The Ever Increasing Problem of Adding Death Penalty Qualifications

One of the attacks on Obama has been that he voted against the death penalty in cases where a gang member kills a child. Of course, the murder of a child under 12 was already death penalty eligible since 1981.

So why pass a new law? To make oneself look tough on crime even if that is utterly irrelevant to any practical consequence. In the bizarre attack on Obama in the debate by Keyes, Keyes wanted to show that we hold such murderers acocuntable with the most serious punishment. And again, the good Ambassador’s unfamiliarity with Illinois law led him to make a case, that made no sense.

I stumbled across the above article by Aaron Chambers (also columnist at the Register Star) which identifies the problems with too many death penalty eligible circumstances.

It’s a policy wonk’s dream of an article

To be eligible for a death sentence in Illinois, a defendant must be convicted of first degree murder and meet at least one of the eligibility, or ?aggravating,? factors. If a judge or jury finds the defendant eligible for death, then a sentencing authority must weigh aggravating factors against any number of so-called ?mitigating? factors, such as when a defendant has no significant history of criminal activity. If there are no sufficient mitigating factors, then the court must sentence the defendant to death.

This framework ? like those in other states ? was designed to comply with the U.S. Supreme Court?s decision in Furman v. Georgia and that decision?s progeny. The 1972 decision in Furman held that capital punishment, as it was administered in Georgia and Texas, constituted cruel and unusual punishment in violation of the Eighth and Fourteenth amendments because it could be arbitrarily applied. That decision effectively invalidated the death penalty. Subsequent decisions have held that a state?s sentencing scheme must narrow the class of people eligible for the death penalty. The statutes also must give judges and juries clear guidelines for determining an appropriate sentence.

Starting with 7 eligibility factors, the state increased that to 21 with the practical effect of all first degree murders being essentially death penalty eligible:

The state?s high court could weigh in on the matter, too. The justices are considering at least two cases in which Death Row inmates argue that having so many eligibility factors has rendered the death penalty statute unconstitutional on its face. Essentially, the defendants maintain that, while each aggravating factor separately may narrow the class of people who are eligible for death, collectively they encompass the circumstances of most conceivable murders, making the statute as a whole unconstitutional. They argue the statute has become so broad that the intent of the law, to limit the cases where death may be imposed, has been negated. ?The situation is now that there are so many exceptions to the rule that they have swamped the rule,? says Charles Hoffman, an assistant appellate defender challenging the law on behalf of Death Row inmate Raul Ceja

In trying to stay within fair use standards, only 9 eligibility factors have been utilized it seems, and two are by far the most used:

And of those 391 instances, prosecutors used committing a murder in the course of a felony 44 percent of the time, and committing two or more murders 36 percent of the time.

The death penalty is allowed under the understanding that it is reserved for clear cases of the most brutal of crimes. By allowing a large number of factors to exist, the death penalty is likely to be used for less than the worst cases some of the time. The Illinois Supreme Court avoided the issue by saying there was no way to address where the line of too many sentences are if one could classify all death penalty cases:

Even assuming one could ever create a tool that would measure the percentage of defendants eligible for capital punishment, where is the dividing line of constitutionality and who makes that decision?”

This isn’t that tough of a question–appoint a special master and code the first degree murder convictions for the last several years and figure out how many are death penalty eligible according to the law. If anything, this would underestimate the number since some cases won’t have enough information in the record.

It’s simply a cop-out to say it can’t be done or no one knows where to draw the line. If the US Supreme Court requires death penalty cases be narrowed, if nothing is potentially narrowed, or very little, that is saying something. How to arrive at a specific test might be hard, but it isn’t that difficult if one has time.

This case was denied by the US Supreme Court, but ultimately, I will virtually guarantee a split between state Supreme Courts that the US Supreme Court will take up (assuming the reasoning is on federal Constitutional grounds).

It’s usually good politics to get tough on crime, but it is also often bad policy. Keyes blunt argument on this goes again to his supposed brilliance. Instead of having a serious discussion, Keyes wants to simply hit Obama over the head. That isn’t brilliance, it’s loudness.