Sunday, October 09, 2005

don't know what i'm talking about...

here's an excerpt from the paper i just posted to the course website for my capital punishment class. it's neither well-written nor well thought out--i wrote it very quickly, and pretty much at the last minute. it was a response to other students' thoughts on the reading assignment for this week's class (effectiveness of defense counsel in capital cases). basically, my response paper is just more proof that i'm a crazy liberal who doesn't trust the system.

The standard for juries in capital cases exists to ensure “justice”. In this sense, however, justice is applied as a means to make sure that verdicts can be handed down without regard to an individual juror’s personal views on whether the death penalty is right or wrong. The death certification process binds a jury to the requirements that statutes impose on capital sentencing. In other words, through this process, a “just” verdict is one that is not in conflict with the requirements of sentencing statutes; a death-certified jury poses no threat to what a legislature—and by extension, a democratic majority—has defined as being an appropriate rendering of a death sentence.

But what becomes of justice in terms of effectiveness of counsel? Is it inconsistent with the policy behind death-certifying a jury to insist that a defendant bear the burden in showing that his or her counsel was constitutionally ineffective? Justice in the death-certification process is concerned with enabling the criminal legal system to function unencumbered by a juror who may be unwilling or unable to play by the rules. But does this insistence on the system go too far when applied to the standard outlined in Strickland v. Washington, 466 U.S. 668 (1984) for proving ineffectiveness of counsel?

. . .

the point of my response paper actually didn't focus on death-certified juries (i.e., getting rid of any jurors who would not consider a death verdict), but the whole notion goes against how i understand "jury of one's peers". on some level, i understand that the death penalty is legal and juries must be unanimous and whatnot, but a lot of state sentencing statutes are very explicit as to how death sentences are to be rendered. many of them say that a sentence of death MUST be given if aggravating circumstances are found that are not outweighed by any mitigating circumstances. how does this leave sentencing in a jury's discretion? granted this can be very subjective, but i read it as very restrictive. perhaps it functions in a socially desirable way, allowing jurors to wash their hands of any guilt that may result from sentencing a human to die. but to me it seems to create a process that allows for the death penalty more often than may be "necessary".

i'm silly for even starting to write about this now, as i don't have the time to get into it, but i wanted to put something up here nonetheless. perhaps more on this later...

for now, back to work.

1 Comments:

At 2:06 PM, Blogger Moon said...

to play devil's advocate with, perhaps, a bit more skill than your classmates, i offer a few observations.

1) one "death certifies" a jury in the same way that one "law certifies" a jury by inquiring whether a venireperson is prepared to uphold the law as promulgated by the lawmaking body/ies of in the relevant jurisdiction. a juror who says i simply cannot impose the death penalty is effectively saying that in at least one area said juror will not uphold the law. hence, death certification is necessary to ensure that the law on the books is upheld; it's not a juror's function to make constitutional determinations. indeed, we have a constitution to prevent these sorts of things.

a jury of one's peers defined as one prepared, in effect, to flout the law according to conscience sounds great in a capital case given a populace deeply ambivalent on the issue, assuming you don't like the death penalty. you end up with majoritarian justice, something none of us wants given the other consequences.

2. courts presume effectiveness of counsel, hence the burden of rebuttal falls on the party challenging the competency of counsel. this is a practical matter. losing a case hardly denotes incompetence, nor, under the governing law, does a decision that turns out to be horrible in hindsight, if rationally chosen. the alternative would be to presume incompetence of capital counsel, a completely unworkable standard.

3. as for aggravation vs. mitigation, its the "outweigh" determination that preserves for juries dispositive discretion; the term is necessarily underdetermined.

if you were going to attack this, however, you might focus on the category differences between statutory aggravators and statutory mitigators, which make comparing them a taxing task for any jury, especially given that certain aggravators are all but guaranteed to apply as a matter of objective fact. murder committed in the perpetration of a felony, for example, which is an aggravator in PA and probably in most other death penalty jurisdictions, is almost always applicable and furthermore is a very concrete thing. the mitigators -- tending to focus on home life and upbringing and poverty and a history of abuse -- is far more protean, and furthermore rests on subjective matters as to which many jurors lack sympathy. there are still plenty of people in this country who pretty much reject the institution of psychoanalysis, and yet many mitigators reek to the layperson of that sort of buck-passing aspect of modern psychology.

my $0.02 of devil's advocacy, and not necessarily reflective of my convictions.

 

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