‘Case of the Week’ 6 (NCFCA): End the Death Penalty

Important Disclaimer: We pretty much just throw these together over the weekend, and don’t put a lot of work into them. Case of the Week cases are not subject to the same editorial process and stringent quality standards as the COG 2011 sourcebook, and are frequently contributed by non-COG authors. You will likely find material and sources in these cases that would not appear in the sourcebook. Also the backups are not intended to be complete. That said, we hope these cases will be useful to you; enjoy!

About the AuthorJoseph Hughey has been debating in Region Nine for four years, and has been involved in NCFCA ever since he was twelve years old. A very experienced researcher, Joseph is part of the COG 2011-2012 team.

1AC: Abolish the Death Penalty

By Joseph Hughey

It is because the death penalty grossly fails to serves any of its purported goals, and because the alternative of life without parole serves the death penalty’s goals better with less disadvantages that my partner and I stand firmly Resolved: The United States Federal Government should significantly reform its criminal justice system.

For the purpose of clarity, let’s begin with some resolutional analysis.

A. Definitions

Significant is defined as “having or likely to have influence or effect” (from the Merriam-Webster Online Dictionary, 2010)

Reform is defined as “to put or change into an improved form or condition” (from the American Heritage Dictionary, 2010)

Criminal Justice System is defined as “the process by which people who are accused of crimes are judged in court” (from the Cambridge Advanced Learner’s Dictionary, 2011)

B. Weighing mechanisms

We will be running a comparative advantage case, and ask you to judge the round based on a comparative advantage paradigm, meaning that if we can prove that our plan can diminish the status quo harms (still to be presented), our plan should be considered solvent and advantageous and should merit an affirmative ballot.

Next, let’s examine the characteristics of the status quo in…

Observation I: Background

1. The goals of capital punishment are deterrence, retributive justice, and incapacitation

Rachel C. King (J.D. Northeastern University School of Law, counsel for the Subcommittee on Crime, Terrorism and Homeland Security for the Committee on the Judiciary of the House of Representatives), “No Due Process: How the Death Penalty Violates the Constitutional Rights of the Family Members of Death Row Prisoners,” published by Berkeley Electronic Press’ Legal Series (Paper No. 1584), August 19, 2006 <accessed July 5, 2011> http://law.bepress.com/cgi/viewcontent.cgi?article=7295&context=expresso

In its post-Furman jurisprudence, the Supreme Court has acknowledged several state interests that may support capital punishment. These interests include deterrence, retribution, [and] incapacitation, and denunciation and vindication of legal and moral order. Deterrence and retribution are the two most commonly cited reasons for maintaining the death penalty.

The death penalty fails to serve any of these stated goals, and often works to the opposite effect, as we see in…

Observation II: Justifications

Justification 1: Capital punishment is unjust

A. Innocent people sentenced to death

Prof. Victor Streib (professor of law at Ohio Northern University, attorney specializing in violent crime and the death penalty, frequently cited by the U.S. Supreme Court), “CLASSIC ARGUMENTS FOR AND AGAINST THE DEATH PENALTY,” Elon Law Review (Vol. 1 Issue 1 pp 1-16), 2009 http://www.elon.edu/docs/e-web/law/law_review/Issues/Streib.pdf

The ultimate end result of discrimination, caprice, and just plain bad luck can be clear error: convicting and sentencing to death an innocent offender. The death penalty system is operated and controlled by human beings who are not immune to human error. [later, in the same context:] Over 120 innocent persons have been sent to death row in the current era (since 1973), and several other states have ordered a moratorium on executions until the causes of these fatal errors are found.”

The death penalty also has a violently negative effect on other innocent victims; the families of death row inmates.

