Some heavy reading on the death penalty.

Judge Richard Kopf has an terrific post (first and third definitions) on his blog, Hercules and the Umpire today. It concerns the death penalty and the execution of people who are "factually," i.e., actually, innocent. I'll do a poor job of summarizing the post in a minute but you should really read the post and then click back to this. I'll wait.


Judge Kopf believes that the death penalty is a matter of policy that should be determined by the people through their elected representatives. Judge Kopf cites to Alexander Bickel for the idea that the judiciary is designed to be the "least dangerous branch of government." As the least dangerous branch, the judiciary should defer to the legislature on matters of public policy. In many states, the legislature has passed (and the public, according to available polling, supports) the death penalty. Since public policy favors the death penalty, the death sentence should be given (or upheld) by judges.

That seems fairly simple. But note this,

Our people are not stupid and they are basically good-hearted–both on the right and the left. Moreover, the huge majority of them believe deeply in electoral democracy. They also know that no legal system can be perfect but in many places they have consistently voted to enact the death penalty, while accepting the many limitations placed on that device by the federal courts. If our citizens, knowing the system is not perfect and thus may likely result in the unintentional killing of the innocent, elect to employ the death penalty, then the “least dangerous branch” (adopting the formulation of Alexander Bickel, one of my favorite modern legal thinkers) has no just reason to do away with the death penalty simply because it does not function perfectly. As Voltaire said, the “perfect is the enemy of good.” If the People want “good” rather than “perfect” most of the time it is the job of the federal trial judge to provide it.

(emphasis mine).  If you read the parts I emphasized, you get "Our people know that no legal system can be perfect but in many places they have consistently voted to enact the death penalty. If our citizens, knowing the system is not perfect and thus may likely result in the unintentional killing of the innocent, elect to employ the death penalty, then the 'least dangerous branch has no just reason to do away with the death penalty simply because it does not function perfectly."

Is this true? I think it is true that most people know that our legal system is not perfect. People might point to the O.J. Simpson or  Trayon Martin cases as situations where the legal system did not operate perfectly.

Have people consistently voted to enact the death penalty? I am not entirely sure what this means. It is certainly true that some states passed death penalty statutes after the United States Supreme Court decision in Furman vs. Georgia. But how many times has each state enacted a death penalty statute since then. If the death penalty was enacted by a state legislature, how many times were those legislators running on a platform of wanting to enact a death penalty? I'm too young to remember when states resumed executions, was there a lot of public debate or did legislators just fix the problems the Supreme Court had identified in Furman? I should note that the death penalty in Oregon has a particularly interesting history as it has been enacted by referendum and repealed by referendum. Also, California voters voted down a referendum to abolish the death penalty in 2012.  What do you think, Mr. Torvik? Is doing something once, doing it "consistently"? Perhaps more places are like Oregon than I realize.

Do the people who vote in favor of the death penalty think that the death penalty "may likely result in the unintentional killing of the innocent"? I highly doubt any voter or legislator thought that innocent people may be killed by the death penalty when they voted in favor of it. They are thinking about punishing the guilty (and deterring others), not on what impact the sentence will have on an innocent person. To the extent, voters or legislators thought about the possibility of an innocent person being sentenced to death, they probably thought that the trial and appeal process will prevent that from happening. I wonder if there is any evidence to support Judge Kopf's conclusion that legislators or voters have actually thought about the possibility of executing the innocent when voting on the death penalty. This strikes me as a big flaw in Judge Kopf's reasoning. What do you think Mr. Torvik?  I should probably note that this is not an abstract issue, some think that actually innocent people have been put to death.

What about the "just reason" for overturning the law? Judge Kopf makes a distinction between what is "unjust" and what is "immoral." Judge Kopf sees "immorality" as being a religious matter. Justice, is a function of a society instituting laws and then making sure those laws are followed (in this case Judges imposing a death penalty pursuant to law). It reads like the Judge is saying that an act could be immoral (imposition of the death penalty on an innocent person) but not unjust. Does this distinction make sense?. It seems to me that religious beliefs are another way that society expresses its view of what is right and wrong. After all, religious beliefs differ among peoples in the same way that laws differ among peoples. Perhaps the larger point is that in a non-theocratic society, judges must act in accordance with the law regardless of their religious beliefs. But if we consider that the point of the law is to punish the guilty, then isn't it unjust to execute the innocent? One might be tempted to point out the point of the law is also to deter others but how can executing the innocent deter anyone? All executing the innocent does is make it seem like punishment is random. Notably, the New York Times has a story on at a prosecutor thinks that freeing the innocent is part of seeking justice.

Judge Kopf writes that if a petitioner was innocent but there was no legal federal remedy to stop the execution, he "would move heaven and earth to stop the execution, but I would not play games with the law to do so." I would like to know more about what that means. Based on the things I discuss below, it does not seem it involves actually ruling on behalf of the petitioner.

Judge Kopf closes his post by providing three examples of places where he would allow an execution to proceed in cases where an innocent person sentenced to death petitioned him for relief from the sentence. These are:

1. If the Supreme Court held that actual innocence was not a reason to stop an execution. This is the right result if one believes the job of a trial judge is to follow precedent. On the other hand, a judge that disagreed with that precedent might figure that if the Supreme Court that set the precedent, then they can overturn an incorrect decision where a trial court judge declined to execute the innocent. After all, one way to get bad law overturned is to keep bringing an issue up on appeal. That's why separate but equal is no longer the law of the land. This hypothetical may come to pass given that, as Justice Scalia has pointed out, the Supreme Court has never held that the Constitution prohibits executing the innocent. Of course, they have not held that the Constitution allows it either.

2. If the innocent petitioner could resort to a fair and speedy pardon process prior to execution. I do not know what the pardon process is like in Nebraska (where Judge Kopf is based) but I am pretty sure that the current federal process is not "speedy." It is hard to imagine this hypothetical becoming reality.

3. If the innocent petitioner "had 'sat on his rights' thus contributing to the absence of a legal remedy to address his factual innocence." This a waiver argument. The innocent person knew of a legal remedy that showed he was innocent but, inexplicably, did not take advantage of this remedy when it was available to him. Why would anyone sit on their rights in such a situation? To me, sitting on a right in that context is evidence that the person did not know the right existed. One hopes the judge would want very strong evidence that the person knew they were foregoing a right. Moreover, one hopes that the Judge would distinguish between what the person knew of their rights and what their attorney should have known about the person's rights. What do you think Mr. Torvik? Should waiver matter in such a situation? One person on Judge Kopf's blog called this hypothetical murder. Is that too strong a term? It certainly seems indifferent to the outcome. I wonder if that indifference is real or just a thought-provoking pose. I tend to think things would break a different way if that hypothetical became a real situation.

One takeaway of all of this is to remind me that I am glad I live in a state that does not have the death penalty. I'm also glad that Judge Kopf gives us some insight about how judges think about the death penalty (or at least how one judge does). Finally, I hope that Judge Kopf is wrong about whether our fellow citizens have decided that executing some number of innocent people is an acceptable price to pay for having a death penalty. I would hate to think that people are that cold-blooded.