Monday, December 08, 2008

Matching the crime

Wat Tyler, at Burning Our Money, complains that:

There is something seriously wrong with a criminal justice system that fails to protect 17 year old girls from people like Kohli: 22 years is nowhere near a proportionate sentence for what he did, and its deterrent effect is practically zilch.
Tyler describes the crime as follows:
17 year-old Hannah was kidnapped, then brutally raped and murdered, by an animal called Maninder Pal Singh Kohli. As Hannah's Mum later put it, her precious daughter had been left "terrified and alone with an evil stranger. She would have been frozen with fear, unable to run or fight – the proverbial lamb to the slaughter. I feel as though Kohli has ripped out my heart and stamped on it."
What would be a proportionate sentence for this?

The whole idea of proportionality in such cases is meaningless; there are no scales on which the offence can be balanced against a response. Instead, sentencing needs to consider a group of factors: deterrence, which is debatable in such cases (if the man thought he might have been caught he wouldn't have done it, indeed in a confession in India he said he killed the girl because he wanted to make sure he wouldn't be caught); the protection of society, which turns on the idea of rehabilitation as much as incarceration; the feelings of the relatives of the victim. The last could only be fully satisfied by an until-death life sentence.

I'm the same age as one of the Moors murder victims, and until Myra Hindley died the decades were punctuated with pleas from anguished relatives of one or other of the murdered children that Hindley not be released. The possibility of release meant that these relatives could never really move on. The same must be true for many relatives, as well as victims of serious assaults who did survive.

Nothing can be done for the dead. But whole-life sentences would make the lives of those left behind far more bearable.

Of course, the death penalty would have the same effect. I'd lose no sleep if, say, the man who murdered two girls in Soham, where I live, had been killed. But the problems of fallibility and process mean I oppose this punishment.


Anonymous said...

Would you still oppose capital punishment if (big "if" I'll grant you) someone demonstrated to your satisfaction that the number of 'murderers' executed in error was, say, an order of magnitude less than the number of lives saved by the deterrent effect? Or two orders of magnitude, or three....?

Wyrdtimes said...

Hopefully someone will be waiting for this sack of shit when it gets out.

Peter Risdon said...

I'd have no objection to the man being shot by a member of the public, oddly enough. Or maybe it isn't odd. The two objections I raised, of fallibility and process, fall away in that case.

DM, good question. Might post rather than comment. Will decide over supper.

dudleysharp said...

Reconsider the death penalty:

The Death Penalty Provides More Protection for Innocents
Dudley Sharp, Justice Matters, contact info below
Often, the death penalty dialogue gravitates to the subject of innocents at risk of execution. Seldom is a more common problem reviewed. That is, how innocents are more at risk without the death penalty.
To state the blatantly clear, living murderers, in prison, after release or escape, are much more likely to harm and murder, again, than are executed murderers.
Although an obvious truism, it is surprising how often  folks overlook the enhanced incapacitation benefits of the death penalty over incarceration.
No knowledgeable and honest party questions that the death penalty has the most extensive due process protections in US criminal law.
Therefore, actual innocents are more likely to be sentenced to life imprisonment and more likely to die in prison serving under that sentence, that it is that an actual innocent will be executed.
That is. logically, conclusive.
16 recent studies, inclusive of their defenses, find for death penalty deterrence.
A surprise? No.
Life is preferred over death. Death is feared more than life.
Some believe that all studies with contrary findings negate those 16 studies. They don't. Studies which don't find for deterrence don't say no one is deterred, but that they couldn't measure those deterred.
What prospect of a negative outcome doesn't deter some? There isn't one . . . although committed anti death penalty folk may say the death penalty is the only one.
However, the premier anti death penalty scholar accepts it as a given that the death penalty is a deterrent, but does not believe it to be a greater deterrent than a life sentence. Yet, the evidence is compelling and un refuted that death is feared more than life.
Some death penalty opponents argue against death penalty deterrence, stating that it's a harsher penalty to be locked up without any possibility of getting out.
Reality paints a very different picture.
What percentage of capital murderers seek a plea bargain to a death sentence? Zero or close to it. They prefer long term imprisonment.
What percentage of convicted capital murderers argue for execution in the penalty phase of their capital trial? Zero or close to it. They prefer long term imprisonment.
What percentage of death row inmates waive their appeals and speed up the execution process? Nearly zero. They prefer long term imprisonment.
This is not, even remotely, in dispute.
Life is preferred over death. Death is feared more than life.
Furthermore, history tells us that lifers have many ways to get out: Pardon, commutation, escape, clerical error, change in the law, etc.
In choosing to end the death penalty, or in choosing not implement it, some have chosen to spare murderers at the cost of sacrificing more innocent lives.
Furthermore, possibly we have sentenced 25 actually innocent people to death since 1973, or 0.3% of those so sentenced. Those have all been released upon post conviction review. The anti death penalty claims, that the numbers are significantly higher, are a fraud, easily discoverable by fact checking.
The innocents deception of death penalty opponents has been getting exposure for many years. Even the behemoth of anti death penalty newspapers, The New York Times,  has recognized that deception.
To be sure, 30 or 40 categorically innocent people have been released from death row . . . (1) This when death penalty opponents were claiming the release of 119 "innocents" from death row. Death penalty opponents never required actual innocence in order for cases to be added to their "exonerated" or "innocents" list. They simply invented their own definitions for exonerated and innocent and deceptively shoe horned large numbers of inmates into those definitions - something easily discovered with fact checking.
There is no proof of an innocent executed in the US, at least since 1900.
If we accept that the best predictor of future performance is past performance, we can, reasonably, conclude that the DNA cases will be excluded prior to trial, and that for the next 8000 death sentences, that we will experience a 99.8% accuracy rate in actual guilt convictions. This improved accuracy rate does not include the many additional safeguards that have been added to the system, over and above DNA testing.
Of all the government programs in the world, that put innocents at risk, is there one with a safer record and with greater protections than the US death penalty?
Full report -All Innocence Issues: The Death Penalty, upon request.
Full report - The Death Penalty as a Deterrent, upon request
(1) The Death of Innocents: A Reasonable Doubt,
New York Times Book Review, p 29, 1/23/05, Adam Liptak,
national legal correspondent for The NY Times

copyright 2007-2008, Dudley Sharp
Permission for distribution of this document, in whole or in part,  is approved with proper attribution.
Dudley Sharp, Justice Matters
e-mail 713-622-5491,
Houston, Texas
Mr. Sharp has appeared on ABC, BBC, CBS, CNN, C-SPAN, FOX, NBC, NPR, PBS, VOA and many other TV and radio networks, on such programs as Nightline, The News Hour with Jim Lehrer, The O'Reilly Factor, etc., has been quoted in newspapers throughout the world and is a published author.
A former opponent of capital punishment, he has written and granted interviews about, testified on and debated the subject of the death penalty, extensively and internationally.

Anonymous said...

Mr Sharp's comments imply that I could usefully modify my original question to include "the number of lives saved by the deterrent effect plus those saved by the prevention of further murders by convicted murderers". Does anyone gather British figures for homicides proven to be by convicted murderers? If not, why not?

Thomas W. Muther, Jr. said...

The following is in reply to Mr. Sharp's comments, which for better or worse, turned into something of novella length. But I was moved to offer a full counter-argument (replete with end-notes and bibliography) to his ideas, which I see as being full of flaws. Don't know if there is a limitation on length for posts on this site. If so, I will post "in shifts."

Mr. Sharp's comments re: the death penalty (DP), suffer (IMHO) from the same distortion I have seen from many commentators favoring capital punishment--a certain myopia induced by ideological filters impervious to perspectives that lie outside their own. Of course, he may, with some justification, make the same charge of me.  Yet, I feel I understand from whence his ideas hail--the intellectualization of the visceral urge for revenge (emphasis on the intellectualization). That visceral tug.  We all have it.  It would seem to be an intractable part of being human.  And all but the most bestial among us would agree that to unleash these urges unrestrained by social compact upon the world would result in . . . well, paint in your own nightmarish vision here.  It's why we've developed law and moral codes and certain rituals (some ineffectual, like the DP)--to help tame the beast within.  Individually, we develop our own methods of dealing with our internal monsters.  For some, we turn our efforts and vision outward in an effort to transform society--a struggle to actually alter our internal natures by denying the beast any nurturance (more on that later). For a few, usually those who have endured horrific injustice in childhood, it becomes a matter of turning oneself over to its dictates, turning the flames of self-loathing outward in a nihilist fury.  And for others we have the process of turning the innate desire for revenge into an intellectual exercise.
This is what I see in Mr. Sharp's comments here, finding them all too similar in tenor to those of another DP apologist, Ernest van den Haag.  Take as a for instance, his brushing off the issue of innocence and the DP with the claim that we “possibly . . . have sentenced 25 actually innocent people to death since 1973, or 0.3% of those so sentenced"  Ahhhh!  How comforting that 0.3% figure.  But what of the agonies, the horrors that lie beneath that tiny fraction?--that grossly underestimated fraction?  I have had the disturbing privilege of meeting about 10 of these individuals, and have listened to their horrifying experiences.  Meeting them face to face they seemed anything but an irrelevant anomaly so rare as to be unworthy of consideration.  I found them to be quite human--replete with kidneys, lungs, brains, hearts--and more importantly, laughter and tears . . . and unpurgeable nightmares, courtesy of death row, from which most have found no refuge.  I recall Ron Keine, for instance, talking about himself and his three biker friends, sentenced to death for a murder they knew nothing about (their lives weren't considered as important as the reputation of a police officer--but that's a long story), and his helpless vigil during their 2 years on death row as one of these three friends began a terrible spiral into despair and depression, resulting in suicide some time after their exoneration.  Listening to him talk about the last time he saw his friend, Ron's voice cracking as he fought back tears (and this THIRTY years after his exoneration)--somehow, his statistical place in the scheme of things didn't seem to matter.
Nor did it when I listened to Mr. Wilhoite,1 a man who essentially shared Mr. Sharp's views on the death penalty, even after he was wrongly convicted of murder and found himself on death row in Oklahoma.  It wasn't until he was given the news that a fellow inmate he had befriended (who actually was guilty) had just been pronounced dead that his view of the DP abruptly reversed itself.  Tears rolling down his cheeks for his psychotic friend, he suddenly realized that this was no way to treat a fellow human being--even a guilty one--much less one who was innocent.
And then there's the case of Terri Steinberg.  She never spent time on death row, but her anguish is surely no less than those that have.  Her son (Justin Wolfe) resides on Virginia's death row (not a good place to be, even by comparison with notorious Texas ) for a crime he probably did not commit. Proof?  Not absolute, certainly, but they do have a signed confession from the actual killer (doing time for a related charge)--one who had motive and opportunity (though after being threatened with some particularly hard time by those invested in Justin's guilt, he recanted his confession).  The crushing weight she carries on her shoulders every second of every day, all the while trying to care for her other two children, is something difficult to imagine.
I have a lot of stories.  Mostly about people, not so much about statistics--especially statistics like those trumpeted by Mr. Sharp--somehow transformed as if by a funhouse mirror.  Stories about a child growing up with the onus of having had a father accused of murdering his mother and facing the death penalty--though being sentenced to life instead--only later to be exonerated (in the case of Sam Reese Sheppard, son of Dr. Sam Sheppard).  Or Sunny Jacobs and her husband, Jesse Tafero, sentenced to death by the State of Florida.  It turned out the murder of two police officers was committed by another (evidence of this was hidden by the prosecution), but it was too late for Tafero, who was executed in 1990.  Florida neatly managed to avoid admitting a mistake in a deal with Sunny, but the whole affair ended with one innocent dead, Sunny's life and the lives of her two children ravaged.
And on and on.  No statistics.  Just lives brutalized by a system broken beyond fixing.  Needless to say, there are no meaningful statistics regarding the terrible suffering induced by the murders that plague our country and the world.  I know a great many individuals who have had their lives turned inside-out by this violence--but not one iota of their sufferings has ever been relieved by the suffering of innocent death row residents--nor even of those guilty.
Oh! Just in case you haven't guessed, I disagree with virtually every statement Sharp makes in his comments above--the ostensible "obvious truisms," his "logically conclusive" conclusions, the casual dismissal of certain facts, his assertions of the near infallibility of our judicial process and, most assuredly, the philosophical underpinnings of the entire presentation.  His is a view that is mired in the past. Backward, defeatist--a full embrace of despair and hopelessness--his position is an acceptance, an acknowledgement that man is incapable of change, that we have no better recourse than to mirror the violence we abhor.  We are a species doomed to be forever ensnarled by violence beyond its control.  There is nothing to be done about it, we might as well embrace it, ritualize it--use it to obliterate the most problematic amongst us.  Kill the killers.  Return violence for violence.  If we cannot significantly stem the violent tide, we can at least have the satisfaction of repayment in (similar) kind.  And if a few innocents are swept up in the process--well, we're an intractably violent race so what's to be done?

