כּנור דוד

Kinnor David - "a most attractive blog".

Monday, October 31, 2005

Post Number 100 - A Reply to Chip

Chip said in relation to my last post that "this is crazy", and said that the death penalty in the US is only applied for murder.

For the avoidance of doubt, I disagree with the Singaporen law, and to the extent necessary, apologise for what may seem, especially to American ears, like undue flippancy in the said post. However, I would like to make a few comments, if only to set a few things straight. Sorry, sometimes I can't help doing that!

Death Penalty for Rape and Other Offences in the US

Historically, the US has executed people for everything from sodomy to horse-thieving. In modern times, this has changed. During the period 1930-1967 (the latter being, coincidentally the last year that an Australian government, that of Victoria, actually carried out the death penalty) 455 prisoners (12% of the total executions) - ninety percent of them African American were executed for rape; 70 prisoners were executed for other offences. During the same period, the U.S. Army (including the Air Force) executed 160 persons, including 106 executions for murder (including 21 involving rape), 53 for rape, and one for desertion.

In 1977, the Supreme Court declared in Coker v. Georgia, 433 U.S. 584 (1977) that applying the death penalty in rape cases was unconstitutional because the sentence was disproportionate to the crime. Coker resulted in the removal of twenty inmates - three Caucasians and 17 African Americans - awaiting execution on rape convictions from death rows around the country. That is, in 1977, there were 20 people on death row for committing the crime of rape; African Americans from south of the Mason-Dixon, were disproportionately likely to end up ridin' the lightnin' for rape.

Felony Murder, Poisoning, and Drug Trafficking

In addition to murder, there is also what has been called "felony murder", that is, broadly speaking, unintentional killing in the course of the commission of a crime of violence; I'm no criminal lawyer, nor do I know a great deal about the criminal law of the various US States, but if I am robbing a Texas convenience store, and I drop my gun, and it discharges, thus killing Apu Nahasapeemapetilon, then what might ordinarily be an accidental death, or an act of manslaughter, becomes a Capital Murder that could have me cooling my heels for 10-20 years on death row, with nothing to look forward to but a nasty injection at the end.

No doubt, if I knowingly sell you booze laced with arsenic, which, if used as the manufacturer (of the booze) intends, I am clearly guilty of murder if and when you die.

Conversely, consider my selling you heroin, knowing that it is of such uncommon purity, that it is therefore almost inevitably going to kill you by overdose when you use it in the intended manner. Of course, I know what you intend to do with it. Nobody's that stupid. What if death by overdose, or by poisoning by rat-poison (arsenic again!) with which the heroin has been "cut" is not "almost inevitable", but only "substantially probable" or merely "likely"?

The Singaporean death penalty only applies where intended supply to another is proven (or the rebuttable presumption of intended supply is not rebutted). That is, when caught with more than "x" grammes, the law presumes that you are intending to supply, and you have to prove that it's for personal use only; that's a common enough provision in anti-drug statutes. The Singaporean (and Malaysian, for Singapore is not alone in this) laws may be "crazy". I happen to believe that they are - even though there is some suggestion that they have a deterrent effect. Indeed, some criminologists have argued that the less likely clemency, the stronger the deterrant effect. However, the moral distinctions are not always as clear as they at first seem. Is the Texan convenience-store thief who accidentally shoots Apu any more morally culpable than the trafficker who flogs poison to addicts for money?

The point is, I suppose, that drug trafficking is not a "victimless crime", and by selling you drugs, I can kill you just as easily as by putting a bullet in your head. A reckless, or merely negligent thief can end up on death row, and yet, in many countries a trafficker with as guilty, or guiltier mens rea can get off comparitively lightly.

It's not an easy moral or policy question, is it?

Incidentally, the point that Latif raised (but articulated imperfectly) is that the arguments for clemency raised by some activists highlight all the race / nationality based capriciousness and inconsistencies that American anti-death penalty activists have raised for years. But he does so to enforce, rather than oppose the penalty. Ironic, eh?

Your comments are welcomed.


Blogger Chip said...

"Is the Texan convenience-store thief who accidentally shoots Apu any more morally culpable than the trafficker who flogs poison to addicts for money?"

Poison being an operative word?

'Mere' drug pushing does not involve intent to kill. Firing a weapon in the course of a robbery is different to me.

10:01 AM  
Blogger David said...

True, but the point of "felony murder", is that there is no need for specific intent to kill. One can kill accidentally in the course of of a robbery and end up on death row.

You can end up on death row without even knowing the firearm was loaded, without intending to use it except to incite fear.

You can end up on death row, even if you believe you are only using a replica, and having no intent whatsoever to harm anyone.