B. The innocent suffer with the guilty

Rachel C. King (J.D. Northeastern University School of Law, counsel for the Subcommittee on Crime, Terrorism and Homeland Security for the Committee on the Judiciary of the House of Representatives), “No Due Process: How the Death Penalty Violates the Constitutional Rights of the Family Members of Death Row Prisoners,” published by Berkeley Electronic Press’ Legal Series (Paper No. 1584), August 19, 2006 <accessed July 5, 2011> http://law.bepress.com/cgi/viewcontent.cgi?article=7295&context=expresso

Many people lose the support of their friends and community when a family member is on death row. One woman whose brother was on death row said, “[a]ll my friends . . . just abandoned me. They didn’t support me at all during the years, and when I came down for [my brother’s] execution, not one of them showed any support. Not one of them called or came over, NOT ONE!” This woman eventually developed high blood pressure, migraine headaches, depression and sleeplessness as a result of her brother’s arrest.

Not only does the death penalty punish the innocent along with the guilty, but capital defendants are also given grossly incompetent legal representation, severely lessening their chance at a fair trial.

C. Capital defendants are given incompetent representation

Prof. Scott Vollum (Ph.D. in Criminal Justice, Associate Professor of Justice Studies, James Madison University), Prof. Stacy Mallicoat (Ph.D. in Sociology, Assistant Professor in the Political Science and Criminal Justice Division at California State University—Fullerton, CA), and Prof. Jacqueline Buffington-Vollum (Assistant Professor in the Political Science and Criminal Justice Division at James Madison University), “Death Penalty Attitudes in an Increasingly Critical Climate: Value-Expressive Support and Attitude Mutability,” Southwestern Association of Criminal Justice, published in Southwest Journal of Criminal Justice (Vol. 5, Issue 3, pp 221-242), 2009 <accessed July 2, 2011> http://www.utsa.edu/swjcj/archives/5.3/5%20Vollum%20et%20al.,%20Death%20Penalty%20Attitudes.pdf

“Organizations such as the American Bar Association, countless observers and participants in capital trials, capital jurors, and scholarly research studies have all testified to the grossly incompetent legal representation offered to many capital defendants during their trials and sentencing. In addition to the often ill-prepared, ill-equipped, inexperienced, or simply incompetent representation in many capital cases, numerous cases of mentally ill, drunken, and sleeping lawyers have been documented in recent years.”

These three points put together shows how capital punishment cannot serve its goal of justice.

Justification 2: Capital punishment does not deter

A. Non-deterrence

Prof. Scott Vollum (Ph.D. in Criminal Justice, Associate Professor of Justice Studies, James Madison University), Prof. Stacy Mallicoat (Ph.D. in Sociology, Assistant Professor in the Political Science and Criminal Justice Division at California State University—Fullerton, CA), and Prof. Jacqueline Buffington-Vollum (Assistant Professor in the Political Science and Criminal Justice Division at James Madison University), “Death Penalty Attitudes in an Increasingly Critical Climate: Value-Expressive Support and Attitude Mutability,” Southwestern Association of Criminal Justice, published in Southwest Journal of Criminal Justice (Vol. 5, Issue 3, pp 221-242), 2009 <accessed July 2, 2011> http://www.utsa.edu/swjcj/archives/5.3/5%20Vollum%20et%20al.,%20Death%20Penalty%20Attitudes.pdf

“In spite of decades of studies, researchers have failed to find the death penalty to be a general deterrent (i.e., the death penalty has not been found to deter or stop other people from committing murder).”

Not only does capital punishment not deter murder, but it has actually been found to encourage it in what has been labeled the “brutalization effect.”

B. Brutalization

Prof. Victor Streib (professor of law at Ohio Northern University, attorney specializing in violent crime and the death penalty, frequently cited by the U.S. Supreme Court), “CLASSIC ARGUMENTS FOR AND AGAINST THE DEATH PENALTY,” Elon Law Review (Vol. 1 Issue 1 pp 1-16), 2009 http://www.elon.edu/docs/e-web/law/law_review/Issues/Streib.pdf

Some empirical research on this phenomenon has found that the murder rate goes up, not down, following an execution. This finding, dubbed the “brutalization effect,” is essentially that the death penalty stimulates more murders than otherwise would occur. The common explanation for the unexpected result is that the death penalty “brutalizes” the surrounding community, both diminishing respect for life in general and providing the unfortunate example of our highest leaders in public office intentionally taking a person’s life. In any event, despite the professed claims of American political leaders, these research findings indicate that the death penalty does not actually serve a general deterrent function and apparently has the opposite effect.