Nothing.  Not from Mr. Sharp's perspective--assuming I have judged it correctly.  But maybe I've got it wrong.  There is another option.  Perhaps his views are not those of a cynical defeatist, but rather a subscription to the idea that if we just kill enough people, keep repeating the failed system of the past long enough, that eventually the killing will stop. The idea of repeating the same behavior over and over and expecting a different result is a way of defining insanity.  His comments seem too well-organized for this possibility (psychology IS my speciality).  But if I have misjudged, and he is a psychotic rather than a despairing defeatist, my apologies, but I will continue to operate under the assumption that he is sane, if wrong.

My philosophy includes the possibility of hope.  Hope that perhaps, just possibly, our violent natures can be altered to some degree.  Not overnight to be sure.  It is to a future beyond my lifetime that I look.  It will take much work and sacrifice.  It will take nothing less than a reformation of the way we conduct our lives, a gradual stripping away of the brutal forces that shape that beast inside ourselves.  It will be a multigenerational process, a slow giving up of the tools of violence--the DP being amongst the easiest changes we can make.  Much harder--the rampant economic injustices that plague the world--harder still, altering the hidden cruelties of childhood that lie at the root of most violence.  I have no illusions about the difficulties of these tasks--but I reject with every fiber of my being the notion that it is hopeless, that man can never significantly reduce his violent impulses.  'But,' he may protest, 'I never said that reducing violence was an impossibility.'  Yet he expects to reduce violence by using it? How many people must we kill to stop the killing?  Martin Luther King, Jr. said, "The ultimate weakness of violence is that it is a descending spiral, begetting the very thing it seeks to destroy."  In a thousand years, perhaps ten thousand, man will look back at King's words and example as part of the long struggle toward a freedom from violence that finally has borne fruit.  Sharp's arguments will be relegated to the dust bin of unprogressive, even destructive ideas that were an impediment to this long hard struggle for peace.
But enough of philosophy.  Mr. Sharp's comments contain a number of errors--errors of fact, and errors of interpretation.  Where to begin?   I suppose the obvious starting point would be to contest his comment I referred to near the beginning of this tome, i.e.: "[W]e have sentenced 25 actually innocent people to death since 1973, or 0.3% of those so sentenced." And he goes on to say, "Those have all been released upon post conviction review. The anti death penalty claims, that the numbers are significantly higher, are a fraud, easily discoverable by fact checking."  First, I must point out that this limitation to a mere "25 actually innocent individuals" is contradicted by his later comment--"To be sure, 30 or 40 categorically innocent people have been released from death row" which left me (and no doubt many others) scratching my (their) head(s).  I suppose that the "categorically innocent" represent a different classification of innocents than the "actually innocent?"  Might we then suppose that there might be 45 or 50 individuals who have been released from death row who were "certainly innocent?"  And perhaps 60 to 75 who were "absolutely innocent?"  Maybe 120 about whose innocence there was little doubt?  In any case, let me be so bold as to suggest that the limitation of the innocents freed from death row to 25 (or 30 or 40) is fraudulent, "easily discoverable by fact checking" (I would have preferred to use the term "incorrect" rather than "fraudulent" as the latter term suggests an intentional distortion [and how can I know what Mr. Sharp's intentions were—though he grants no such consideration to his opponents—referring to their statements as being 'deceptive' as well as a “fraud”], but 2since "fraud' is the term he uses to describe the claims of DP opponents, it seemed apropos).  A fact beyond dispute:  since 1973, 130 persons have been freed from death row with evidence of innocence (or the utter refutation of the prosecution's case) being the primary cause. I can only imagine that his comment that most of these were not "actually innocent" stems from the fact that most of these individuals did not absolutely prove their innocence beyond the merest shadow of doubt—reasonable or not.  Yes, in spite of usually overwhelming evidence that their convictions were based upon lies, misidentifications, prosecutorial misconduct, and etc., it is theoretically possible that some may have committed the crime after all.  Just as it is possible that I might have committed some of these crimes.  Or Mr. Sharp may have.  That there remains virtually no credible evidence to connect these individuals to the crime is insufficient for Mr. Sharp.  I would suppose that only DNA evidence (which is not even available in the vast majority of cases--only 17 of the 130 exonerations involved DNA evidence) or circumstances that would absolutely rule out the remotest possibility that the individual committed the crime will suffice as evidence of innocence (things like, oh, not being born at the time of the crime, or having died before the commission of same).  I encourage people to go ahead and "fact check" these cases for themselves.  You will be shocked at the injustices wrought upon these individuals (you can find a list of the exonerees at ). You will also find at that site the supposed fanciful 'inventions' by which innocence was defined in order to “deceptively [shoehorn] large numbers of inmates” into these fictional constructs. But I will itemize them here so the reader can decide if these definitions for innocence used to compile the exonerated list sound remotely deceptive. To be added to the list, one must have first been sentenced to death, then must have either:

1.had their convictions overturned AND either
a) they were acquitted at retrial or
b) all charges were dropped (and why would the prosecution do this unless each individual was clearly innocent or there was no case against them?) OR
2.They were given an absolute pardon by the governor based on evidence of innocence.

Call me crazy, but these specifications for inclusion on the exonerated list don't sound so fanciful to me, and certainly in no wise do they seem 'deceptive' or a “fraud.” In fact, to call them that seems to be pushing the envelope toward a fraudulent position.

In actuality, the number cited by DP abolitionists for exonerated death row inmates (now standing at 130) is actually LOWER than the true figure.  There are a number of cases where the prosecution, rather than face the humiliation of a retrial in which their misconduct or lack of credible evidence for conviction would be revealed, make a deal with the supposed murderer.  Accept a 2nd degree murder charge, or a manslaughter charge, and be set free.  For many, this is an offer they can't refuse.  Having suffered a grievous injustice at trial before, they are wary of submitting themselves to its ministrations again, and so accept the deal.  These individuals are not included in the 130 figure as their charges weren't dismissed or they weren't found not guilty in a second trial, or given a full pardon because of evidence of innocence.  They remain officially guilty of the crime--their actual innocence notwithstanding.  I am unaware of any tally that has been compiled of such cases (though some are listed on the DP info website noted above), but they are certainly not as rare as hen's teeth and add substantially to the total of innocents freed from death row.  I've mentioned one such case, Sunny Jacobs.  Another that I've spent some time studying involves the case of Lloyd Schlup.  He came within hours of being executed at one point, but finally obtained the services of a good lawyer who found so many holes in the case against him that by the time he was through there was nothing left but a few tattered shreds which no longer held together.  The attorney general of Missouri offered him a deal--essentially plead guilty and have his death sentence vacated--which Schlup grabbed with both hands.  No doubt Mr. Sharp does not include Mr. Schlup in any of his categories of innocence, but no reasonable person familiar with the facts of the case could claim he was guilty (a web-search for "Lloyd Schlup" will provide plenty of hits revealing the vacuous case against him).
So, now, instead of 25 (or 30 or 40), the number of innocents freed from death row has grown beyond the oft-cited 130--to something close to . . . 200? More?  But there was much more afoul Mr. Sharp's statement than just this.  Let's suppose for a moment that his figure of 25 (or 30, or 40) is correct.  To remind, he says that "[W]e have sentenced 25 actually innocent people to death since 1973....Those have all been released upon post conviction review."  The implication is clear--we have sentenced a TOTAL of only 25 innocents to death, and EVERY one of these has been released from death row.  Is this remotely credible?  Not only is our system of justice regarding sentencing virtually infallible (according to Mr. Sharp), but our system of post-conviction review is so exquisitely perfect that every rare case of injustice is unerringly ferreted out and made right.  This "conviction" defies common sense, an understanding of human nature/fallibilities, and certain facts about that system of post-conviction review.  With the more accurate figure of 130+ innocents released from a death row population that now numbers around 3500--from a common sense perspective one would assume that there are at least a few individuals on the row whose actual innocence remains to be proven.  Every year since 1973 (save two) at least one person has been freed from the row owing, at least in great measure, to evidence of innocence, with an average of 3.7 such exonerations per year (this number excludes that category of wrongly convicted individuals who accepted plea agreements mentioned before).  These individuals spent an average of approximately 9.5 years with a sentence of death looming over their heads before their guilt was disproved.  Yet we are asked to believe that there are no more such cases in prison? that they have been entirely emptied of the guiltless?  There are individuals on death row as I write this whose attorneys are building credible cases for their client's innocence.  Mr. Sharp offers nothing to make me or any other rational human being believe that the trickle of freed innocents has come to an abrupt end.  By what magic?  Surely, with that historical average of 9.5 years on the row before their guilt was shown to be a mirage, some unknown number of human beings, having yet spent "only" 2, 4, 7, or 15 years there, will someday join the ranks of the exonerated.

And about that nearly perfect post-conviction review.  Mr. Sharp sounds like an intelligent fellow, familiar with many of the facts regarding the DP (even if his interpretations of those facts are more than a trifle off).  As such, he must be aware that the courts have thrown up numerous procedural barricades to the introduction of new claims of innocence.  The courts, annoyed by the volume of problematic death penalty cases that have taken up a disproportionate share of their attention, have over and over again, raised the standard of proof required before an appeals court can seriously consider such evidence.  Essentially, one must present evidence of innocence that is so overwhelmingly convincing that, as stated in Sawyer v. Whitley (1992), "no reasonable juror would have found the petitioner [guilty]”--an prodigious hurdle for any petitioner to clear (think about it, strong new evidence that might very well have caused the jury to come to a different conclusion isn't good enough) In Herrera v. Collins (1993), the Supreme Court essentially reaffirmed this finding, allowing the execution of a man who had uncovered evidence (though to be sure short of absolutely exculpatory) that it was actually his brother who committed the crimes in question.  The Court, evidencing their remove from the real world of politics as it affects such things, suggested that since his original trial had been constitutionally fair, that the proper place for this new evidence to be heard was in a commutations hearing, or before the governor.  But because of political pressures, it is rare that a pardons board or the governor will overturn a death sentence—this being especially true for Texas where Herrera was tried (and true to form, his claims were not seriously entertained and his execution went forward).  The court tweaked its ruling slightly in the aforementioned Schlup v. Delo (1995) (a torturously reasoned decision that attempted to maintain the formidable barriers they had constructed against consideration of new evidence of innocence, while at the same time rationalizing why Schlup SHOULD be granted an evidentiary hearing), but the bar remains almost impossibly high against the introduction of new exculpatory evidence.  “Innocence” by itself is not considered a constitutional impediment to execution.  Check out,;jsessionid=JQbTpPshLFGTGd2CmLbLqVxnxsYX1Lxwv2trtqGsTXgyTGPnGW0Q!-958402563?docId=5000409498 for instance, where in the “Journal of Criminal Law and Criminology” it's argued that in Schlup, “[T]he [Supreme] Court should have answered the question of whether the execution of an innocent person is unconstitutional.3 The clear implication of the Court's silence on this issue is that the Constitution provides no such protection." Thus it appears that mere evidence of innocence does not entitle an actually innocent prisoner to habeas review.

