On the Death Penalty, Juries, and Tsaraev
Some questions they ask potential jurors:
I am strongly in favor of the death penalty, and would have a
difficult time voting against it, regardless of the facts of the case.
(true or false)
I generally favor the death penalty, but I would base
a decision to impose it on the facts and the law in the case. (true or
false)
I am generally opposed to the death penalty, but I believe I
can put aside my feelings against the death penalty and impose it if it
is called for by the facts and law in the case. (true or false)
Okay. So I could put away my "feelings" against the death penalty and impose it if "it is called for by the facts and the law in this case". I thought that the whole point of the abolitionist's position is that the death penalty is never rightly called for by any facts or law?
It is a peculiarity of the American justice system that the prosecution is allowed to exclude jurors who say they would never vote for the death penalty.
On what baisis is this done? We are given to understand that it would be unfair for the prosecution to have to convince someone who didn't believe in the death penalty to vote for the death penalty? But why is that unfair? A suspect is entitled to a jury of his peers. If, say, 30 or 40% of the general population is opposed to the death penalty, why is that view excluded from the jury?
I am very confident that a simple study would show that death penalty enthusiasts would also be more likely to vote guilty just because they are sure than any person accused of any crime probably committed the crime. So doesn't this process actually stack the jury?
Well, because then we would never get the death penalty, because there would always be one or two jurors who would not vote for it. And that is wrong because? Because the people in favor of the death penalty demand the right to prevail! It's not fair that people who disagree with me get to have even one member of the jury who doesn't share my desire to kill someone.
Turns out the courts have considered exactly that point. And responded with a somewhat bizarre ruling:
"In Lockhart v. McCree, the results of the empirical research on the effects of death-qualification came before the Supreme Court. The court held that the process of death-qualification does not unconstitutionally bias juries towards a verdict of guilt. Justice Rehnquist criticized the research, but ultimately the Court held that general empirical research could not decide the issue; instead, a defendant would have to demonstrate that his or her own jury was biased." So proof would consist of being found innocent.
Nicely parried Rehnquist! Scatalogical reasoning worthy of a Scalia, along the lines of: you have to prove that your specific all-white jury was biased against you, not just that the principle of excluding all blacks from juries is unconstitutional. Therefore, you Alabama prosecutors just go right ahead and continue to empanel whites only juries! If you think that sounds like another 5-4 ruling along partisan political lines, you're correct. Did anyone, while arguments were presented, ask Clarence Thomas why he was allowed on the Supreme Court? After all, no one would ever be able to show that a perpetually white Supreme Court was ever biased in any particular decision.
The smell around the issue has become a bit more pugent with the trial of Dzhokhar Tsarnaev for the Boston Marathon bombing.
The lastest poll shows that less than 20% of Massachusetts citizens believe Tsarnaev should be executed. In a country that positively adores punishing people and killing them when given the opportunity to excuse their wish to kill people, that number is astonishing: less than 20% of the population of Massachusetts are barbarians.
So why are they even talking about the death penalty? Because certain government officials in Massachusetts, in the State Attorney's office, decided that they needed to transfer the case to the Federal Government precisely so that Tsarnaev could be executed, in spite of the fact that Massachusetts does not have the death penalty.
And... is that not possible grounds for a future appeal?
If they are going to have the death penalty, it should absolutely be public. If the public can't stand watching, then vote to abolish it. Nobody should be allowed to support the death penalty and then go cower in a little box in the corner of the basement and pretend not to know that someone, on their behalf, is going to murder someone else, in the coldest blood possible, because this is an execution, not a bar fight. It is pure cold blood. The executioner should never wear a mask: what do you have to be ashamed of? What is it? Why don't you want us to know that you are willing to kill people, as long as it's dressed up with symbolism and ceremony and piety.