Capital punishment is not a deterrent for murder and instead encourages it through the “brutalization effect.”

Justification 3: Incapacitation is unnecessary

Incapacitating violent offenders to ensure that they do not repeat their crimes is an appealing notion, but the fact is that violent criminals hardly ever repeat their crimes after imprisonment.

Rachel C. King (J.D. Northeastern University School of Law, counsel for the Subcommittee on Crime, Terrorism and Homeland Security for the Committee on the Judiciary of the House of Representatives), “No Due Process: How the Death Penalty Violates the Constitutional Rights of the Family Members of Death Row Prisoners,” published by Berkeley Electronic Press’ Legal Series (Paper No. 1584), August 19, 2006 <accessed July 5, 2011> http://law.bepress.com/cgi/viewcontent.cgi?article=7295&context=expresso

“Furthermore, releasing convicted murderers back into the general public does not necessarily pose a threat to society. Recidivism rates among released murderers are extremely low, suggesting that the concern that convicted murderers will kill again may be exaggerated. Moreover, where courts don’t impose the death sentence, they will usually sentence offenders to life imprisonment, which is a sufficient punishment alternative to ensure an offender does not commit further crimes.”

If incapacitation is ever necessary, life imprisonment can serve the purpose just as well as capital punishment, as we’ll see later.

Now, to improve upon this broken system, we provide…

Observation III: The Plan

Enforcement: Congress, the president, and any appropriate, existing government agencies

Mandate:

1. The death penalty will no longer be applied in Federal cases.

2. At the earliest possible opportunity, the U.S. Supreme Court will render the death penalty unconstitutional in all its forms for all purposes.

Funding is not needed as the plan is purely legislative.

All Affirmative speeches have the intent to clarify the plan as needed.

As we have shown, capital punishment has proven to fail at accomplishing any of its stated goals, and in fact has often provided the opposite negative effects. Life imprisonment, on the other hand, can further all of these worthy goals better than the death penalty and with less injustice to society, as we see in…

Observation III: Solvency

1. Life imprisonment serves as an incapacitant

Prof. Victor Streib (professor of law at Ohio Northern University, attorney specializing in violent crime and the death penalty, frequently cited by the U.S. Supreme Court), “CLASSIC ARGUMENTS FOR AND AGAINST THE DEATH PENALTY,” Elon Law Review (Vol. 1 Issue 1 pp 1-16), 2009 http://www.elon.edu/docs/e-web/law/law_review/Issues/Streib.pdf

Death penalty opponents note that other than the extremely small chance of escape from prison, an imprisoned murderer also is incapacitated, essentially permanently, from committing any murders outside the confines of prison. Therefore, it may be that long term imprisonment is nearly as effective an incapacitant as is the death penalty. In any event, research reveals that murderers are very unlikely to repeat their crimes, so the overall need for an incapacitant is unclear.”

2. Life imprisonment serves all of capital punishment’s goals with less injustice to families

Rachel C. King (J.D. Northeastern University School of Law, counsel for the Subcommittee on Crime, Terrorism and Homeland Security for the Committee on the Judiciary of the House of Representatives), “No Due Process: How the Death Penalty Violates the Constitutional Rights of the Family Members of Death Row Prisoners,” published by Berkeley Electronic Press’ Legal Series (Paper No. 1584), August 19, 2006 <accessed July 5, 2011> http://law.bepress.com/cgi/viewcontent.cgi?article=7295&context=expresso

“Because of the fundamental nature of this right, the government may not infringe upon it “unless the infringement is narrowly-tailored to serve a compelling state interest.” The death penalty is not narrowly-tailored because it fails to serve the compelling penological interests for which it purportedly exists—to deter crime, to incapacitate offenders, to restore moral order, and to serve as a form of retribution. Lengthy incarceration, including life in prison without parole, more effectively accomplishes these penological goals with less damage to the family relationship.