There are many other impediments to a proper and thorough review of post-conviction cases.  In several locales, there are laws prohibiting the introduction of new evidence after a certain time period.  There often are no guarantees of representation in appeals (i.e., the petitioner has to put up the money for an attorney himself [most have few monetary resources]—or be lucky enough to find someone who will work pro bono).  Not to mention that the quality of representation varies wildly--the Schlup case being a perfect example.  His attorneys bungled his case through the original trial and appeals, until finally he was fortunate enough to obtain the services of a talented and experienced attorney who made maggot-infested minced meat of the State’s case.
But though the post trial difficulties of a convicted individual proving his actual innocence are formidable, and a discussion of these problems could fill (and has filled) volumes, let’s now turn our attention to our wondrously perfect death penalty system as it regards the original trial.  Mr. Sharp states: “No knowledgeable and honest party questions that the death penalty has the most extensive due process protections in US criminal law.”  Hmm.  I wonder in which area Mr. Sharp would consider me deficient?  My honesty or my knowledge base?  Because I DO question the near infallibility of the protections afforded an individual accused of a capital crime I must, of necessity, be lacking in one or the other—possibly both.  That is, unless Mr. Sharp is incorrect and the “extensive due process protections” are merely gilded with the appearance of same.  I do not doubt that many law-makers, over the course of many decades, have certainly attempted to enhance these protections for capital defendants.  Alas, these efforts have frustratingly proved to have fallen short.  Over and over, across time and geography, the attempts to craft laws that give extra protections to those accused of death penalty eligible crimes have failed to deliver.  To fully explore the problems with DP law is far beyond the scope of even this lengthy essay.  Whole books have been penned covering this aspect of the DP as well (from the list of recommendations far below, the books by Drehle, Black, and Prejean are noteworthy).  The task of summarizing the problems even briefly seems a daunting challenge, but just jumping in: one problem—in this effort to “perfect” the DP trial (an effort predicated on an acknowledgement that “death is qualitatively different” than other forms of punishment) it has become a behemoth of complexity.  Most again attorneys are ill-equipped to muster a proper defense simply because of a lack of knowledge and experience.  Thus, the number of quality, death penalty experienced lawyers is insufficient to provide adequate counsel to every individual facing a death sentence, and so many who are tried are not given adequate representation.  Some specific examples of this have become legendary—with attorneys who have dozed through much of the trial, or been high on drugs, or were simply too far outside their area of expertise and failed to raise objections to problematic prosecutorial conduct/theories/questions/etc. [And if an objection is not raised at the original trial, the appeals courts will rarely consider such objections. "Too late!" they will cry, and dismiss these claims without at glance.]   In the case Strickland v. Washington (1984), the Supreme Court attempted to set a standard for minimal competence required in these cases, but the ensuing 25 years have demonstrated these standards to be woefully insufficient, and incompetent or inexperienced defense attorneys still all too common (especially in the South) in capital trials (see: , pages 1069 through 1072 for a brief summary of these problems).  Another related problem is that many states simply do not allow for sufficient remuneration for the defense of indigent defendants.  Thus, they are hard-pressed to hire the necessary expert witnesses that very likely will be required to cast doubt upon the prosecution’s case.  Not to mention that many lawyers will be loath to put in the hundreds of hours necessary to muster a proper defense when they are essentially being paid pennies an hour.  So, the ideal of “equal justice under the law” is a sham, especially in death penalty cases.  Why is it that rich murderers are a rarer find than innocents on death row (aside from the fact that there are obviously fewer rich individuals who commit murder--the rich making up a small minority of the population for one thing)?  They are able to hire the best legal talent available—cost be damned.  Suddenly, the shoe is on the other foot, and it is the defense who may be able to outspend the prosecution on investigation and expert testimony.  In such a case, the prosecution will very likely not even pursue death as penalty when they see the array of experienced attorneys lined up against them.  Of course, this particular problem exists for all levels of crime, but because of the complexity of a capital case, the disparity between the representation afforded a rich individual and someone poor is exaggerated further.  And if we agree that “death is different,” than this disparity is all the more tragic in these cases.

There are many other problems that make the DP system even more unfair (i.e., give the defendant less protection than in a lesser case).  “No knowledgeable and honest party questions that the death penalty” is vastly more expensive than the option of a trial where life or some other lengthy prison term is the penalty sought from the beginning (actually, Mr. Sharp DOES so question this fact elsewhere, but there have been numerous studies that show this to be so [most recently studies by California, Maryland, and New Jersey have all found the DP to be hugely expensive, see for links to information about these studies]--but in any case, he acknowledges that the upfront costs are much higher, and this is the problem I address here).  Because of this, where one allegedly committed the crime becomes all important.  In many areas, DP trials are virtually (or actually) nonexistent, simply because that jurisdiction lacks the resources necessary to pursue such a trial, while in other areas, the capital trial is relatively routine.  Thus, geography will be for some the most important factor in determining whether he will face the possibility of execution.  But there is another way in which geography plays an indirect role in deciding who is deemed worthy of a death sentence and who is not, and that would be the philosophy of the district attorney.  It is he, or she, who usually makes the decision alone, and so if the district in question is headed by a rabid believer in capital punishment (or one looking for advancement to the AG's office, or perhaps the governor's seat) that individual will clearly seek the DP more often than a DA who has some ambivalence about the penalty. This is fairness? Criminal A is subject to the DP while criminal B is not—even though “B's”crime may be more heinous—because of their respective zip codes??

But perhaps the most important factor that corrodes the ostensible protections of the DP system is the high-profile nature of these trials.  Pressure.  Media Frenzy.  High-stakes drama.  Grieving survivors.  A man fighting for his very life.  A chance for advancement for the prosecutor.  And standing in the way of that advancement?--that pesky rule that all evidence, especially exculpatory evidence, must be turned over to the defense.  But what if the prosecution has become so mesmerized, so certain of the accused's guilt that he/she may block out that possibility that some little item found at the scene of the crime might represent such exculpatory evidence?  He just doesn't see it.  Or perhaps, he does, but since the guy's guilty anyway, what difference does it make if that piece of evidence gets shunted aside and forgotten as hiding it only serves to streamline things in the service of justice . . . and the bas*ard gets what's comin' to him.  It becomes all about the conviction.  The prosecutor (and I'm not implying this is true of all or even most prosecutors, but a look at the list of reasons innocent people get sentenced to death will reveal prosecutorial impropriety to be one of the foremost causes) may convince himself that he is following his ethical guideline to seek justice no matter where it leads, but once convinced of a suspect's guilt, too often the facts will be made to fit this conviction.  Suddenly, it all seems so clear.  This square peg really does fit into this round hole.  And if the defendant is cursed with an inexperienced, unobservant attorney, the jury will be made to see that these things fit just as the prosecution says they do (alas, most juries are not comprised of individuals like those in Sidney Lumet's film 12 Angry Men who can see all the problems in the prosecution's case without benefit of a skilled defense attorney's help).  One of my "favorite" examples of this concerns the case of Dobie Gillis Williams, a mildly retarded man who was highlighted in Sr. Helen Prejean's book, "The Death of Innocents" (the following information comes from the first section of that book).  In my opinion, her review of the case did not absolutely rule out the possibility of Williams being guilty, but what it did reveal was the absolute impossibility, the utter outlandishness of the prosecution's case.  He was thus convicted on misleading, absurd, and absolutely impossible evidence.  Perhaps he did it.  But he could not have done it the way the prosecution said he did.  And since there was almost nothing credible about any of their hypotheses, anyone picked at random who had been in that community that night would just as likely have been guilty (though there was one State's witness whose answers at trial clearly revealed him to be a prime suspect).  In summary, for those unfamiliar with the case, according to the prosecution,  Mr. Williams decided to rob the Knippers' home (the reason he allegedly chose their house was never revealed according to my recollection).  He then stripped naked, and crawled through the bathroom window (I've been burglarized many times and no doubt in every instance the burglar stripped before entering--just standard operating procedure, no?).  Once inside, he decided to murder Mrs. Knippers.  Why?  Don't ask such silly questions.  So, having arrived without a proper murder weapon (according to the prosecution), he walks out of the bathroom--naked--walking right past Mrs. Knippers who was asleep on the sofa, goes into the kitchen to get a knife (at least, if one is to believe the testimony of Mr. Knippers who said he was "certain" he had left the supposed murder weapon in the kitchen after making some gumbo), and then walks back to kill Mrs. Knippers.  Oops!  No, that would make a little too much sense in this cock-eyed story.  No, Mr. Williams goes back to the bathroom and waits for Mrs. Knippers to come in.  That he might have waited 5 minutes or 5 hours was apparently a matter of indifference to him, but wait he apparently did.  (The prosecution, through innuendo, put into the jury's mind the possibility that the knife had been in the bathroom all along, but this directly contradicted their star witness' testimony and they offered no evidence to support this idea.)  Finally, she comes in, and he sets upon her with the knife, stabbing her numerous times.  Mrs. Knippers then screams (according to the testimony of her husband [I'm doing this all from memory so I may get the exact wording slightly off, but it is essentially accurate]), “A black man is killing me!"  Mr. Knippers runs to the scene and tries to break into the bathroom without immediate success.  He finally breaks in the door after Dobie has fled the scene, to cradle the Mrs. in his arms as she breathes her last, saying [approximately], "That black man went out the window."  The next day the investigators found the purported murder weapon outside in a vacant lot adjacent to the Knippers abode.  That it was completely free from the tiniest drop of blood was the result, according to the prosecution, of the morning dew having washed it off.  What was Dobie's motive?  That was apparently an unimportant question, because it was never coherently explained.  So, we have no motive (unless a plan to burglarize, with an abrupt change of mind for unstated reasons to murder can be characterized as a motive).  Was there opportunity?  Dobie was in town, and his alibi wasn't the best so it is conceivable he might have done it.  (But why? why? why?--not important, never mind.)  Could he have killed Mrs. Knippers in the manner described by prosecution?  Not a chance.  A forensic expert hired post-conviction discovered that the window into the bathroom was actually too small for Mr. Williams to have crawled through.  Not convincing enough?  Okay, let's imagine that Dobie was extraordinarily flexible, and he WAS able to squeeze into and out of that window.  Strangely, however, in spite of the melee that ensued in that bathroom, with blood everywhere, there was one place in the bathroom where there was no blood:  Inside the window frame.  You have a naked man who repeatedly stabbed the victim and was still doing so when the women's husband arrived on scene.  How is it possible that Dobie would have failed to get any blood on his torso? his legs? his shoulders?  If there had been any on these areas, there would have been blood smears on the sill and the inside of the window frame.  There were none. Even more importantly, how would he have avoided getting any blood on his hands?  Imagine the action of someone violently stabbing a living human being with blood coursing through his/her veins.  After many such thrusts, is it possible that his hand would have been free of blood?  Yet, according to the prosecution, apparently this was the case as there were no bloody palm prints on the window.  No bloody fingerprints.  In fact, as the Brits would say, there were no bloody fingerprints in the bathroom at all that belonged to Mr. Williams--with or without the blood (now, there was a glove found outside which was offered as a possible explanation for this absence, but there was no blood on the glove either).  Nor were there any on the supposed murder weapon.  So explain to me how a bloody Dobie squeezed through a too small window without touching it.  Did he shower before leaving while Mr. Knippers was trying to bash down the door?  Strangely, the prosecution did not make this ludicrous argument.  And what about that murder weapon?  Blood, especially blood that's been sitting around a bit, is not that easily cleaned off, but supposedly the dew did the job, even from the junction of handle and blade. (Hmm. I wonder why the prosecutor's didn't offer up the dew as a reason for the absence of blood on the glove? Perhaps because they realized that some of the jurors undoubtedly had experience trying to get out blood stains from a fabric?)  Strange.  I've been driving a car for years.  I'm one of those who seldom washes it.  I keep hoping that the dew will do the job, but even on the wettest dewiest mornings, the dew only manages to rearrange the dust a bit, giving it a few streaks, actually making it look worse than it did before. Heck, even after a full-fledged summer-downpour my car still looks dirty.  Face it.  There is absolutely no way dew could have washed away all the blood.  And in some alternate universe where it was possible, there would have been some residue of said blood on the ground around the knife.  Any reported by the investigators?  No.  There also was no blood from Mrs. Knippers on Dobie's clothes.  Yes, he supposedly took them off before entering the house, but when he gathered them up as he scrambled away, he certainly would have transferred SOME of her blood to them, no?  And why were there no footprints under the window that matched Dobie's?  And then we have the matter of what Mrs. Knippers supposedly said as she was being viciously stabbed:  “A black man is killing me!"  In the whole history of the world, I doubt that anyone who has ever been attacked as she was uttered such a static, cardboard sentence as that reported by her husband.  Bloodcurdling shrieks, yes. Screams, yes.  "Help!" yes.  Cursing, and/or pleas to God for mercy, yes.  But "A black man is killing me?"  No.  This claim is only slightly less fanciful than if Mr. Knippers had said she'd cried out, "Don't forget to buy some milk for the breakfast table, 'cause I'll be dead and won't be able."  There was other evidence, but none of it added up the way the prosecution said it did, including the supposed presence of Williams' blood on the bathroom curtain.  There were all manner of problems with the interpretation of this blood, but eventually, just before Dobie's execution, the defense team finally persuaded the prosecution to allow DNA testing.  Unfortunately, the prosecutor chose the lab to do the testing and did not allow the defense the opportunity to run their own tests or have an independent expert observe the testing.  Though the lab found the blood to be a match with Dobie's, an independent lab later concluded that the techniques employed were so shoddy that no such conclusion could be reached (not to mention that some of their findings did not fit with their conclusion, but these inconsistencies were ignored).  Finally, there was Dobie's supposed confession, the tape of which mysteriously disappeared (it's extraordinary how much evidence in this case went the way of the missing audio tape--from a supposed piece of darkly pigmented skin found on the window's edge, to a video tape of a police officer supposedly exiting through the bathroom window in 7 seconds to demonstrate that it could be done), but the account of it from the officers present shows that he changed his story numerous times whenever it was pointed out that his version of events did not match the facts.  This is consistent with behavior noted in the mentally retarded (Mr. Williams' intellect had been determined in one test to lie within the range of mild retardation, while in another, it was just above this range)--who generally make every effort to please their questioners.  In fact, in order to obtain reliable information from a suspect with mental retardation, an expert in the handling of such questioning is required. Needless to say, no such expert was on-site during the questioning. The prosecution's case was rubbish from top to bottom.  The most likely suspect was not even investigated (and we all know who that was, but with the mention of the culprit being a black man, this pretty much meant that in this Louisiana town, a black man would be the only suspect).  I wish I could say that this is the single example of an inept defense coupled with a problematic prosecution that led to a probably innocent man being executed, but unfortunately . . . .

