A New Standard for Death Penalty?

July 12, 2009

Lawyers for a convicted killer in New York are asking the New York Court of Appeals for a new standard to sustain the death sentence for their client.  Lawyers for Angel Mateo are seeking an interpretation of the New York constitution to require proof of a defendant’s guilt “beyond all doubt” to justify an execution.  They urge that a special rule for death penalty cases is required, a standard higher than the centuries-old one of “beyond a reasonable doubt.”

Mateo confessed in 1996 to killing four people in Rochester.  The Court of Appeals is New York’s highest court.  Observers do not believe the court will adopt the new standard, but the fact that the suggestion has reached this high in the judicial system is a new development.

There is a growing public concern about the possibility that innocent people might be put death.  In state after state, death row inmates have been proven scientifically innocent of the death for which a jury convicted them.  Never until DNA evidence could such a certainty of innocence be obtained.  Now people have doubts about the system that allowed this for so many years, a system that was supposed to prevent this.

Increasing the level of certainty required for conviction is one of a handful of proposals to modify capital punishment that have gained attention around the country in the last few years.  James Liebman, a Columbia Law School professor, has written widely on the death penalty.  He said the proposal to increase the standard of proof in death penalty cases has been endorsed by some influential criminal law experts since the 1960’s.  He favors the idea, which he says “is a very logical outgrowth of the view that we can have a death penalty and make it reliable.”

Frank Keating is a former governor of Oklahoma, and former senior Justice Department in the Reagan administration.  When he was governor, he sought in 2001 to change the death penalty law in Oklahoma to require proof “to a moral certainty.”   “I think if you’re going to take somebody else’s life, you need to be convinced to a moral certainty, ” he said.

The idea of increasing the level of certainty required for conviction is one of several proposals to modify capital punishment in the last few years.  Some of the proponents are death penalty supporters who say the only way to bolster public support for execution is to ensure that only those who clearly deserve the ultimate punishment are put to death.

Prosecutors oppose this “beyond all doubt” proposal because they believe it would block all death penalty cases. They believe it is not possible to eliminate all doubt.  Michael Arcuri, district attorney in Utica, New York, and president of the New York State District Attorneys Association, said, “If that standard is adopted, we will not have the death penalty in New York.”

A New Jersey Supreme Court Justice, James H. Coleman, Jr., dissented in a death penalty decision in 2002.  He wrote that there is a special need of reliability in capital cases.  He said the same standard “used to determine whether an individual should be found guilty of possession of a marijuana cigarette should not be used in determining whether an accused can be executed.”

Another law professor, Robert Blecker, favors the death penalty. A professor at New York University, he suggests that the finding of guilt continue under the traditional standard of persuasion of “beyond a reasonable doubt.”  He says a higher standard would make convictions impossible.   However, he suggests then using the higher burden in the second stage of the bifurcated proceeding, the penalty phase of the trial.  He says when jurors determine whether to sentence someone to death, they should be required to meet a higher standard.  He said that standard should be proof to a moral certainty that a defendant should die.

The justifications for the death penalty, of course, have taken a hit since the implementation of sentences for “Life without the Possibility of Parole.” If such a sentence means exactly that, and it always has in Oklahoma, then doesn’t the state get its due from such a sentence?  No criminal defense lawyer expects a defendant sentenced thus ever to get out.  Nevertheless, death penalty proponents point to societal revenge, satisfaction and other philosophical achievements that they believe only the death penalty can satisfy.  Maybe so.  But it really is not much of a deterrent.  Ask anyone who is facing a death penalty charge or was convicted.  All of them, they never expect to get caught.  So how could the penalty possibly affect them?


Does the Death Penalty Deter Crime?….New Jersey says No

September 15, 2008

The State of New Jersey last December became the first state to abolish the death penalty since the U.S. Supreme Court in 1976 allowed states to impose the death sentence.  The legislature enacted the measure after a special state commission recommended the abolition a year before. New Jersey has not executed since 1963.  After the 1976 Supreme Court decision, New Jersey reinstated the death penalty in 1982..  The state had chosen lethal injection and built an elaborate facility to carry out the injections, but never used.

The commission found the death penalty was more expensive than life in prison and had not deterred murder.  The legislature’s bill was approved by Governor Jon Corzine, a death penalty opponent, December 27. 2007.

New Jersey’s replacement of the death penalty with life without parole spared eight inmates.  Juries had sentenced four dozen people to the death penalty, but all but eight had been overturned in appeals.  A state appeals court ruled that the state’s lethal injection procedure was unconstitutional, and the state rewrote the procedures, but they were never finalized and expired in 2005.

One of those awaiting execution was Jesse Timmendequas, a sex offender whose crimes sparked Megan’s Law.  Timmendequas was convicted of murdering 7-year old Megan Kanka in 1984.  As a result New Jersey enacted a law requiring law enforcement agencies to notify the public about convicted sex offenders living in their communities.  Other states have copied this law, certainly including Oklahoma.

Last year,  the legislatures in Nebraska, Montana, Maryland and New Mexico debated bills to repeal those states’ death penalties, but each measure failed, often by a slim margin. Oklahoma continues to enforce the death penalty and shows no indications of repeal. However, It will be interesting to see if other states find that life imprisonment is less expensive and change their laws, which could cause Oklahoma to rethink this position as well.