Life imprisonment serves the goals of justice, deterrence, and incapacitation better than capital punishment and with much less collateral damage. It makes sense to abolish the death penalty because it does more harm than good, and to reinstate it with a system we know to work.

We’d like to close with the words of Professor John Lamperti, a professor of mathematics at Dartmouth College. In 2010, he said…

“If executions protected innocent lives through deterrence, that would weigh in the balance against capital punishment’s heavy social costs. But despite years of trying, this benefit has not been proven to exist; the only certain effects of capital punishment are its liabilities. The death penalty in New Hampshire serves no social purpose, and its abolition would be a practical and a moral step forward.”

(Prof. John Lamperti (Professor of Mathematics, Dartmouth College), “Does Capital Punishment Deter Murder? A brief look at the evidence,” Dartmouth College, March, 2010 <accessed July 2, 2011> http://www.math.dartmouth.edu/~lamperti/my%20DP%20paper,%20current%20edit.htm)

The system will not fix itself. The only way to fix it is by affirming the resolution with an affirmative ballot.

Backup: Abolish the Death Penalty

Justification 1A) Innocents sentenced to death

Fallible jurors are biased to convict

Prof. Arnold H. Loewy (George R. Killam professor of law, Texas Tech School of Law), “THE DEATH PENALTY IN A WORLD WHERE THE INNOCENT ARE SOMETIMES CONVICTED,” published in Texas Tech Law Review (Vol. 41, No. 1, pp 187-198), Fall 2008 <accessed July 6, 2011> (JH)

To illustrate, if a jury is 70% convinced of a defendant’s guilt and does not wish to turn him loose, it might well convict him of murder. Assuming the jury assessed all factors properly, it would be right seven out of ten times. Of course, it would be wrong the other three out of ten times. Those three, multiplied many times over, make up the cadre of innocent people who have been convicted. Of course, the jury believed that each was guilty, and most of the time it was correct. But, as any sports gambler knows, seven to three (and even greater) underdogs sometimes prevail.”

Innocent people are sentenced to death regularly

Prof. Lawrence C. Marshall (professor of law, Northwestern University School of Law, Legal Director for the Center on Wrongful Convictions), in a Walter C. Reckless Memorial Lecture entitled “The Innocence Revolution and the Death Penalty,” published in the Ohio State Journal of Criminal Law (Vol. 1, pp 573-584), January 1, 2004 <accessed July 5, 2011> http://moritzlaw.osu.edu/osjcl/Articles/Volume1_2/WalterCReckless/Marshall_1_2.pdf (JH)

The question, then, is no longer whether innocent people are convicted or whether innocent people are sentenced to death. We now know that this happens with a regularity that none of us ever imagined before. This is a very new revelation. Only ten years ago some very reasonable people believed that the frequency of wrongful convictions was so low that the issue was not worth a place in the public policy debate. Only ten years ago, some very reasonable people believed that our system was so committed to accuracy, so replete with procedural protection, that it was virtually unthinkable that innocent defendants would be convicted in any criminal case, much less a capital case. Today, we understand that this confidence was misplaced.”

Justification 1B) Death row families

Family members are persecuted by the community

Rachel C. King (J.D. Northeastern University School of Law, counsel for the Subcommittee on Crime, Terrorism and Homeland Security for the Committee on the Judiciary of the House of Representatives), “No Due Process: How the Death Penalty Violates the Constitutional Rights of the Family Members of Death Row Prisoners,” published by Berkeley Electronic Press’ Legal Series (Paper No. 1584), August 19, 2006 <accessed July 5, 2011> http://law.bepress.com/cgi/viewcontent.cgi?article=7295&context=expresso (JH)

The harm caused by the death penalty is not limited to the judicial process. The stigma and shame associated with a capital punishment case results in ill treatment by the community at large. One woman said that human feces was left at her doorstep, and another’s family pets were killed. Some people experienced harassment at work and others at church. An African American participant in Professor Elizabeth Beck’s study of family members of capital defendants stated that “she only felt safe on her side of the tracks” where she lived with other low-income African Americans. The participant acknowledged that she felt fear when she “had to cross the tracks” particularly to attend her son’s trial.105 She stated, “I was scared too about being his mother. Like doomed. You feel like somebody is going to do something to you[.]””