This leads us to the rather inaccurate statement by Mr. Sharp, that "[t]here is no proof of an innocent executed in the US , at least since 1900."  I say inaccurate, but it revolves around the interpretation of what constitutes "proof."  Clearly, Mr. Sharp sets the bar extraordinarily high. Perhaps when we finally turn H. G. Wells' idea of a time machine into reality, and combine it with Harry Potter's invisibility cloak (we wouldn't want to change history, of course, so the cloak would be necessary to observe the crime without affecting it)--THEN we would finally be able to 'prove' the innocence of some of the executed.  We certainly do not have this level of proof today, and if this is what Mr. Sharp requires, than his statement is accurate.  But it is absolutely true that dozens of individuals have gone to their deaths at the hands of the State who had serious, unresolved questions about their guilt.  We’ve just looked at the Williams case.  By the Wells/Potter/Sharp standard of proof, we cannot say with certainty that he was innocent, but what we can say is that they came little closer to proving his guilt in the case than they did Mr. Sharp’s.  Now, when you combine this with the fact of those other dozens whose prosecutions were as suspect (or nearly so) as was Dobie Williams', you have a situation where it becomes patently absurd to suggest no innocent individual has been executed. To pick a few more of these cases and examine them in detail would be beyond the scope of this essay, and again, there have been whole books written about individuals executed in spite of problems with their cases on a par with those I've pointed out in the Dobie Williams affair.  Just in passing, however, I'll once again mention Jesse Tafero, executed in Florida in 1990.  His wife was set free after exculpatory evidence, hidden by the prosecution, came to light.  The same evidence used against her was used to convict her husband.  That evidence was eventually revealed to have been chimerical--the scenario describing how the murders of two police officers occurred was an artificial construct developed in consort between the prosecution and investigating officers, and the "cooperating" witness (the real murderer) endeavoring to save his own skin.  It was no longer enough to keep Sunny behind bars, and it wouldn't have been enough to keep Tafero there, yet the State of Florida continues to maintain they have never executed an innocent man, nor that they have any problems with their DP system (even though Florida has had more innocents freed from its death row than any other state).

In my opinion, no knowledgeable and honest party could reasonably assert that the death penalty has never sent an innocent man to his death—not since 1900, nor even 1976, for that matter.  "That is logically conclusive."  As US District Judge Michael Posner wrote:

A legal regime relying on the death penalty will inevitably execute innocent people - not too often, one hopes[!], but undoubtedly sometimes.  Mistakes will be made because it is simply not possible to do something this difficult perfectly, all the time.  Any honest proponent of capital punishment must face this fact4 [emphasis mine].

Apparently, Mr. Sharp has not yet achieved this level of internal honesty. He writes:

If we accept that the best predictor of future performance is past performance, we can, reasonably, conclude that . . . for the next 8000 death sentences, that we will experience a 99.8% accuracy rate in actual guilt convictions. This improved accuracy rate does not include the many additional safeguards that have been added to the system . . . .”

And what safeguards are these? The “Antiterrorism and Effective Death Penalty Act” for instance?--legislation that greatly limited the convicted party's appeals? Recall that those who have demonstrated their innocence and been freed from death row, did so after an average of 9.5 years and numerous appeals. So, limiting the appeals and thereby reducing their stay on the row is somehow an enhancement of the safeguards against executing the innocent? Other than the reduction in the categories of crimes/criminals eligible for the DP (e.g., the Supreme Court has ruled that cases not involving murder [or treason] are not subject to the DP, and that some murderers are not subject to this penalty owing to their reduced capacity for understanding their crime, such as the mentally retarded), I am unaware of any such enhancements—not counting various window-dressings (like Strickland mentioned before) which have proven to be woefully inadequate.5 But let's assume for a moment that Mr. Sharp's absurd figure of 99.8% is accurate. What he is arguing for is essentially a lottery system by which a few unlucky souls will be sacrificed to the god of vengeance to deter the tide of violence by its purported but unprovable remedial properties. Of course, it's only 0.2%--a figure too small to be of any significance. I'm quite certain the lucky few who are chosen to be so sacrificed would consider themselves a statistical anomaly unworthy of note, or perhaps privileged to be so sacrificed.6 No doubt, if one of Mr. Sharp's loved ones were so chosen, he would feel this privilege. 
In truth, he needn't fear. Statistics are in his favor. But for SOMEone's loved one, the implacable hand of a capricious penalty will strike them down. This is the reality. To maintain a death penalty, an honest person facing these realities must acknowledge that they will be sentencing innocents to death. And since, according to Sharp, “past performance” is “the best predictor of future performance” we can be certain that the number will be far greater than that 0.2% figure (since the DP was declared unconstitutional ever so briefly in 1972, there have been around 7,900 death sentences handed down, and even just using the figure for the officially exonerated (130) and ignoring those innocents who plead to a lesser charge in order to be freed, and those whose innocence has yet to be proven—we see we are approaching a 2% figure, almost 10 times the figure Mr. Sharp suggests [add the other categories of innocents mentioned and this figure would increase to some unknown quantity, perhaps 3%--perhaps 4%--perhaps more]). Whatever the figure, should we be investing in a system that we know will torture and kill innocent human beings? Would you buy a car that you knew had a 2% chance (or even 0.2% for that matter) of exploding into a great fire-ball? Of course not. Such a purchase would defy logic and the self-protective instinct. Yet Mr. Sharp would have us continue to buy into a system of justice that has the same catastrophic failure rate.

But speaking of logic, some of Mr. Sharp's other claims do not meet my standards of what can be deemed "logically conclusive."
Concerning his comment that "committed anti death penalty folk may say the death penalty is the only" punishment that "doesn't deter some"--perhaps some may, though I have yet to meet such a one.  I don't believe that any sane individual with the capacity for logical thought would ever make such a claim.  It's nonsense.  The real crux of the issue boils down to what lies in his next paragraph where he says that the "premier death penalty scholar" acknowledges that it deters, but argues that there is no evidence to suggest that it deters any better than life in prison.  He dismisses this idea by stating over and over that “death is feared more than life [in prison]” and offers various supposed proofs of this statement.  While it is certainly true that death is feared more than a life sentence, his position that this is de facto evidence that the DP is a more effective deterrent does not logically follow.  There is a certain threshold of punishment beyond which further augmentations of severity will fail to deter any more effectively than the lesser, though still severe punishment.  To take a hypothetical example:  Let's say that they outlawed basketball tomorrow.  I love basketball and such legislation would do nothing to deter my appreciation of the game.  If the punishment for playing were, say, a fine of $25, I would certainly continue to play, though my participation might be a bit more surreptitious (unless I determined that civil disobedience was the proper course).  If the fine were $100, I still would probably play, but would be more circumspect about where, when, and with whom I played.  If the fine were raised to $1,000, I would then have serious reservations about playing and very likely would give it up.  Certainly if the punishment's maximum penalty were increased to 6 months in prison, you would never again see me near a basketball.  And if the penalty became life in prison? or death?  Would I be more deterred?  How can one be more deterred than completely deterred?  Now, I will be the first to admit that murder is an entirely different kettle of fish than the "crime" of basketball.  Yet these very differences also cast doubt upon the supposed increased deterrence of a DP over a life term.  Most obviously, with no law to prohibit the playing of basketball, we see it played by hundreds of thousands of individuals.  If murder suddenly became legal, would we see hundreds of thousands of individuals suddenly going about murdering people?  Certainly there would be an increase, but for the vast majority, it is not the threat of punishment that ultimately deters us from committing murder, but the moral values that were instilled within each of us.  So, for this vast majority, no matter how severe or limited the penalty, we would be no more or less moved to commit the crime.  But what of those relative few who are more predisposed to murder?  I would argue that the difference in severity between death and a life sentence would extraordinarily rarely, if ever, make a difference (insofar as deterrence is concerned).  Supposedly, the DP will make the would-be killer think twice before committing the crime, but as Sister Helen Prejean is fond of pointing out, "The people who are doing the thinking, and the people who are doing the killing are not the same people."  When one examines the motivations of a murderer, it becomes apparent why  the supposed enhanced deterrence of the DP is a mirage.  Why are murders committed?  To simplify, it comes down to three reasons:  greed, passion, or insanity.  I would argue that anyone sufficiently in the grips of any of these motivations would hardly be in a position to parse the differences in severity of possible punishments.  In spite of Sharp's oft-repeated mantra that death is feared more than life, EITHER punishment is extraordinarily severe--so severe that if one had been pushed, or had of his own accord stepped up to the brink of committing murder, assuming the thought of penalties retained any deterrent effect whatsoever it's hard to imagine anyone thinking to themselves, "Well, since death isn't an option in this jurisdiction, and all I have to face is the possibility of life in prison--merely life in prison--I'm going to go ahead and kill."  Nor is the reverse likely, i.e., that "Since I face the possibility of death--instead of that laughably benign penalty, life in prison--I'm not going to strangle the person standing before me."  It is very much like the example I provided about the outlawing of basketball.  Once prison time for playing became an option, it wouldn't matter how severe the penalty became beyond this, my days as a player would be over.  Likewise, either of the two penalties facing an individual contemplating murder—life in prison or death--are so severe that it is very hard to imagine someone who retains the capacity to be deterred, who wouldn't be deterred by either penalty.  To cite another example, which would YOU chose, to immerse your hand in boiling water or boiling oil?  The answer is neither, of course.

In any case, it's obvious that deterrence is not even a factor in all too many instances.  A person who was brutalized by violence as a child, and is overcome by rage toward an unfaithful wife (or husband), may be beyond the reach of the restraining influence of some theoretical punishment (and certainly beyond weighing the possibilities between life in prison or the DP).  A hired killer does not believe he will be caught, so what difference does it make what form of punishment looms if he doesn't believe it looms at all?  A young man whose mind  is so ravaged by an abusive upbringing and chemical imbalances in his brain that he is unable to apprehend that the "demon" that has come to dismember him is really only a human being that means him no harm, will strike out without nagging thoughts of prison or a DP.  They don't subject people to the DP for killing demons anyway, do they? (Yes, they do.)

I could go on and on with metaphors and examples real and imagined to demonstrate why a DP is no more effective at stopping murder than the threat of a life term.  Certainly every person, save the innocents, sitting on death row (or who are in the general population because they they were lucky enough to have a good attorney and avoided the penalty) is testament to the fact that at least for these, it was no deterrent at all.  And it would seem that if capital punishment were a bigger deterrent than the alternatives, we would hear a lot more about individuals who transported their victims into non-DP jurisdictions in order to carry out their murders.  But how often has this occurred?  Rarely.  Perhaps as rarely as people who carry out their killings BECAUSE of the DP (i.e., as an indirect means of suicide), something that has been documented. 

