April 24, 2024

Death Penalty Blues

Earlier this week the Supreme Court, hot on the heels of a long-overdue decision in against partial birth abortions, took a step backwards by overturning the death penalty sentences in three Texas murder cases.

The rulings in the cases of LaRoyce Smith, Brent Brewer and Jalil Abdul-Kabir said the New Orleans-based U.S. 5th Circuit Court of Appeals and the Texas Court of Criminal Appeals incorrectly analyzed whether faulty jury instructions prevented Texas juries from considering mitigating evidence that might have persuaded them to spare the men from execution.

Smith was convicted in the 1991 slaying of a worker at a Dallas Taco Bell. Brewer was convicted of fatally stabbing a man during a 1990 robbery in Amarillo, and Abdul-Kabir, also known as Ted Calvin Cole, was convicted of strangling a San Angelo man during a robbery in 1988.

When Brewer, Abdul-Kabir and Smith were tried, jurors determining their sentences were asked two yes-or-no questions: whether the murder was deliberate, and whether the killer would continue to be dangerous in the future. Two “yes” answers meant a death sentence. One or two “no” answers meant a life prison term.

In later years, after the Supreme Court found those instructions inadequate because they prevented jurors from properly considering mitigating evidence, Texas judges began crafting additional instructions. They told jurors that if they thought there was any mitigating evidence that warranted sparing the killer’s life, they could simply change one of their “yes” answers to “no.”

The high court also rejected that approach, and now Texas jurors must answer a third catch-all question, asking whether any mitigating evidence in the case is strong enough to spare the killer’s life.


The instructions, which were meant to help jurors weigh evidence such as a defendant’s low intelligence, mental illness or childhood abuse, have not been used in Texas since 1991. But they were used during the trials of many current death row inmates.

The Texas Attorney General’s Office estimates the number of cases that could be affected by Wednesday’s ruling at close to 50, while defense attorneys say the number could total 70 or more.

Justice John Paul Stevens, part of the 5-4 majority, wrote that the 5th Circuit’s conclusions

“fail to heed this court’s repeated warnings about the extent to which the jury must be allowed not only to consider mitigating evidence, or to have such evidence before it, but to respond to it in a reasoned, moral manner and assign it weight in deciding whether a defendant truly deserves death.”

Chief Justice John Roberts disagreed:

saying the lower courts had done the best they could to follow Supreme Court guidance.

He called Wednesday’s majority opinions by Stevens and Kennedy “utterly revisionist.”

“We give ourselves far too much credit in claiming that our sharply divided, ebbing and flowing decisions in this area gave rise to ‘clearly established’ federal law,” the chief justice wrote.

Instead, Roberts said, the high court has provided “a dog’s breakfast of divided, conflicting, and ever-changing analyses.”

An American has a better chance of getting struck by lightning than hearing Stevens admit there are valid uses for the death penalty. It’s all about ideology, even on the SCOTUS. Witness Justice Ginsburg’s outrageous comments about the partial birth abortion case as a prime example.

What’s even more irritating about Steven’s pompous self-righteousness than his brazenly illogical failure to think is the fact that it’s utterly irrelevant.

Juries are told repeatedly by judges and lawyers that they are only allowed the barest possible leeway in their decisions. Guilty or not. This evidence can be consider. This cannot. You can discuss this but not that. You can ask this question but not that one. The idea is to control the jury into following a specific path of action so that individual input is minimized.

This is necessary to keep verdicts somewhat standardized in similar cases. Justice, after all, should be predictable as well as blind.

However, we should all recognize that these instructions are usually ignored. The fact that a man or woman in a black robe gives a juror an instruction that as much as says he/she is a voting robot does not mean that juror will accept the admonition.

I believe that the jurors in these cases considered mitigating evidence when rendering their verdict of guilty + the death penalty. I believe it because that’s what people do, on or off of the jury. The judge’s exact phrasing of the instructions are meaningless for this reason.

But Stevens, a die-hard liberal whose vote is as predictable as it is wrong, would never accept that reasoning, not when his liberal bias demands otherwise.

Given these predators’ insistence on killing again, it’s ludicrous to put law-abiding citizens in harms way by allowing them the opportunity to be paroled, escape, or be sprung on appeal. Let’s hope that the respective D.A.’s do the right thing and make sure that they won’t get those chances.