A drug pusher can know that death is the likely consequence of his action and simply not care.

And that is the difficulty.

10:21 AM  
Blogger David said...

And what if Apu is so scared when he sees your replica firearm that he slips and falls, later dying of cereberal haemmorage?

You have technically caused his death in the cause of a violent felony, without the slightest intent of harming a hair on his head?

In some states, you'd want a good lawyer.

10:25 AM  
Blogger David said...

As another example, the last man hanged in Australia, Ronald Ryan, was accused of killing a prison guard during an escape from custody.

Now, my recollection is this (and I may be wrong):

When doubts were raised as to whether he actually fired the fatal shot, after his conviction, the Crown simply said that "it doesn't matter, he was engaged in a felony, and was responsible for any death that directly resulted from the escape, even if the fatal shot was fired by another prison guard.

I think that's still the law in most Common Law jurisdictions.

Anyway, by way of additional anectdote, the Premier (Sir Henry Bolte) of the time was facing an election and was responsible for the following:

1. Quote: "A Hanging is worth 10% of the vote" (ultimately proven true in this instance);

2. Telling various newspaper editors that the hanging would proceed and that that would show that the government, not the press, was running Victoria

3. When asked what he was doing at the moment of the hanging: "One of the three S's, I suppose"; "What does that mean, sir?"; "Oh you know, a shave, a shower or a shit!"

Sounds almost like a Southern Governor, with a Knighthood, eh?

10:43 AM  
Blogger Chip said...

Felony murder doctrine death penalty cases? Oh no...


Skip to the last paragraph in the entire opinion.

"Because the Florida Supreme Court affirmed the death penalty in this case in the absence of proof that Enmund killed or attempted to kill, and regardless of whether Enmund intended or contemplated that life would be taken, we reverse the judgment upholding the death penalty and remand for further proceedings not inconsistent with this opinion."

2:51 PM  
Blogger David said...

I stand corrected. As I said, I'm no expert on US criminal law!

In Australia, there were 2 hangings in 1964 (Valance's and one in September 1964 [I think] in WA; both were brutal, depraved murders. Few wept for either.

One of the reasons that Ryan's hanging caused such a stink (and rightfully so) was that it appeared more related to a cojones measuring contest between the Crown, and, on the other side the media, and some of the churches on the other.

The Crown won, and won the quest for public opinion, at the time but, although some states continued passing death sentances until 1984, no government leader would advise the Crown to carry them out.

4:25 PM  
Blogger Chip said...

I wasn't trying to correct you. I hoped the general rule took out those weird felony murder facts.

The jury and judge must weigh aggrivating factors against mitigating circumstances, after a verdict in a murder, with intent.

1:04 AM  
Blogger David said...

Which is an American post-Furman innovation.

Here, all murders carried a mandatory death sentence, and the decision fell to the Executive Council - essentially the vice-regal Governor acting on the advice of the Cabinet - whether to commute Death to Life in Prison.

In practice, that meant that some Juries "recommended mercy". Some Judges wrote reports to the cabinet which, essentially did the same, and some Juries convicted murderers of manslaughter because they wanted to avoid the risk of an execution.

If you're interested, the Aussie movie "Black and White" is interesting viewing; it's set in the late fiftes, but I still recognise some of the characters and places. I know a son of one of the guys portrayed in it. I'm still in my twenties. Small towns! It's Aussie semi-art-house, but it's all about politics, murder, race relations, the legal system and the like. I don't know if you will find it in any Florida DVD stores, but it's worth hiring if you can; with the proviso that the treatment of Sir Roderick Chamberlain, the Crown Solicitor, was unduly harsh.

One of the first cases we learnt about at Law School (on the topic or precedent and legal reasoning) was Dugan. Dugan was sentenced to death, but his sentence was commuted to life in prison. He then wanted to sue the Department of Corrections for some real or imagined mistreatment.

The relevant department responded that he had no standing to sue, because he was "civilly dead". That is, he was not a person for the purposes of the law; it was as good as if the hangman had pulled the lever.

At the time, they were undoubtably right.

The purpose of the exercise was to analyise the ways in which 7 High Court judges either upheld, or weaved around, an ancient, long standing common law doctrine.

12:02 PM  
Blogger David said...

Post script...

Oh, and my dad, who says he knew Sir Thomas Playford (and probably did), says that although the man was a straight-talking orchardist, his portrayal in Black and White made the man seem "rougher" than he really was; notwithstanding that, he was a very shrewd old bugger and in many ways a visionary (Playford, not dad). LInk to the review is here :http://www.imdb.com/title/tt0299547/ I have liberal friends who still argue that the real problem was that the Police "helped along" a perfectly decent case.

12:29 PM  

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