Step beyond the simplistic "death is feared more than life and therefore offers a greater inhibition to murder" and really examine the merits of such a position, and the flimsy rationales used to support this thesis crumble and fall away (it's no wonder that most studies do not find a measurable deterrent effect).  And if one truly embraced the notion of "the greater the penalty the greater the deterrent," why stop with mere death?  Why not enhance the prohibitive effects of a death sentence by including torture into the mix?  Perhaps if the murderer were tortured--for weeks, months, perhaps years--brought to the brink of death many times only to be pulled back at the last moment before finally submitting him to the most gruesome death imaginable (say, crucifixion; or the exquisitely slow immersion into burning oil; drawing and quartering; or the flaying of the skin by a virtuoso of the blade over days), then murder would become a thing of the past.  And certainly, if deterrence is the only thing worthy of consideration, these punishments should be made public--broadcast live and in full color with expert commentary to explain every gruesome detail ("He's removing the skin of the back first as there are fewer nerve endings there--this so that the more painful areas, such as the lips and genitalia, can be saved for later to increase the monster's agonies gradually.")

Some DP proponents would consider this an excellent idea, but your "premier" DP apologists will not advance such notions, recognizing that such displays would have a brutalizing effect on society.  This is one thing missing from Mr. Sharp's comments.  He only acknowledges two possibilities for the DP (one of which he too readily dismisses), i.e., that it inhibits murder more effectively than life in prison, or (pshaw!) that it does not.  But what of that brutalizing effect?  Most proponents of the DP acknowledge that public executions might very well coarsen society to violence.  But isn't it just possible that executions conducted behind prison walls might have that effect?  After all, they are absolutely certain that the deterrent effects somehow find their way through those walls, why not the brutalizing effects as well?  Just what substance makes up the composition of these walls that they so easily allow the purported "positive" consequences of executions to seep through but so effectively contain the potential coarsening effects?  Or perhaps advocates for death (just a theory, not an accusation) are generally lacking in the imagination necessary to see in their mind's eye the dehumanization that occurs in the death chamber: the transformation of a human being into a beast for slaughter.  Without the requisite imagination, the notion that such a procedure, held out of view, could possibly coarsen society must seem preposterous. I, however, have seen first hand evidence of this coarsening—in the bacchanalian fetes that take place outside some prisons as a human being is put to death inside, or in the shrug of the shoulders and blank looks that accompany statements such as “No, I didn't know there was an execution today” that takes place outside others.

If we wish to reach for a day when the killing of any human being will be unthinkable, the DP is clearly not a tool that will facilitate that reach. Ahh. But I've veered off into philosophy again.

And what of those 16 studies that show an exemplary effect for capital punishment? Mr. Sharp is well aware that these studies have been roundly criticized for problems in their methodology and interpretations. And of those many studies that show no deterrence? Mr. Sharp dismisses them with a verbal shrug. After all, he writes, the “[s]tudies which don't find for deterrence don't say no one is deterred, but that they couldn't measure those deterred.” True. Just like the futile search for WMDs in Iraq didn't prove there were no WMDs, but only that they couldn't be found. Can one imagine an oncologist saying, “The tests we've run have failed to show you have any cancer. Nonetheless, we've decided that since these studies merely failed to demonstrate the presence of cancer, rather than prove it's entirely absent, we think it prudent to remove your pancreas, left lung, bladder, prostate, and colon.” These studies showing no deterrence may not “cancel out” the pro-deterrence studies, but they, along with the criticisms of the 16 studies cited by Sharp, certainly cast considerable doubt about their claims. (And of course, Mr. Sharp makes no mention of the few studies that have actually shown a negative effect for the DP, i.e., that it has a brutalizing effect on society—actually increasing the murder rate7). The truth is that at best, no conclusive evidence has yet been demonstrated for deterrence, yet DP proponents continue to cite its elusive palliative effects, proof be damned, to show its necessity even though there are real and palpable costs to retaining capital punishment. As Albert Camus stated in his great treatise on the DP, “Reflections on the Guillotine”--

The State will keep it [the DP] . . . in the blind hope that one man at least, one day at least, will be stopped from his murderous gesture by thought of the punishment [of death] and, without anyone's ever knowing it, will justify a law that has neither reason nor experience in its favor. In order to continue claiming that the [DP] is exemplary, the State is consequently led to multiply very real murders in the hope of avoiding a possible murder which, as far as it knows or ever will know, may never be perpetrated. An odd law, to be sure, which knows the murder it commits and will never know the one it prevents.8

But even if Sharp were to acknowledge that there is no proof of a deterrent effect for the DP, he would still trumpet the supposed “enhanced incapacitation benefits of the death penalty over incarceration.” While barely arguable, this claim is actually another mirage served up as undeniable truth. First of all, one has to remember that only a tiny proportion of murderers actually end up with a death sentence, about 2% if my memory serves. Recall that, according to Mr. Sharp, the purported enhancement represented by capital punishment lies in the prevention of future murders by these individuals—murders that come about because of the possibility of “[p]ardon, commutation, escape, clerical error, change in the law, etc.” How many first degree murderers are pardoned each year (excluding those who have proven their innocence)? Virtually none. Commutations, at least for first degree murderers (theoretically the only kind eligible for a death sentence), are likewise rare9 [even if we include those who have been granted clemency for “humanitarian” reasons, i.e., because they've been rendered harmless by age and terminal illness--and we cannot even consider those whose death sentences are commuted to life without parole as without a DP such commutations would not exist] . How many murderers leave prison due to clerical error? Again, virtually none. Escape? A very few inmates escape from medium or maximum security prisons each year (an occurrence rare enough that it makes big headlines when it happens), only a small fraction of which are murderers. Change in the law? It does occasionally happen that a killer will end up with significantly reduced time due to a modification of a statute, but generally, politicians are afraid to appear anything but tough on crime, so again, these instances are not commonplace, especially in recent years (the situation in New Jersey where the DP was jettisoned being a happy exception—but again, since this involved persons under a sentence of death, they cannot be counted in this consideration). As far as the “etc.” methods of leaving prison, these are particularly difficult to quantify, but almost certainly would amount to something close to zero. I do not believe tallies are available for these occurrences, but let's exaggerate and say that 2% of first degree murderers leave prison each year due to these reasons. If we put the 150 individuals who are presently consigned to death row each year (the numbers have actually been far less over the past 4 years but we'll exaggerate in Mr. Sharp's favor for the sake of argument), and instead sentence them to life and place them in the general prison population, assuming that the 2% “leaving early” figure would apply to them as well (though in truth, it would be less as many on death row, like psychopathic killers and hit men, would be much less likely to ever be considered for pardon or commutation)--we are talking about the early ejection from prison of three extra killers each year. When one takes into account that the recidivism rate among murderers is less than 6%--doing the math, we see that we're actually talking about one extra murder every five years or so. Even one extra murder is a horrible, almost unfathomable tragedy—but so is sentencing an innocent to death, something that happens more than once each year (recall an average of 3.7 death row inmates have been released each year due in large measure to evidence of innocence). The death penalty, then, is more an enhancement of injustice than it is an enhancement of incapacitation. Mr. Sharp so often paints the arguments of the anti-DP coalition as nothing but “lies and deceit,” but how should we characterize his (and other proponents) overblown appeals to the 'baser angels of our nature'--i.e., to fear (as in “If we don't kill them they will just be getting out to kill again!”), to prop up their positions? I might be considered justified to turn the tables on Mr. Sharp and ascribe these terms to some of his arguments, but I will refrain from doing so as I make no claim of omniscience and cannot pretend to know what prompted his errors. It is, in fact, a characteristic of many on both sides of this or any argument—to rely on hyperbole and distortion to enhance their positions. This is a human characteristic, one which the DP advocates can hardly lay claim to being exempt as I have shown.

Though there are plenty of reasons to oppose the DP—many, many more than I have touched on—surely the certainty of executing the innocent should be sufficient reason by itself to outlaw this remnant of a barbaric past. Mr. Sharp and other proponents will continue to discount the possibility of executing the guiltless, reducing these very real horrors to baseless fabrications of the squeamish, or shrugging them off as by-products of a system whose “necessity” cannot be questioned--a necessity that cannot be demonstrated, a necessity that defies rationality, a necessity that virtually every other western democracy somehow manages to do without. Albert Camus, after taking the reasonable position that human justice is frail, asks--

[How can we then] conclude that such frailty authorizes us to pronounce an absolute judgment and that, uncertain of ever achieving pure justice, society must rush headlong, through the greatest risks, toward supreme injustice? If justice admits that it is frail, would it not be better for justice to be modest and allow its judgments sufficient latitude so that a mistake can be corrected? Could not justice concede to the criminal the same weakness in which society finds a sort of permanent extenuating circumstance for itself? Can the jury decently say: “If I kill you by mistake, you will forgive me when you consider the weaknesses of our common nature. But I am condemning you to death without considering those weaknesses or that nature?10

Mr. Sharp's opinions on this matter remain an obstacle to the advancement of not only the United States but of mankind as a whole. Fortunately, we now see that progress is being made toward the divestment of this relic even in the US. Where once we had to look overseas for hopeful signs that the DP might one day be discarded, the tide has clearly turned over the past few years in America. We have seen juries less and less inclined to impose this sentence and prosecutors seek it less often (since 1994 when 328 persons were sentenced to death, the number has steadily declined falling to about 111 last year). Since the Supreme Court declared the DP to be unconstitutional in 1972, we had seen state after state adopt it, with Kansas being the 38th to implement it in 1994. Since then, the states without it have repelled attempts to bring it back, and now, finally, two DP states have abolished it—New York and New Jersey, with several others on the verge of doing the same. The tide of legal homicide is clearly moving away from shore as the momentum has clearly shifted. I expect there will be stumbling blocks aplenty in the future—detours, reversals of fortune—and the tide may come rushing back in . . . but when this occurs, all one need do is look at the arc of human history to realize that the tectonics of justice, slow but inexorable, are moving to strip away the sandy soil upon which rests the crumbling foundations of philosophies like those of Mr. Sharp. I invite Mr. Sharp and those who believe as he does, to change the direction of their focus away from the past and toward the future, becoming a force for positive change rather than a retardant binding us to medieval ways of thinking. Join us or be swept aside by the forces of change.

I leave the last word for an individual for whom I have a degree of admiration and respect which is exceeded by no one. Hers is a voice that is nearly impossible to ignore, coming as it does from one who has experienced firsthand the agony of losing a loved one to murder. Marietta Jaeger-Lane's 7 year old daughter was kidnapped and killed while they were on a camping trip in Montana. She nonetheless has come to believe the DP to be a societal cancer. Hers is not the only voice of victims' family members who oppose this archaic monstrosity, but it is certainly among the most eloquent.

Loved ones, wrenched from our lives by violent crime, deserve more beautiful, noble and honorable memorials than premeditated, state-sanctioned killings. The death penalty only creates more victims and more grieving families. By becoming that which we deplore -- people who kill people -- we insult the sacred memory of all our precious victims.

Concerning the claim of justice for the victim's family, I say there is no amount of retaliatory deaths that would compensate to me the inestimable value of my daughter's life, nor would they restore her to my arms. To say that the death of any other person would be just retribution is to insult the immeasurable worth of our loved ones who are victims. We cannot put a price on their lives. That kind of justice would only dehumanize and degrade us because it legitimates an animal instinct for gut-level bloodthirsty revenge.

In my case, my own daughter was such a gift of joy and sweetness and beauty, that to kill someone in her name would have been to violate and profane the goodness of her life; the idea is offensive and repulsive to me.11

As it will be for all mankind, one day.

Peace. (A list of recommended readings/partial bibliography found below following end-notes.)

Thomas W. Muther, Jr.
Kansas Coalition Against the Death Penalty; Journey of Hope: from Violence to Healing; Murder Victims' Families for Reconciliation; Murder Victims' Families for Human Rights; ACLU; National Coalition to Abolish the Death Penalty; Project No Spank

NOT copyrighted 2007-2008 or at any other time, by Thomas W. Muther, Jr. but permission is given in any case for distribution of this document, in whole or in part, with attribution.

Mr. Muther has NOT appeared on ABC, BBC, CBS, CNN, C-SPAN, FOX, NBC, NPR, PBS, VOA, ASPCA, NBA, FBI, XYZ or any other TV and radio network (except as a background figure at several demonstrations/protests against the death penalty), but has actually been quoted in a few newspapers here and there.

The point being that even Mr. Muther, a relative peon in the DP movement, can refute or at least call into serious question every assertion of a purported celebrity among DP apologists without even nearing the bottom of his bag of counter-arguments. Imagine what a Sister Helen, or a Rick Halperin, or a Hugo Adam Bedau might do.
1 Mr. Wilhoite figures prominently in John Grishom,s book, The Innocent Man, though it was a fellow inmate who was the main focus of the work.