Family members can experience severe physical symptoms

Rachel C. King (J.D. Northeastern University School of Law, counsel for the Subcommittee on Crime, Terrorism and Homeland Security for the Committee on the Judiciary of the House of Representatives), “No Due Process: How the Death Penalty Violates the Constitutional Rights of the Family Members of Death Row Prisoners,” published by Berkeley Electronic Press’ Legal Series (Paper No. 1584), August 19, 2006 <accessed July 5, 2011> http://law.bepress.com/cgi/viewcontent.cgi?article=7295&context=expresso (JH)

Family members also experienced physical symptoms such as, “the inability to control diabetes and high blood pressure, worsened emphysema, diverticulitis, massive heart attacks, and a rapidly spreading cancer.”188 Darlene Chambers, who witnessed her husband’s execution, “beat the glass and screamed in pain,” then collapsed and required hospitalization for shock and exhaustion.189

Family members suffer severe physical and psychological harm from executions

Rachel C. King (J.D. Northeastern University School of Law, counsel for the Subcommittee on Crime, Terrorism and Homeland Security for the Committee on the Judiciary of the House of Representatives), “No Due Process: How the Death Penalty Violates the Constitutional Rights of the Family Members of Death Row Prisoners,” published by Berkeley Electronic Press’ Legal Series (Paper No. 1584), August 19, 2006 <accessed July 5, 2011> http://law.bepress.com/cgi/viewcontent.cgi?article=7295&context=expresso (JH)

The aftermath of executions often seriously compromises the stability of the entire family. In one family, the mother of the executed man died of heart failure within a year of his execution. The sister developed high blood pressure, migraine headaches and depression. Another sibling drank alcohol all day long. A niece is unemployed because “[a]ll she wants to do is sleep.” Other family members experienced “suicidal thoughts, functional impairment, chronic sadness, inability to feel pleasure, irritability, and physical symptoms.” For some, the functional disability was complete. One mother “did not open her mail or pay a bill for years. She stated, ‘I lost everything . . . . I became a burden on my family.’””

Justification 1C) Incompetent representation

Death penalty is “reserved for those who have the worst lawyer”

Rachel C. King (J.D. Northeastern University School of Law, counsel for the Subcommittee on Crime, Terrorism and Homeland Security for the Committee on the Judiciary of the House of Representatives), “No Due Process: How the Death Penalty Violates the Constitutional Rights of the Family Members of Death Row Prisoners,” published by Berkeley Electronic Press’ Legal Series (Paper No. 1584), August 19, 2006 <accessed July 5, 2011> http://law.bepress.com/cgi/viewcontent.cgi?article=7295&context=expresso (JH)

Under Supreme Court jurisprudence, the death penalty is to be reserved for the worst of the worst offenders; the reality is that the death penalty is reserved for those who have the worst lawyer and who are least able to defend themselves. The common saying, “capital punishment means them [sic] without the capital get the punishment,” is unfortunately true.”

Defendants frequently given terrible legal representation

Rachel C. King (J.D. Northeastern University School of Law, counsel for the Subcommittee on Crime, Terrorism and Homeland Security for the Committee on the Judiciary of the House of Representatives), “No Due Process: How the Death Penalty Violates the Constitutional Rights of the Family Members of Death Row Prisoners,” published by Berkeley Electronic Press’ Legal Series (Paper No. 1584), August 19, 2006 <accessed July 5, 2011> http://law.bepress.com/cgi/viewcontent.cgi?article=7295&context=expresso (JH)

Many death row families were seriously disillusioned with the justice system because of the incompetence of their loved ones’ attorneys. Tragically, many families also used life savings to hire incompetent attorneys, only to learn later that their family member would have fared better with a public defender. Some of their family members were represented by attorneys with drinking problems; some of the attorneys had had problems with ethical violations; some were disbarred after representing their family member, and many had no experience whatsoever in trying capital cases.

