jury wants the death penalty to be sure that a killer doesn't get out and do it again, but if the jury knows the defendant can't get out, because of LWOP option, jurors opt for LWOP in significant numbers.)

This is exactly what the federal system provides with the Federal Sentencing Guidelines. Instead of a range, of say 5-20 years for a crime, they now do these crazy calculations of crime, weight of drugs, or whether defendant was armed, etc., and add up points under the Guidelines and say person X, you are sentenced to 137 months in prison. Justice Breyer helped write the Guidelines when he was on the First Circuit of the US Court of Appeals.

The Guidelines take away most of the federal judge's discretion to evaluate the defendant individually and fashion a penalty that seems appropriate depending on the individual person. It used to be that the federal judges could recognize that all people are not the same, that they have differences, and that some convicts may be more worthy of an extended stay in the joint than others who may benefit by a shorter stay. Many federal judges hate the Guidelines for their inflexibility.

I can see two sides to this issue of flexible versus inflexible sentencing authority in a judge, however, and am not sure which is the better policy Inflexible sentencing authority precludes the high profile instances of rich, well connected criminals "getting off easy," but that same inflexible authority also may keep a judge from showing mercy and shortening the sentence for someone that the judge thought deserved a break, not because the judge was doing a favor for a rich crony's friend, but because the judge thought the defendant really could have benefited from a break. The Guidelines also preclude a judge from "throwing the book" at someone.

W/o researching extensively, I cannot tell you about state systems of inflexible, non-paroleable sentencing schemes across the country, but the pendulum swung well to the right on this one in the Reagan administration and hasn't really swung back. Mandatory minimum sentences are very common in many state systems, too. Three Strikes and You're Out laws ( e.g., life imprisonment for a burglary if it's your third felony conviction) are popular items too.

But I don't quite understand this fixation of yours on parole. When parole is a statutory option, judges know that; they don't sentence in a vacuum. When parole is allowed for a crime with a certain sentencing range, the judge picks a sentence, knowing what normal parole rates are, calculating the sentence accordingly, and factoring in the probable parole "cut" to whatever sentence he may decide is appropriate. In other words, when a convicted defendant might expect to get rid of a third of his or her sentence by parole reduction, the judge knew that when he chose the sentence. Based on that judge's knowledge, he could impose a sentence within a broad range of years to obtain a reasonable facsimile of the time to be served that the judge desired.

Eric wrote:
| If you look at the facts, and stay objective-- far, far more innocent people
| suffer all sorts of horrors and injustices, and far, far more ill is done to
| our society by criminals who are set free too soon by our current system, or
| let off entirely, than the number of folks who have served time or been
| executed unjustly. Yes, the latter is horribly offensive to our visceral
| justice-meters, but if you look at the former honestly and comprehensively
| you will see that the one batch of suffering and unfairness far outweighs
| the other.

If I get your point here, you are saying that more innocent victims of crime suffer all across our country of 250 million people from crimes committed by someone with a prior record (who got parole or less than the minimum sentence for the first crime) than there are people on death row who have been imprisoned or executed unjustly. I am not sure how comparing the suffering of innocent people on death row to victims of crime, generally, is related to the harm that is done by someone with a criminal record, generally. Likewise, I don't see how those who are set free a bit earlier than the maximum sentence for any crime or get paroled and thereafter commit any crime has anything to do with whether we should retain the death penalty. Are you suggesting that we should lock up a juvenile delinquent for life, because he did something wrong, or might? Is it the concept of parole that offends you? I would be astonished if you could support the notion that there is a statistically significant increase in the rate of recidivist crimes committed, e.g., in the first year out of jail (or any equal time period following release) by someone who was paroled from the same criminal conviction and sentence (e.g., having served 4 years of a 5 year sentence), as compared to the recidivist rate in the first year following release from prison of another person with the same conviction and sentence who stayed in for the full term (in my example the full five years). If you're not making that point, (which I believe is not supportable in any event), I think your logic suffers from a false premise and the fallacy of the undistributed middle, or it oughter'.

I welcome requiring several actual eye witnesses of the crime itself as an additional element of the crime of "capital murder" -- to be part of the prosecution's burden of proof and necessary to make a defendant eligible for the death penalty. In the event we have any new capital trials, requiring our, capital juries to find that, would go a long way toward eliminating some wrongful convictions for capital murder.

That being said, mistaken eyewitness identifications are the most significant component cause of the wrongful convictions that have been exonerated by DNA testing, so don't think that more than one eyewitness automatically makes the system "air tight." In sixty of the first eighty-two DNA exonerations, mistaken eyewitness identification played a major part in the wrongful conviction. I believe it's closer to 80% now. If one searches in Google for the three words, mistaken, eyewitness and identification, you will get an idea of how widespread the problem is.

An interesting, powerful article re mistaken eyewitness identification is "I Was Certain, but I was Wrong", by Jennifer Thompson: http://www.truthinjustice.org/positive_id.htm The "truthinjustice.org" site is an especially interesting one, and the entire set of links re eyewitness error is something that more people should peruse. It is a site run by "a non-profit organization working to free wholly innocent men and women convicted of crimes they did not commit, and to prevent wrongful convictions by educating the public regarding the vulnerabilities in the U. S. criminal justice system that make these miscarriages possible." The Thompson article can be found at the bottom of the page that appears when you click on the "eyewitness" link.

Unfortunately, this is not true at all. DNA testing is capable of providing exonerating evidence in only a small number of cases (primarily rape and close physical struggle cases). The victim's blood, which is present in many cases, is not exonerating, though it contains DNA and is generally available at a crime scene. DNA is an excellent tool for obtaining convictions when the police can get clothes from a defendant and match the clothes to the victim's DNA. However, as a device for protecting against wrongful convictions based on mistaken eyewitnesses, DNA is frequently useless. It is the perpetrator's DNA, not the victim's, which must be present in order to exonerate someone who contends that they were wrongly convicted. The lesson of the DNA exonerations is that we convict people more frequently than we we ever imagined for crimes they did not do, even though someone said they saw who did it, or some forensic wag said a crime scene photo of a shoe print "matched" some poor bloke's shoe. When you recognize that DNA is not present to exonerate someone in the vast majority of cases, you should realize that the system is and will remain a long way from "air tight."

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