2 One has to wonder how Mr. Sharp explains the release of the 105 individuals from death row above and beyond his figure of 25 innocents. Soft-hearted prosecutors who release obviously guilty individuals from death row in order to ruin their chances for advancement? Judges who order depraved killers to be freed in order to curry the favor of . . . who exactly? Mobsters?

3 Now, in another paper by Mr. Sharp [see:], he argues that the Supreme Court HAS so ruled in its Herrera decision, writing that “Justice O’Connor’s concurring opinion makes clear that Herrera does not stand for [the] proposition” that it is constitutionally acceptable to execute an innocent person and once again calls the claims of abolitionists to the contrary a “fraud” [he seems to get much joy in referring to our arguments in these terms]. He bases this position on selective quotations from O'Connor's opinion, and essentially ignores the fact that her concurring opinion was not that of the majority. A closer look at the entire record reveals some disturbing information (at least for those who believe the execution of an innocent to be unacceptable). As Sharp notes, O'Connor does say that “the execution of a legally and factually innocent person would be a constitutionally intolerable event," but she also states in her opinion that Herrera was not “innocent in any sense of the word" noting that he was not “factually innocent” because he had been “tried before a jury of his peers, with the full panoply of protections that our Constitution affords criminal defendants [and] at the conclusion of that trial, the jury found [Herrera] guilty beyond a reasonable doubt." Obviously, what makes a person “factually innocent” has nothing to do with a decision of a jury (by that reasoning, O. J. Simpson is “factually innocent”), but whether he/she actually committed the crime. The jury's decision will have absolutely no effect on this reality either way. Regardless, O'Connor's faulty reasoning certainly must color our interpretation of her statement regarding the “execution of a legally and factually innocent person” being “intolerable.” And she rejects the notion that the court was even considering this proposition, writing that “the issue before us is not whether a State can execute the innocent. It is, as the Court notes, whether a fairly convicted and therefore legally guilty person is constitutionally entitled to yet another judicial proceeding in which to adjudicate his guilt anew, 10 years after conviction, notwithstanding his failure to demonstrate that constitutional error infected his trial.” O'Connor's opinion, then, cannot be taken as an unequivocal rejection of the idea that the Constitution allows the execution of the guiltless.

But as noted earlier, O'Connor's opinion was not even the majority statement. Mr. Sharp conveniently fails to quote from that statement, written by William Rehnquist, which held that claiming actual innocence based on new evidence was insufficient grounds by itself for federal habeas corpus relief. “Few rulings would be more disruptive,” he wrote, “of our federal system than to provide for federal habeas review of freestanding claims of actual innocence.” Heaven forbid that justice should disrupt the well-oiled machinery of death. He went on:

“Were petitioner to satisfy the dissent's ‘probable innocence’ standard…the District Court would presumably be required to grant a conditional order of relief, which would in effect require the State to retry petitioner 10 years after his first trial, not because of any constitutional violation which had occurred at the first trial, but simply because of a belief that in light of petitioner's new-found evidence a jury might find him not guilty at a second trial.”

There is a clear implication in this, the majority opinion, that innocence is not of itself a constitutional impediment to execution.

4 Michael Posner, “Life, Death, and Uncertainty” The Boston Globe; July 8, 2001.

5 Okay, I admit to resorting to a bit of hyperbole here. Though competent defense counsel remains a difficult problem for all but the well-heeled, especially in the South, there have been some nation-wide improvements in this area. Still, I cannot stress enough that the disparities in legal representation which presently exist between the haves and have-nots is a gulf too wide to tolerate . . . at least for any who believe in Justice.

6 I'm certain Mr. Sharp will vigorously disagree with my portraying the DP system as a lottery, and will insist there is a huge difference between the accidental sentencing of an innocent to death (an incident so rare as to be unworthy of note in Mr. Sharp's universe of wishful thinking), where--hopefully--a vigorous effort was made to actually determine the truth, and a lottery system by which some innocent is intentionally chosen to be sacrificed. But he is wrong, of course, at least from the perspective of the one so chosen. For such a one, it would matter not at all if he were being executed according to the dictates of chance or a miscarriage of justice. In the end, he will be just as dead, and just as innocent either way.

7 For an excellent example of such a study, see: “Deterrence or Brutalization? An Impact Assessment of Oklahoma's Return to Capital Punishment,” Cochran, Chamlin, & Seth; Criminology vol. 32, Number 1, Feb. 1994. The authors examined the effect of Oklahoma's first execution in 25 years, which took place in 1990, on murder rates. It was their hypothesis that the rate of murders would actually go down around the time of an execution for certain types of murder, while increasing the murder rate for other types. Their finding was that the execution failed to exert a positive (that is inhibiting) effect on any category of murder, while their was a significant spike in the number of stranger homicides over the period examined, i.e., they found a brutalizing effect for executions.

8 Camus, Albert “Reflections on the Guillotine,” Resistance, Rebellion, and Death (Vintage Books,1974), pg. 194.

9 Not withstanding the extraordinary exception of Illinois where Gov. Ryan commuted the sentences of all death row inmates in the state [to life, so they won't be getting out] after it became clear that Illinois' DP system was broken, what with 13 innocents having been released from their death row* since the penalty was reinstated, with 12 people having been executed over the same period—a ratio he found troubling.
*At the time--the number having since grown to 18.

10 Camus, pg. 217-218.

11 An excerpt from a presentation given by Ms. Jaeger-Lane, which can be found at the Journey of Hope: From Violence to Healing website, along with more information about her life and work, and the work of other individuals who have lost a loved one to violence and yet campaign to end the DP. See: for their homepage, and: for Marietta's page.


“Reflections on the Death Penalty”—Albert Camus (an essay found in Resistance, Rebellion and Death, (a collection of essays and letters by Camus)

Wild Justice: The Evolution of Revenge—Susan Jacoby (traces the development of the idea of “Justice.”)

For Your Own Good: Hidden Cruelty in Childrearing and the Roots of Violence—Alice Miller
(A masterful, groundbreaking examination of the root cause of crime and violence and how these are traits are passed between generations.)

Dead Man Walking—Sister Helen Prejean (A then na├»ve nun finds herself at the center of the
maelstrom that is the DP when she agrees to be spiritual advisor to a death row inmate.)

The Death of Innocents—Sister Helen Prejean (A much wiser nun examines the cases of two death row inmates she gave spiritual counsel to who she came to believe were innocent but were executed nonetheless.)

Among the Lowest of the Dead—David von Drehle (an extremely well-written account of Florida's problematic re-engagement with capital punishment in the 70's and 80's.)

The Death Penalty in America—Hugo Adam Bedau (A good overview)

Capital Punishment—Charles L. Black, Jr. (An incisive look into some of the problems with DP legislation and practice.)

Legal Homicide: Death as Punishment in America—William Bowers (THE textbook on the DP—history, practice, law.)

“Fatal Defense,” The National Law Journal, June 11, 1990—Coyle, Strasser, and Lavell. (A study of the problems with the quality of legal representation in capital trials.)

The Biblical Truth about America's Death Penalty—Dale S. Recinella (A comprehensive look at what the Bible REALLY says about the DP, with a particularly interesting comparison between current US practice and the DP practices of the “Old Testament” Jews.)

“He Didn't Do It,” American Lawyer, Dec. 1994—Stuart Taylor (A look at the Schlup case.)

For Capital Punishment: Crime and the Morality of the Death Penalty—Walter Berns (Undoubtedly the best work—albeit still backward and flawed—in support of the DP)

Also, check out the Death Penalty Information Center which has a wealth of frequently updated information on the topic, at:

dudleysharp said...

Mr. Muther:

You very much miunderstand me and my position. Statistics don't tell personal tragedies. Everyone is aware of that. Everyone is also aware that being an innocent murdered or an innocent found guilt is a horrible thing. I have always recognized that and it never leaves me in my consideration of these issues. Again, innocents are more at risk without the death penalty.

And you misinterpreted what I wrote. I did not change from 25 then to 30-40. The 25 is my number. The 30-40 is from a NY Times reporter.

You write: "A fact beyond dispute: since 1973, 130 persons have been freed from death row with evidence of innocence (or the utter refutation of the prosecution's case) being the primary cause."

No, it is a complete scam. I note you use DPIC as a reference, at bottom.

Some fact checking for you to do.

I have a much, much more detailed review, than this, below and will forward it if you still think my case is weak.

Re: fact checking issues, on innocence and the death penalty.

It is very important to take note that the 130 exonerated from death row is a blatant scam, easily uncovered by fact checking.

The Death Penalty Information Center has been responsible for some of the most serious deceptions by the anti death penalty side, includsive of this 130 exonerated and innocence scam.

Dieter and DPIC have produced the claims regarding the exonerated and innocents released from death row list. The scam is that DPIC just decided to redefine what exonerated and innocence mean according to their own perverse definitions.

Richard Dieter, head of the Death Penalty Information Center (DPIC): defining what "exonerated" or "innocent" means.

". . . (DPIC) makes no distinction between legal and factual innocence. " 'They're innocent in the eyes of the law,' Dieter says. 'That's the only objective standard we have.' "

That is untrue, of course. We are all aware of the differences between legal guilt and actual guilt and legal innocence (not guilty) and actual innocence, just as the courts are.

Furthermore, there is no finding of actual innocence, but it is "not guilty". Dieter knows that we are all speaking of actual innocence, those cases that have no connection to the murder(s). He takes advantage of that by redefining exonerated and innocence.

Dieter "clarifies" the three ways that former death row inmates get onto their "exonerated" by "innocence" list.

"A defendant whose conviction is overturned by a judge must be further exonerated in one of three ways: he must be acquitted at a new trial, or the prosecutor must drop the charges against him, or a governor must grant an absolute pardon."

None establishes actual innocence.

DPIC has " . . . included supposedly innocent defendants who were still culpable as accomplices to the actual triggerman."

DPIC: "There may be guilty persons among the innocents, but that includes all of us."

Good grief. DPIC wishes to apply collective guilt of capital murder to all of us.

Dieter states: "I don't think anybody can know about a person's absolute innocence." (Green). Dieter said he could not pinpoint how many are "actually innocent" -- only the defendants themselves truly know that, he said." (Erickson)

Or Dieter won't assert actual innocence in 1, 102 or 350 cases. He doesn't want to clarify a real number with proof of actual innocence, that would blow his entire deception.

Or, Dieter declare all innocent: "If you are not proven guilty in a court of law, you're innocent." (Green)

Dieter would call Hitler and Stalin innocent. Those are his "standards".

And that is the credibility of the DPIC.

For fact checking.

1. "Case Histories: A Review of 24 Individuals Released from Death Row", Florida Commission on Capital Cases, 6/20/02, Revised 9/10/02 at

83% error rate in "innocent" claims.

2. "Is 'the innocence list' an appropriate name?", 1/19/03

Dieter admits they don't discern between legal innocence and actual innocence. One of Dieter's funnier quotes;"The prosecutor, perhaps, or Dudley Sharp, perhaps, thinks they're still guilty because there was evidence of their guilt, but that's a subjective judgment." Yep, "EVIDENCE OF GUILT", can't you see why Dieter would think they were innocent? And that's how the DPIC works.

3. The Death of Innocents: A Reasonable Doubt,
New York Times Book Review, p 29, 1/23/05, Adam Liptak,
national legal correspondent for The NY Times

"To be sure, 30 or 40 categorically innocent people have been released from death row . . . ".

That is out of the DPIC claimed 119 "exonerated", at that time, for a 75% error rate.

NOTE: It's hard to understand how an absolute can have a differential of 33%. I suggest the "to be sure" is, now, closer to 25.


5. "The Death Penalty Debate in Illinois", JJKinsella,6/2000,


Origins of "innocence" fraud, and review of many innocence issues

7. "Bad List", Ramesh Ponnuru, National Review, 9/16/02

How bad is DPIC?

8. "Not so Innocent", By Ramesh Ponnuru,National Review, 10/1/02

DPIC from bad to worse.

Dudley Sharp, Justice Matters
e-mail, 713-622-5491,
Houston, Texas

Mr. Sharp has appeared on ABC, BBC, CBS, CNN, C-SPAN, FOX, NBC, NPR, PBS , VOA and many other TV and radio networks, on such programs as Nightline, The News Hour with Jim Lehrer, The O'Reilly Factor, etc., has been quoted in newspapers throughout the world and is a published author.