Justification 2A) Non-deterrence

More than thirteen studies say that the death penalty is not a deterrent for murder

Rachel C. King (J.D. Northeastern University School of Law, counsel for the Subcommittee on Crime, Terrorism and Homeland Security for the Committee on the Judiciary of the House of Representatives), “No Due Process: How the Death Penalty Violates the Constitutional Rights of the Family Members of Death Row Prisoners,” published by Berkeley Electronic Press’ Legal Series (Paper No. 1584), August 19, 2006 <accessed July 5, 2011> http://law.bepress.com/cgi/viewcontent.cgi?article=7295&context=expresso (JH)

Many scholars are emphatic in their assertion that the death penalty is not a deterrent and, if anything, may actually increase homicides. Scholars Charles Lanier and James Acker claim that the overwhelming body of research shows “no credible evidence that capital punishment is a superior deterrent to murder than is life imprisonment.”336 They cite thirteen studies to support this assertion, as well as a study by scholars Ruth Peterson and William Bailey, who reviewed the mass of studies on the death penalty and deterrence.337 Any studies purporting to show a deterrent effect have been thoroughly discredited in the research community for their “faulty methodologies and failure to stand up under attempted replication.”338 Renowned scholar David Baldus stated, “Although research does not prove conclusively that the death penalty does not deter crime, it provides very strong support for the proposition that if there is any marginal deterrent effect from the death penalty, it is beyond our capacity to measure and document.”339”

Murderers don’t usually consider the costs of their actions

Prof. Tomislav V. Kovandzic (Professor and faculty member in the School of Economic, Political and Policy Sciences University of Texas at Dallas), Prof. Lynne M. Vieraitis (Ph.D. in Criminology, Professor and faculty member in the School of Economic, Political and Policy Sciences University of Texas at Dallas), and Prof. Denise Paquette Boots (Ph.D. in Criminology, Associate Professor of Criminology, University of Texas at Dallas, former juvenile residential counselor for adjudicated youth, and Pre-Doctoral Fellow with the National Consortium on Violence Research), “Does the death penalty save lives? New evidence from state panel data, 1977 to 2006,” American Society of Criminology, published in Criminology and Public Policy (Vol. 8, Issue 4, pp 803-843), November 18, 2009 <accessed July 2, 2011> (JH)

Nagin and Pogarsky (2004) found that property and violent crime may be associated with different approaches to the consideration of future consequences. Property offenders tended to discount or deliberately devalue future consequences, whereas violent offenders tended not to consider future consequences at all. This finding is not surprising in light of the fact that violent offenders, including homicide offenders, are more likely in a state of emotional duress at the time of the crime and are unlikely to be thinking of the costs of their actions. Moreover, many homicide offenses are committed during the commission of another felony (e.g., robbery). If committing a less serious felony is the goal of the offender, then it is unlikely they are simultaneously weighing the possibility of a death sentence for a murder they were not originally planning to commit.”

Studies claiming deterrence are fraught with errors

Prof. Jeffrey Fagan (professor of law and Public Health at Columbia University, Fellow of the American Society of Criminology, and a member of the Committee on Law and Justice of the National Research Council), in a Testimony to the New York State Assembly Standing Committee on Codes, Assembly Standing Committee on Judiciary and Assembly Standing Committee on Correction entitled “DETERRENCE AND THE DEATH PENALTY: A CRITICAL REVIEW OF NEW EVIDENCE,” Columbia Law School, January 21, 2005 <accessed July 2, 2011> http://www.itc.rochester.edu/college/psc/clarke/204/FaganTestimony.pdf (JH)

Recent studies claiming that executions reduce murders have fueled the revival of deterrence as a rationale to expand the use of capital punishment. Such strong claims are not unusual in either the social or natural sciences, but like nearly all claims of strong causal effects from any social or legal intervention, the claims of a “new deterrence” fall apart under close scrutiny. These new studies are fraught with technical and conceptual errors: inappropriate methods of statistical analysis, failures to consider all the relevant factors that drive murder rates, missing data on key variables in key states, the tyranny of a few outlier states and years, and the absence of any direct test of deterrence. These studies fail to reach the demanding standards of social science to make such strong claims, standards such as replication and basic comparisons with other scenarios. Some simple examples and contrasts, including a careful analysis of the experience in New York State compared to others, lead to a rejection of the idea that either death sentences or executions deter murder.”