My perspective: The victims deserve our empathy, not the killers.


Marc is a software developer, writer, and part-time political know-it-all who currently resides in Texas in the good ol' U.S.A.

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10 thoughts on “Death Penalty Blues

  1. I’m not going to respond to the rest of your comment at this time because I don’t feel like I’m sufficiently prepared. I neither disagree nor agree with the parts I’m not quoting at the moment.

    That said,

    “In the recent partial birth abortion case, it seems to me that simple justice was done. An (admittedly small) number of young lives were spared and the principle of “thou shall not kill” was upheld. Seems very American and correct to me.”

    There are several things about this paragraph I find interesting.

    1) “Thou shall not kill” is a religious commandment, not a human law. While many human laws express the same concept in different language, your use of this particular phrase in this particular turn of language indicates that you’re coming at this particular SCOTUS decision from an ideological and/or religious bent. Nothing good ever comes from that. (And I’m not just talking about you there, that’s a general statement)

    2) “Seems very American … to me” is not a valid legal justification.

    3) The whole paragraph practically screams “They agreed with my morals, therefore their decision was correct”. I’m sorry, but that is a very poor reason in my view. And it’s really my original point. They did something you approve of, so it’s correct.

    I’m much more interested in how correct the decision was in the framework of case law, past precedent, past SCOTUS decisions, and internal consistency. I’ve heard some not so good things about the decision from that standpoint, however, I’ve yet to find a really good review.

  2. Russell, one of the problems that you have in saying that the Partial Birth Ban case was good is that it appears, in your eyes to not be relying on precedent. From that standpoint you are assumed to be relying on the decision of Roe v Wade and later cases that find that the right to kill an unborn child is found in the emanation from the penumbra of the 4th amendment’s right to protection from search and seizure. Now THAT is a stretch of law to fit a desired outcome. THAT is the kind of decision that, much as Plessy v Ferguson, colors the decisions of the court and tarnishes the validity of SCOTUS. Its why you see movements to write an Amendment about marriage to prevent judges from claiming the equal protection applies and forcing the country to recognize what they don’t want to. Heck, if stare decisis had held sway then Brown v Board of Education would never have been decided the way it was. After all the court had decided that separate but equal was just that. How could they reverse themselves?

    It used to be that SCOTUS was seen as the weakest of the branches of gov’t. One President even asked the Court how they intended to enforce their decision. Now with the sweeping interpretation of the commerce clause SCOTUS can pry into almost any aspect of US life and a group of unelected, unaccountable people can make decision, almost on a whim, that change the direction of the US.

  3. I like the phraseology of “Thou shalt not kill” because it’s succinct and pithy. That it raises the hairs on the necks of left-of-center folks is a cheap hack but it is still interesting to see what comes out of it.

    As you say, these words have been essentially carved in legal stone in virtually every country in the world, even those with no discernible moral character. Most state it as “You cannot kill without a damn good reason” but the meaning is the same.

    I’ve considered your statement “They agreed with my morals, therefore their decision was correct” thoroughly and, while there is a grain of truth in it, I don’t think it’s as accurate as saying “They agreed with my opinion…”.

    Capital punishment is not universally endorsed by Christians and I think a strict interpretation of the New Testament would not accept it as a valid means of punishing criminals.

    Even so, I support its use when the evidence clearly indicates guilt and intent on the part of the murderer.

    In your blog post you call my reasons for this support a pure appeal to emotion, if memory serves. That’s not really true. There are legitimate reasons of public safety to consider when dealing with violent criminals and one cannot regard a life sentence as having that meaning.

    There are also economic costs to consider. I seem to recall a figure of $20,000 per year to host a murderer on death row. For the sake of round numbers, let’s say our perps go in young and die at 70. That’s a cool million bucks down the drain for each one.

    And though you do not seem to consider punishment a reasonable response, I do believe that the victims’ loved ones deserve to see punishment meted out on their behalf and consider this far more important than the rights the killers forfeit when they slay their victims, often in particularly grisly ways.

    Overly emotional? I don’t think so.

  4. Where did you get the idea that I don’t consider punishment a reasonable response? I do. I just think that the process of *getting* to the punishment needs to be as impartial and fair as possible.

    I think there are some crimes that are worthy of death. I don’t think there are many of them, and I think that if you are going to put a person to death, the standard of proof for the government needs to be extremely high. And if the government can’t meet that standard of proof, regardless of how one *feels* about it, then that person should be let off.

    The rules of engagement, such as it were, are designed in order to give the defendant as fair of a chance to that as possible.

    Perhaps Roe vs. Wade was wrongly decided in the beginning. I’ve heard arguments that make a case for that and I’m not necessarily saying they’re incorrect, they make a compelling case (I believe that the fundamental decision was probably correct, but that the court really stretched in trying to find a rationale for it, which is not appropriate). But two wrongs don’t make a right. As I’ve stated, I have not made up my mind about whether the latest abortion ruling is correct (you seem to think that I already have), but whether or not Roe vs. Wade is correct or incorrect has no bearing on whether or not that decision is correct or incorrect. The only bearing that possibly exists is precedent, and I’m all for overturning precedent if there’s a good reason to, and if there’s a good argument in the overturning opinion for doing so.

    I don’t have an opinion yet on whether or not the abortion decision is correct or incorrect, because I have neither read it or found a good legal analysis that will help me to make up my own mind. According to your blog, you had already decided it was correct the minute you found out it was issued because you agreed with it. That’s your prerogative, but I’m trying to point out that that is a purely visceral response, and has very little to do with whether it is actually well-reasoned, impartial, or correct.

    I admit to having the same kind of visceral response when Judge Jones ruled against the Dover Board of Education. I am not immune to that. However, after reading the opinion, I found myself agreeing completely with Judge Jones. That was a well-reasoned opinion. If it had been well-reasoned, I would have respected the opinion as the rule of law even if I had disagreed with it. (whether it is possible to have a well-reasoned argument against that particular point of view I will leave for another time.) And, conversely, if it had not been well-reasoned, I would have been very upset with Judge Jones for allowing his personal prejudices to get in the way of the impartial execution of law, while secretly glad it turned out that way anyway – I *am* human. However, I would have gladly admitted that Judge Jones was completely full of crap, even while content with the turnout.

    That’s all I’m trying to say – it is completely human to be glad when things turn out the way you want to – but not at the expense of looking at things with a critical eye and understanding that just because they turned out how you want doesn’t make the decision correct. It just makes you happy. 🙂

  5. After re-reading your post I found that this was the quote that got me started thinking you were taking issue with the punishment of criminals:

    “Instead, he [ed. Black Shards] seems only concerned with punishing. Punishing is just fine when they have been allowed due process, but what the court is asked to determine in this case (and in many cases) is what due process consists of and whether or not the defendants have had a fair shake at that due process.”

    I see that you’re not saying that – I should have checked up on it before posting my comment. My apologies.

    I’ll go that one better and say that, yes, after a criminal has been convicted by a jury of his peers in a fair trial I’m pretty much only interested in punishment at that point. I’m certainly not interested in a Justice Stevens splitting legalistic hairs to promote his agenda of rolling back death sentences.

    If the guy isn’t guilty or his lawyer was incompetent or the judge suppressed evidence that exonerates him, great. Let’s have a new trial and see justice done. But let’s don’t pretend that jurors’ minds are influenced one way or another by phrasing of the judge’s instructions. It’s insulting, frankly, as is Stevens’ insistence on putting his own beliefs ahead of the American people.

    Regarding this comment about the partial birth abortion case:

    “According to your blog, you had already decided it was correct the minute you found out it was issued because you agreed with it. That’s your prerogative, but I’m trying to point out that that is a purely visceral response, and has very little to do with whether it is actually well-reasoned, impartial, or correct.”

    Should I substitute someone else’s judgment for my own?

    While there are any number of cases in which I’ll defer to someone else’s greater knowledge, it would be a moral failure for me allow a court decision in which 44% of the justices of the SCOTUS rule in favor of a woman’s right to terminate a viable baby solely on her authority to go unchallenged.

    I believe that the majority’s decision was well-reasoned, correct, and at least as impartial and more in keeping with the spirit of life, liberty, and the pursuit of happiness than the opposition’s position.

    Call it visceral if you want. 20 years of analyzing, designing, implementing, and debugging computer software gives one a lot of practice at picking out the truth from the competing noise and political red herrings. This one was easy.

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