Thursday, March 17, 2005

Fascinating death penalty debate on 'absolute certainty' instead of 'beyond a reasonable doubt'

Yesterday the House held a long, rich debate that split the parties and natural allies in unexpected ways. The proposal came from GOP leader Cross to raise the legal standard for a jury to impose the death penalty in a first degree murder charge from the well-known 'beyond a reasonable doubt' to a new standard 'absolute certainty.' Beyond a reasonable doubt is not exactly self-defining. What exactly does 'beyond' mean? A jurur may have a reasonable doubt in her mind that the defendant committed the crime? Or the evidence must move 'beyond' that point so a juror may have some doubt in her mind, but less than a reasonable doubt? So does that mean an unreasonable doubt is the only type of doubt permitted? The phrase is poetic but not precise. The Cross bill substitutes that standard for 'absolute certainty' which is self-evident (at least more so than beyond a reasonable doubt) and is also a higher standard to meet. So the question then becomes strategic. If you support the death penalty, do you support this bill, which makes it more difficult to impose? And if you oppose the death penalty, do you oppose this bill which may male it easier for a future governor or General Assembly to lift the moratorium? Art Turner, a leading abolitionist, supported the bill while Barbara Flynn Currie, another long-time abolitionist, opposed it. The black caucus largely supported it while the latino caucus voted against it. Most white progressives (with the exception of BFC and Feigenholtz) supported it. On the death penalty side, former FBI agent Jim Sacia spoke against the bill as a de facto abolition of the death penalty prompting former Police Chief John Millner to speak in favor of the bill, sharing his experience working the last death penalty case in the state and assuring House members that the convicted defendant would have been convicted under the new standard as well. The states' attorneys who prosecute criminal cases were uniformly opposed as well. The bill passed with 66 votes, with Republicans supporting it by a 2 to 1 margin and Dems narrowly opposing the bill (further evidence, by the way, that Speaker Madigan is more than fair to House Republicans . . . a stunning contrast to GOP speakers in southern states who ignore Dems in the minority altogether). The bill's prospects in the Senate might be rockier, since Cross doesn't have the same pull over GOP senators than he does over GOP reps (though Cross does not as a rule try to impose direction on caucus members). I'm largely an abolitionist (although the John Wayne Gacy or Osama Bin Laden examples weaken my opposition on principle) and I think I would have voted yes on the bill. The moratorium is on shaky legal grounds (there is no law, just a shared understanding that no state's attorney will seek the death penalty out of deference to the governor who will not sign any death warrants) and I'll take an incremental improvement any day. The bill is HB 2704 and can be found at


Jeff Wegerson said...

The death penalty is like gun control but not at all like choice. It can be a gimme'. The biggest problem is that it's a wedge and a slippery slope.

Appeal to the 'strict fathers' on this one and before you know it you are filling the jails with drug users and 3rd time shoplifters. Good progressives can keep the reasons straight but potential allies on the Democratic right get confused.

If you are not yet a politician you can have the luxury of not even believing in the death penalty for Gacy and bin Laden. If you can support it for bin Laden then it can be supported for the bigger killer Bush.

Easist and best is to take it off the table entirely.

I guess I come down on the side of opposing this bill. It's another case of Democrats not taking a principled stand but instead angling for the most that can be gotton. Short term gain, long term loss.

n. y. krause said...

"Absolute certainty" does not exist in the real world. This standard would lead to the death penalty never being applied, or, more likely, to some lower standard being adopted de facto. "Beyond a reasonably doubt" seems pretty clear to me. It means, in your words, "the evidence must move 'beyond' that point so a juror may have some doubt in her mind, but less than a reasonable doubt".

Anonymous said...

The "moratorium" has very, very little practical effect right now. There is no agreement by the state's attorneys to avoid seeking death. In fact, I believe there are something like six people who have been sentenced to death since George Ryan emptied Death Row.

Under Ryan, the moratorium was the implied threat that the governor would commute or delay any executions. That process is started with the attorney general, who seeks an execution date from the Supreme Court. Jim Ryan, who was then attorney general, declined to ask for any executions. He said it would be a moot point since GRyan would just delay it anyway (although that would've been pretty tough if JRyan tried to send up some heinous murderer).

But now the moratorium means next to nothing. Lisa Madigan can't ask for death for anyone, because the defendants have at least two or three more trips through the appellate process before they'd be ready.

It will be well into Madigan's and Blagojevich's second or third (if they make it that long) term before this really becomes an issue.

Blagojevich clings to the notion of this moratorium, much like he sticks to his creative ways of finding new money for schools, as a way of avoiding the really big questions that most people want answered. In this case, it's: Do you support the death penalty?

And Rod's answer is, "Yes, but I also support this meaningless moratorium."