Justification 2B) Brutalization

People use the death penalty as suicide, driving up the murder rate

Prof. John Lamperti (Professor of Mathematics, Dartmouth College), “Does Capital Punishment Deter Murder?A brief look at the evidence,” Dartmouth College, March, 2010 <accessed July 2, 2011> http://www.math.dartmouth.edu/~lamperti/my%20DP%20paper,%20current%20edit.htm(JH)

If capital punishment really has any effect on homicide rates, that effect must be small. Worse, it might go the wrong way! There are cases where the death penalty has been a cause of homicide rather than a preventive. How could capital punishment be a cause of murder? In a medical paper, Dr. Louis West has described what he calls “attempting suicide by homicide.” In these bizarre cases a person actually kills in order to court death by execution. Here is one of them: Recently an Oklahoma truck driver had parked to have lunch in a Texas roadside cafe. A total stranger–a farmer from nearby–walked through the door and blew him in half with a shotgun. When the police finally disarmed the man and asked why he had done it, he replied, “I was just tired of living.”

Countries without the DP have significantly lower murder rates than the United States

Prof. Arnold H. Loewy (George R. Killam professor of law, Texas Tech School of Law), “THE DEATH PENALTY IN A WORLD WHERE THE INNOCENT ARE SOMETIMES CONVICTED,” published in Texas Tech Law Review (Vol. 41, No. 1, pp 187-198), Fall 2008 <accessed July 6, 2011> (JH)

My reasons for doubting the veracity of the super-deterrent death penalty statistics are twofold. First, they do not appear to comport with reality. Countries other than the United States that do not have capital punishment, such as Australia, Canada, England, and Germany, have significantly lower murder rates than the United States. 33 Furthermore, those states in the United States that do not have capital punishment have, on average, lower murder rates than states that do.34 Finally, comparing neighboring states with similar demographics, but for the presence or absence of capital punishment, shows virtually no differences. 35 For example, comparing Kentucky, New Hampshire, and South Dakota (states with capital punishment) to West Virginia, Vermont, and North Dakota (states without capital punishment), respectively, reveals virtually no distinctions in murder rates.36”

Solvency: Life without parole is better

Life sentences accomplish retribution, deterrence, and incapacitation goals better than the DP

Rachel C. King (J.D. Northeastern University School of Law, counsel for the Subcommittee on Crime, Terrorism and Homeland Security for the Committee on the Judiciary of the House of Representatives), “No Due Process: How the Death Penalty Violates the Constitutional Rights of the Family Members of Death Row Prisoners,” published by Berkeley Electronic Press’ Legal Series (Paper No. 1584), August 19, 2006 <accessed July 5, 2011> http://law.bepress.com/cgi/viewcontent.cgi?article=7295&context=expresso (JH)

In conclusion, the death penalty fails to accomplish any of its stated criminal justice goals [those being retribution, deterrence, and incapacitation]. To the extent that the death penalty does accomplish any of these “compelling state interests,” a life sentence would accomplish them as well as or better than a death sentence. “Strict scrutiny requires that state action limiting the exercise of a fundamental right serve a compelling governmental interest and be the least restrictive means to serve that end.”467 Because life in prison is a less restrictive alternative than the death penalty, states that choose to practice the death penalty have not “narrowly tailored” its infringement on the “fundamental liberty interests” of family members of capital defendants.468”