A former opponent of capital punishment, he has written and granted interviews about, testified on and debated the subject of the death penalty, extensively and internationally.

dudleysharp said...

Hyperbole, you are good at.

Regarding Herrera, being found guilty does not make someone factually guilty, just as being found not guilty doesn't make someone not the actually criminal.

You forgot some facts in Herrera.

First, O'Connor was in the majority and

"Nonetheless, the proper disposition of this case isneither difficult nor troubling. No matter what the Court might say about claims of actual innocence today, petitioner could not obtain relief. The record overwhelmingly demonstrates that petitioner deliberately shot and killed Officers Rucker and Carrisalez the night of September 29, 1981; petitioner's new evidence is bereft of credibility. Indeed, despite its stinging criticism of the Court's decision, not even the dissent expresses a belief that peti tioner might possibly be actually innocent. Nor could it:The record makes it abundantly clear that petitioner is not somehow the future victim of "simple murder," post, at 18 (dissenting opinion), but instead himself theestablished perpetrator of two brutal and tragic ones."

I encourage a full reading of O'Connor's concurrence, as well as of the entire case

dudleysharp said...

Niether Tafero nor Jacobs are/were innocent, by any definition of the word.

Two reviews:

Read The Myth of Innocence

about half way in

and pages 40-46

dudleysharp said...

Yes, you're right:

"I'm certain Mr. Sharp will vigorously disagree with my portraying the DP system as a lottery,"

Arbitrary and capricious
About 10% of all murders within the US might qualify for a death penalty eligible trial.  That would be about 64,000 murders since 1973.  We have sentenced 8000 murderers to death since then, or 13% of those eligible.  I doubt that there is any other crime which receives a higher percentage of maximum sentences, when mandatory sentences are not available.  Based upon that, as well as pre trial, trial, appellate and clemency/commutation realities, the US death penalty is likely the least arbitrary and capricious criminal sanctions in the  US.

dudleysharp said...

How bad has it gotten on the anti death penalty side?

" . . .makes you realize the Dead Man Walking truly belongs on the shelf in the library in the Fiction category." "Being devout Catholics, 'the norm' would be to look to the church for support and healing. Again, this need for spiritual stability was stolen by Sister Prejean."
Victim Survivors, Dead Family Walking


I. Dead Family Walking: The Bourque Family Story of Dead Man Walking , by D. D. deVinci, Goldlamp Publishing, 2006

"On November 5, 1977, the Bourque's teenage daughter, Loretta, was found murdered in a trash pile near the city of New Iberia, Louisiana lying side by side near her boyfriend–with three well-placed bullet holes behind each head. "

contact T.J. Edler, 337-967-0840,

II. The Victims of Dead Man Walking
by Michael L. Varnado, Daniel P. Smith

comment -- A very different story than that written by Sister Helen Prejean. Detective Varnado was the investigating officer in the murder of Faith Hathaway. 2003

III.   Death Of Truth:  Sister Prejean's book The Death Of Innocents: An Eyewitness Account of Wrongful Executions.

For some years, there has existed a consistent pattern, from death penalty opponents, to declare certain death row inmates to be actually innocent. Those claims have, consistently, been 70-83% in error.  ("ALL INNOCENCE ISSUES -- THE DEATH PENALTY")

Keep that in mind with "Death of Innocents".

Readers should be very careful, as they have no way of knowing if any of the fact issues in either of the two cases, as presented by Sister Prejean, are true.  Readers would have to conduct their own thorough, independent examination to make that determination. You can start here.

Four articles


quote: "The DNA report commissioned by O'Dell and his lawyers actually corroborates O'Dell's guilt. There is a three-probe DNA match indicating that the bloodstains on O'Dell's clothing is indeed consistent with the victim Helen Schartner's DNA as well as her blood type and enzyme factors." "There is certainly no truth to O'Dell's accusation that evidence was suppressed or witnesses intimidated by the prosecution."

(b) "Sabine district attorney disputes author's claims in book"

quote: "I don't know whether she is deliberately trying to mislead the public or if she's being mislead by others. But she's wrong,"
District Atty. Burkett, dburkett(AT)

(c)  Book Review: "Sister Prejean's Lack of Credibility: Review of "The Death of Innocents", by Thomas M. McKenna (New Oxford Review,  12/05).

"The book is moreover riddled with factual errors and misrepresentations."

"Williams had confessed to repeatedly stabbing his victim, Sonya Knippers."

"This DNA test was performed by an independent lab in Dallas, which concluded that there was a one in nearly four billion chance that the blood could have been someone's other than Williams's."

" . . . despite repeated claims that (Prejean) cares about crime victims,  implies that the victim's husband was a more likely suspect but was overlooked because the authorities wanted to convict a black man."

" . . . a Federal District Court . . . stated that 'the evidence against Williams was overwhelming.'  " "The same court also did "not find any evidence of racial bias specific to this case." 

"(Prejean's) broad brush strokes paint individual jurors, prosecutors, and judges with the term "racist" with no facts, no evidence, and, in most cases, without so much as having spoken with the people she accuses."

"Sr. Prejean also claims that Dobie Williams was mentally retarded. But the same federal judge who thought he deserved a new sentencing hearing also upheld the finding of the state Sanity Commission report on Williams, which concluded that he had a "low-average I.Q.," and did not suffer from schizophrenia or other major affective disorders. Indeed, Williams's own expert at trial concluded that Williams's intelligence fell within the "normal" range. Prejean mentions none of these facts."

"In addition to lying to the police about how he came to have blood on his clothes, the best evidence of O'Dell's guilt was that Schartner's (the rape/murder victim's) blood was on his jacket. Testing showed that only three of every thousand people share the same blood characteristics as Schartner. Also, a cellmate of O'Dell's testified that O'Dell told him he killed Schartner because she would not have sex with him."

"After the trial, LifeCodes, a DNA lab that O'Dell himself praised as having "an impeccable reputation," tested the blood on O'Dell's jacket -- and found that it was a genetic match to Schartner. When the results were not to his liking, O'Dell, and of course Sr. Prejean, attacked the reliability of the lab O'Dell had earlier praised. Again, as with Williams's conviction, the federal court reviewing the case characterized the evidence against O'Dell as 'vast' and
'overwhelming.'  "

Sr. Prejean again sees nefarious forces at work. Not racism this time, for O'Dell was white. Rather, she charges that the prosecutors were motivated to convict by desire for advancement and judgeships. Yet she never contacted the prosecutors to interview them or anyone who might substantiate such a charge.

"(Prejean) omits the most damning portion of (O'Dell's criminal) record: an abduction charge in Florida where O'Dell struck the victim on the head with a gun and told her that he was going to rape her. This very similar crime helped the jury conclude that O'Dell would be a future threat to society. It supports the other evidence of his guilt and thus undermines Prejean's claim of innocence."

"There is thus a moral equivalence for Prejean between the family of an innocent victim and the newfound girlfriend of a convicted rapist and murderer."

"This curious definition of "the victims" suggests that her concern for "victims" seems to be more window-dressing for her cause than true concern."

(d) Hardly The Death Of Innocents: Sister Prejean tells it like it wasn't -- Joseph O'Dell
by Anonymous, at author's request

In lionizing convicted murderer Joseph O'Dell as being an innocent man railroaded to his 1997 execution by Virginia prosecutors, Sister Helen Prejean presents a skewed summary of the case to bolster her anti-death penalty agenda. While she is a gifted speaker, she is out of her element when it comes to "telling it as it was" in these cases.

Prejean got to walk with O'Dell into the death chamber at Greensville Correctional Center on July 22, 1997. However, she wasn't in Virginia Beach some 12 years earlier when he committed the crime for which he was arrested, convicted and sentenced to death. That is where the real demon was evident, not the sweet talking condemned con-man that she met behind bars. O'Dell was, in the words of then Virginia Beach Deputy Commonwealth's Attorney Albert Alberi (case prosecutor), one of the most savage, dangerous criminals he had encountered in a two decade career.

Indeed,O'Dell had spent most of his adult life incarcerated for various crimes since the age of 13 in the mid-1950's. At the time of the Schartner murder in Virginia, O'Dell had been recently paroled from Florida where he had been serving a 99 year sentence for a 1976 Jacksonville abduction that almost ended in a murder of the female victim (had not police arrived) in the back of his car.

The circumstances of that crime were almost identical to those surrounding Schartner's murder. The victim of the Florida case even showed up in Virginia to testify at the trial.   Scarcely a mention of this case is made in the Prejean book.

Briefly, let me outline some of the facts about the case: Victim Helen Schartner's blood was found on the passenger seat of Joseph O'Dell's vehicle. Tire tracks matching those on O'Dell's vehicle were found at the scene where Miss Schartner's body was found. The tire tread design on O'Dell's vehicle wheels were so unique, an expert in tire design couldn't match them in a manual of thousands of other tire treads. The seminal fluids found on the victim's body matched those of Mr. O'Dell and pubic hairs of the victim were found on the floor of his car.

The claims that O'Dell was "denied" his opportunity to present new DNA evidence on appeals were frivolous. In fact, he had every opportunity to come forward with this evidence, but his lawyers refused to reveal to the court the full findings of the tests which they had arranged to be done on a shirt with blood stains, which O'Dell's counsel claimed might show did not have the blood marks from the defendant or the victim.

Manipulative defense lawyer tactics were overlooked by Prejean in her narrative.  O'Dell was far from a victim of poor counsel.  As matter of fact, the city of Virginia Beach and state government gave O'Dell an estimated $100,000 for his defense team at trial.  This unprecedented amount nearly bankrupted the entire indigent defense fund for the state. He had great lawyers, expert forensic investigators and every point at the trial was contested two to five times.

There was no "rush to justice" in this case.

O'Dell's alibi for the night of Schartner's murder was that he had gotten thrown out of the bar where he encountered Schartner following a brawl. However, none of the several dozen individuals supported his contention - there weren't any fights that night. Rather, several saw Miss Schartner getting into O'Dell's car on what would be her last ride.

But Prejean would want us to believe the claims of felon Joseph O'Dell. He had three trips to the United States Supreme Court and the "procedural error" which Prejean claims ultimately doomed him was the result of simple ignorance of basic appeals rules by his lawyers.

Nothing in the record ever suggested that Joseph O'Dell, two time killer and rapist, was anything but guilty of the murder of Helen Schartner.

Justice was properly served.

IV.   Sister Helen Prejean on the death penalty

"It is abundantly clear that the Bible depicts murder as a capital crime for which death is considered the appropriate punishment, and one is hard pressed to find a biblical ‘proof text’ in either the Hebrew Testament or the New Testament which unequivocally refutes this. Even Jesus’ admonition ‘Let him without sin cast the first stone,’ when He was asked the appropriate punishment for an adulteress (John 8:7) - the Mosaic Law prescribed death - should be read in its proper context. This passage is an ‘entrapment’ story, which sought to show Jesus’ wisdom in besting His adversaries. It is not an ethical pronouncement about capital punishment .” Sister Helen Prejean, Dead Man Walking.

The sister’s analysis is consistent with much theological scholarship. Also, much scholarship questions the authenticity of John 8:7.

From here, the sister states that “ . . .  more and more I find myself steering away from such futile discussions (of Biblical text). Instead, I try to articulate what I personally believe . . . ” The sister has never shied away from any argument, futile or otherwise, which opposed the death penalty. She has abandoned biblical text for only one reason: the text conflicts with her personal beliefs.

Sister Prejean rightly cautions: "Many people sift through the Scriptures and select truth according to their own templates." (Progressive, 1/96). Sadly, Sister Prejean appears to do much worse. The sister now uses that very same biblical text “Let the one who is without sin cast the first stone” as proof of Jesus’ “unequivocal” rejection of capital punishment as “revenge and unholy retribution”!  (see Sister Prejean’s 12/12/96 fundraising letter on behalf of the Saga Of Shame book project for Quixote Center/Equal Justice USA)

V. Redemption and the death penalty

The movie Dead Man Walking reveals a perfect example of how just punishment and redemption can work together. Had rapist/murderer Matthew Poncelet not been properly sentenced to death by the civil authority, he would not have met Sister Prejean, he would not have received spiritual instruction, he would not have taken responsibility for his crimes and he would not have reconciled with God.

Had Poncelet never been caught or had he only been given a prison sentence, his character makes it VERY clear that those elements would not have come together. Indeed, for the entire film and up until those last moments, prior to his execution, Poncelet was not truthful with Sister Prejean. His lying and manipulative nature was fully exposed at that crucial time. It was not at all surprising, then, that it was just prior to his execution that all of the spiritual elements may have come together for his salvation. It was now, or never.

Truly, just as St. Aquinas stated, it was Poncelet's pending execution which may have led to his repentance. For Christians, the most crucial concerns of Dead Man Walking must be and are redemption and eternal salvation.

For that reason, it may well be, for Christians, the most important pro-death penalty movie ever made.

In the book, murderer Patrick Sonnier stated: "I don't want to leave this world with any hatred in my heart. I want to ask your forgiveness for what me and Eddie done, but Eddie done it".
Prejean says: "(Patrick Sonnier)  seems to accept that he is responsible for what had happened, even though he claims not to have killed the teenagers. ... I suspend judgment. With the electric chair waiting, with death close like this, who the triggerman was seems not the point."
The most important point of any Christian ministry is salvation. If  the most important part of any Christian ministry is saving souls, and Sonnier is lying, and redemption is undermined, that seems a very important point.  What could be a more important point for a death row ministry? Ending the death penalty?
In the movie, murderer Matthew Poncelet repeats the final words of one of the real murderers, Robert Willie: "I would just like to say ... that I hope you get some relief from my death. Killing people is wrong. That's why you've put me to death. It makes no difference whether it's citizens, countries, or governments. Killing is wrong."
Here, tragically, hauntingly, it seems that Sister Prejean has taught Willie to be an anti death penalty activist. The crucial elements of atonement, expiation, responsibility and forgiveness are replaced by the  classic anti death penalty saying that all "Killing is wrong",  the amoral position of equating murder and execution, violent crime and just sanction, the guilty murderer with the innocent victim - the worst set of messages for the murderer's redemption.

In his final statement, , Dennis Gentry, executed April 16, 1997, for the premeditated murder of his friend Jimmy Don Ham, stated: "I’d like to thank the Lord for the past 14 years (on death row) to grow as a man and mature enough to accept what’s happening here tonight. To my family, I’m happy. I’m going home to Jesus." As the lethal drugs began to flow, Gentry cried out, "Sweet Jesus, here I come. Take me home. I’m going that way to see the Lord." (Michael Gracyk, Associated Press, Houston Chronicle, 4/17/97). 
We cannot know if Gentry or the two real murderers from the DMW book really did repent and receive salvation.

But, we do know that St. Aquinas advises us that murderers should not be given the benefit of the doubt. We should err on the side of caution and not give murderers the opportunity to harm again.

"The fact that the evil, as long as they live, can be corrected from their errors does not prohibit the fact that they may be justly executed, for the danger which threatens from their way of life is greater and more certain than the good which may be expected from their improvement. They also have at that critical point of death the opportunity to be converted to God through repentance. And if they are so stubborn that even at the point of death their heart does not draw back from evil, it is possible to make a highly probable judgement that they would never come away from evil to the right use of their powers." St. Thomas Aquinas, Summa Contra Gentiles, Book III, 146.

VI. On God and the death penalty

"(Sister Prejean)  received nothing but a stony silence, however, when she questioned the basis of the biblical crucifixion story as a "projection of our violent society." "Is this a God?" Prejean asked about the belief that God allowed his son, Jesus, to be sacrificed for the sins of humanity. "Or is this an ogre?" "The audience -- to that point in strong agreement with the author of "Dead Man Walking" -- said and did nothing." ("God, ogre comparison doesn't fly with interfaith crowd", Paul A. Anthony, Rocky Mountain News, 03:35 p.m., August 24, 2008).

It is understandable that the audience was stunned. Sister Prejean is questioning the bedrock of the Christian faith.

Appropriately, Pope Benedict XIV appears to rebuke her a few days later:  "If to save us the Son of God had to suffer and die crucified, it certainly was not because of a cruel design of the heavenly Father. The cause of it is the gravity of the sickness of which he must cure us: an evil so serious and deadly that it will require all of his blood. In fact, it is with his death and resurrection that Jesus defeated sin and death, reestablishing the lordship of God."  ("It Is Not 'Optional' for Christians to Take Up the Cross", 8/31/2008)

None should have been surprised.

It is not uncommon for persons of faith to create a god in their own image, to give to that god their values, instead of accepting those values which are inherent to the deity. Sister Prejean states, in reference to the death penalty, that "I couldn’t worship a god who is less compassionate than I am."(Progressive, 1/96).
She has, thereby, established  her standard of compassion as the basis for God’s being deserving of her devotion. If God’s level of compassion does not rise to the level of her own, God couldn’t receive her worship.
Director Tim Robbins (Death Man Walking) follows that same path, "(I) don’t believe in that kind of (g)od (that would support capital punishment and, therefore, would be the kind of god who tortures people into their redemption)." ("Opposing The Death Penalty", AMERICA, 11/9/96, p 12). Robbins establishes his standard for his God’s deserving of his belief. God’s standards do not seem to be relevant. Robbins' sophomoric comparison of capital punishment and torture are typical of the ignorance in this debate, are remarkably similar to the ogre message from Sister Prejean in Denver and reflect no biblical relevancy.
The movie scene where Poncelet is raised, vertical, arms outstretched on the gurney, seems an obvious recreation -  a visual representation of Christ's crucifixion. That was a conscious decision on the part of director Tim Robbins. It was not in the book and no execution gurney raises in such a fashion.  Would it be a reach to call that blasphemous?
Perhaps they should review Matthew 5:17-22 and 15:1-9.
And be cautious, for as the ancient rabbis warned, "Do not seek to be more righteous than your creator." (Ecclesiastes Rabbah 7.33)


Detective Varnado writes: "For those who believe in the teachings of Sister Helen Prejean as her journey continues in her effort to abolish the death penalty. 'For such are false apostles, deceitful workers, transforming themselves into the apostles of Christ. And, no marvel; for Satan himself is transformed into an angel of light. 2 Corinthians 11:13 & 14'  " --  From Detective Varnado's new book Soft Targets; A Women's Guide To Survival

Permission for distribution of this document, in whole or in part,  is approved with proper attribution.

Dudley Sharp, Justice Matters
e-mail,  713-622-5491,
Houston, Texas
Mr. Sharp has appeared on ABC, BBC, CBS, CNN, C-SPAN, FOX, NBC, NPR, PBS , VOA and many other TV and radio networks, on such programs as Nightline, The News Hour with Jim Lehrer, The O'Reilly Factor, etc., has been quoted in newspapers throughout the world and is a published author.
A former opponent of capital punishment, he has written and granted interviews about, testified on and debated the subject of the death penalty, extensively and internationally.
Pro death penalty sites   (Sweden)

dudleysharp said...

Mr. Muther:

Another one of your references was:

The Biblical Truth about America's Death Penalty—Dale S. Recinella

I find his review particulalrly weak.

Mr. Recinella is a Catholic lay minister to Florida's death row. His website is

To: Dale S. Recinella

From: Dudley Sharp, Justice Matters

Re: The death penalty & the Florida Bishops

CC: Gov. Crist, the Florida Bishops and Prof. Charles Rice

Dear Mr. Recinella:

The alleged reason for your lengthly reply ("Response to Dudley Sharp 6 Sep 2008.doc",
9/12/2008) was to correct what you saw as my errors within "Bishop errors, death penalty and forgiveness (6/26/2008).

However, my comments, that you were allegedly correcting, are at bottom, under my "signature". You never addresses any of them. I find my comments to be truthful and accurate.

You addressed a number of items which I never spoke to. My responses to those are given, here.

Dale S. Recinella (Dale) writes: "Surely, you could not have intended the ludicrous premise that you are the equal of the Catholic Bishops of Florida in regard to espousing the official teaching of the Catholic Church to our government." "By what authority do you place yourself in such a position? Who anointed you? Who taught you? Who ordained you?"

Sharp responds: I need only the authority of free speech to make my statements and they are never contradicted by you. However, I do find that the Church's newest death penalty premise is based upon a faulty prudential judgement. That is clear by reason. See "Pope John Paul II: Prudential Judgement and the death penalty"

Dale: Professor Rice readily acknowledges: "Church teaching has traditionally regarded the decision whether to exercise the authority of the state to impose the death penalty as, in effect, a prudential judgment subject to a strong presumption against the use of that penalty."

Sharp: I am familiar with Prof. Rice's writings. There are a number of Saints, Pope's etc. who disagree with the professors conclusion. In addition, as Cardinal Avery Dulles, SJ, stated: "Turning to Christian tradition, we may note that the Fathers and Doctors of the Church are virtually unanimous in their support for capital punishment, even though some of them such as St. Ambrose exhort members of the clergy not to pronounce capital sentences or serve as executioners." "Summarizing the verdict of Scripture and tradition, we can glean some settled points of doctrine. It is agreed that crime deserves punishment in this life and not only in the next. In addition, it is agreed that the State has authority to administer appropriate punishment to those judged guilty of crimes and that this punishment may, in serious cases, include the sentence of death. (10/7/2000).

Dale: "Has the Church changed its affirmation of the authority of the state to impose the death penalty? Or has it restricted the conditions under which that authority may rightly be exercised? The answer is: No on the first, Yes on the second.[11]"

Sharp: Both the Church and all states enforcing the death penalty have always had restrictions. And, of course, The Church is without the power to restrict "the conditions under which that authority (to impose the death penalty) may rightly be exercised" within the US or other countries. The Church has the right to state their case. Catholics and all others are free to disagree with that case, when based upon prudential judgement, especially faulty judgement.

Dale: "In short, Evangelium Vitae’s allowance of the death penalty only “in cases of absolute necessity…when it would not be possible to defend society” refers not to some generalized protection of society by imposing retribution or by deterring other potential offenders. Rather it refers only to the protection of society from this convicted criminal. The final text of the Catechism makes it explicitly clear that a Catholic can no longer argue for the death penalty from an undifferentiated need to protect society or to promote the common good."

Sharp: Cardinal Avery Dulles: "Pope John Paul II spoke for the whole Catholic tradition when he proclaimed, in Evangelium Vitae, that the direct and voluntary killing of an innocent human being is always gravely immoral (EV 57). But he wisely included in that statement the word innocent. He has never said that every criminal has a right to live nor has he denied that the State has the right in some cases to execute the guilty. " Catholics in good standing are free to disagree with the Church on the death penalty based upon their own prudential judgement, inclusive of the finding that the good Pope made an error in reason. The good Pope based his judgement on the state of the corrections system and it's method of supervision. This is hardly a proper manner of countering biblical and theological principles, many of which the Pope either, quite simply, discarded, out of hand, or, somehow, forgot to discuss.
See also "The Death Penalty: More Protection for Innocents "

Dale: "John Paul challenges the prevailing pagan culture of death on its basic premises. He insists that God—not the individual and not the state—is in charge of the ending as well as the beginning of human life. Because man is made in the image and likeness of God, all human life is sacred and all human persons have a sublime dignity that transcends the interests and power of the state. For these reasons, human life cannot be taken away except on God’s terms. We are called, each of us, to choose the culture of life rather than the culture of death.[13]"

Sharp: Pagan? That is rather an odd manner of describing and discarding nearly 2000 years of biblical, theological and traditional teachings of the Roman Catholic Church. This is, of course, a contradiction of Genesis 9:6, for which the good Pope's particular prudential judgement is no match, biblically, theologically or rationally. The death penalty is invoked under God's terms. biblically. I stand for life and support the death penalty. No contradiction.

Sincerely, Dudley Sharp


These are the actual comments I sent on June 26, 2008 and which were, allegedly, the target of your response. You addressed none of the points.

If you care to address them, now, I will respond. Sincerely, Dudley Sharp

Dear Governor Crist:

The Florida Catholic Bishops, with disturbing frequency, are making significant errors of omission while asking you to commute the death sentences of convicted murderers.

We can all forgive those who have harmed us, while still insisting that a just sentence by the state is appropriate. The Bishops are well aware of this.

The Bishops' comments are simply anti death penalty in nature and are little concerned with just sanctions or forgiveness. That is apparent, as the Bishops are not asking you to forgive and commute the sentences of those given sentences of less than death.

It should be noted that it is not up to you to forgive such murderers, but it is up to the murder victims, themselves, who are dead.

Please take the time to read the following essay, from a theological expert and Vatican insider. It will give you more insight than that which is being provided by the Florida Bishops.

The biblical, theological and traditional support for the death penalty has a nearly 2000 year history within the Catholic Church.

Sincerely, Dudley Sharp, Justice Matters