Advocacy

Prof. Arnold H. Loewy: A balancing of the arguments

Prof. Arnold H. Loewy (George R. Killam professor of law, Texas Tech School of Law), “THE DEATH PENALTY IN A WORLD WHERE THE INNOCENT ARE SOMETIMES CONVICTED,” published in Texas Tech Law Review (Vol. 41, No. 1, pp 187-198), Fall 2008 <accessed July 6, 2011> (JH)

How does the balance for and against capital punishment come out when speaking only of the guilty? Obviously, the answer depends on the weight one accords to each factor. My balance comes out against capital punishment. As I see it, capital punishment, as opposed to a super-max prison, is rarely necessary for restraint. The problem is that we are not good at knowing who needs to be restrained. Similarly, the type of retribution that the law currently allows is so hit or miss that it is almost counterproductive. Finally, the marginal deterrent value of the death penalty, at least as I see it, is so slight (if not negative) that using it to justify the death penalty is difficult.Given that balance, I am forced to conclude that capital punishment is excessive, even as applied to the guilty.”

Prof. Arnold H. Loewy: The possibility of innocent people being sentenced to death is reason enough for the abolition of the death penalty

Prof. Arnold H. Loewy (George R. Killam professor of law, Texas Tech School of Law), “THE DEATH PENALTY IN A WORLD WHERE THE INNOCENT ARE SOMETIMES CONVICTED,” published in Texas Tech Law Review (Vol. 41, No. 1, pp 187-198), Fall 2008 <accessed July 6, 2011> (JH)

In light of my conclusion that capital punishment is excessive when speaking of the guilty, the relevance of probably executing some innocent people in the future takes a sharper focus. While the question may be a close one if we knew we always convict (and sentence to death) only guilty people, we in fact know that is not the case. Because we know that the innocent are sometimes convicted, and because capital punishment, even limited to the guilty, is probably not justified, the answer is clear. At least until we know we do not convict innocent people, the death penalty should be abolished.”

Advertisements

6 Responses to ‘Case of the Week’ 6 (NCFCA): End the Death Penalty

  1. Curious George says:

    Here is my question, can you abolish Capital Punishment on a nationwide level and remain Topical? It’s constitutionally legal, but it seems what you are doing in that instance is federally reforming the U.S. code (effecting primarily the states since the far majority of death row inmates lie within state jurisdiction.)

    • cogdebate says:

      It’s not topical to abolish state penalties directly; this case abolishes federal penalties directly, and uses the Supreme Court (which is still federal) to get the rest.

      Declaring the death penalty unconstitutional is a Federal action, and the Supreme Court is generally considered part of the criminal justice system, so it’s topical. There are some theory arguments you can make against fiating Constitutionality, however; it opens the door to a lot of potential Bad Things.

      – Daniel Gaskell

      • Curious George says:

        Can you fiat the Supreme Court though? The Supreme Court can’t just go about making a decision as they will, a case needs to be brought before them and than they can make their decision (or in this case you can fiat them.) It does seem though that abolishing Capital Punishment is quite viable under the 14th Amendment, which the Supreme Court has used many times in the past.

      • cogdebate says:

        @Curious George: That’s the question. This particular 1AC avoids the “standing case” problem by just saying “At the earliest possible opportunity, the Supreme Court shall…”

        This is entirely legitimate. If the Supreme Court says “we will rule X if an appropriate case comes up,” this would functionally incapacitate the state death penalty – any Death Row prisoner that wanted could sue the state, and have their sentence modified. Most states would probably just abolish the death penalty immediately, to avoid the hassle.

        The bigger issue, IMHO, is the theory one… is it abusive to fiat the Supreme Court?

        – Daniel Gaskell

  2. You could have the Supreme Court reverse the previous decision in which capital punishment was made constitutional. Just an idea.

    • cogdebate says:

      As Curious George notes above, the Supreme Court must have a standing case to make a ruling – they can’t just say, “oh, right, we want to reverse that decision we made three decades ago” without an actual case coming up. (That’s why it says “at the earliest possible opportunity.”)

      – Daniel Gaskell

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: