Tuesday, March 26, 2013


Both the guilty & the innocent have the greatest of protections
Dudley Sharp

All crimes and their sanctions vary, often a great deal. Rapes, murders and other crimes can have sanctions from probation to life and everything in between.

The Death Penalty: Clearly the Least Arbitrary & Capricious Sanction

There is no sanction which has fewer crimes that qualify for it, than does the death penalty; nor is there any sanction with greater limitations on its application; nor one that has greater consideration in pre trial and at trial; 
nor one with greater care in jury selection; nor one that has two separate trials - one for the verdict, the other for punishment; nor any sanction with more thorough and extensive appeals and more consideration within the executive branch, for commutation, clemency or pardons.

None of this is in dispute.

All of which establishes that the death penalty as the least arbitrary and capricious sanction, well known by any observer of death penalty jurisprudence and its impact.

How Due Process So Protects the Innocent (and the Guilty)

None of this is in question.

1) Pre trial has unmatched requirements and protections, from police investigation of the crime through to trial;

2) Voire dire. No other sanction has this extensive a jury selection process;

3) Trial

The defendant is presumed innocent;

A look at the legal provisions for Texas, the most active death penalty state:

In Texas, the jury has to find against a defendant/murderer with 100% of the votes (48 votes or 12 jurors times 4 separate issue votes) in order to give a death sentence, but only 1 vote (2%) for the defendant/murderer (or rare innocent) to be spared the death penalty (1) - this through two separate sections or trials, one for verdict the other for punishment.

By Texas statute (1), any juror can use anything they want, personally and subjectively, to spare the murderer a death sentence.

By voting opportunity, alone, the defendant/murderer has a 50 times greater chance of avoiding the death penalty than does the prosecution in getting it, based upon those trial opportunities.

Nationally, 2/3 of death penalty eligible trials end in sentences less than death (2 ). No surprise when things are so stacked in favor of the murderer or the rare actually innocent defendants (about 0.4% of the cases) (3).

Many, if not all, states or jurisdictions require two prosecutors and two defense counsels for capital trials, rarely required in other cases.

Is there any other trial, whereby mandatory sentences are not used, where the result, so often, is the maximum sentence, as with the death penalty?

Is there any trial, whereby mandatory sentences are not used, that only two possible sentences are available, either death or life without parole, in this case?

In fact, the death penalty trials have more restrictions than do mandatory minimum cases.

3) Appeals

Nationally, within appeals, death row inmates are twice as likely (42%, 3481 cases) to be removed from death row by means other than execution or other death (21%, 1737) (4).


NOTE  In Virginia, inmates are 4.1 times more likely (76%, 115) to be removed from death row by execution or other death than to be removed by other means (18%, 28) (4).

Why such a disparity? The judges (5).


No other sanctions has such relief for guilty criminals or those rare actual innocents (0.4% of those so sentenced) (3).

Nationally, there is an 11 year average between sentencing and execution,  for the 15% of those murderers sentenced to death (4).

Texas appeals take, on average, 11 years prior to execution, and can go through 4 courts: The Texas Court of Criminal Appeals (a State Supreme Court that only looks at criminal cases), the Federal District Court, the (federal) Fifth Circuit Court of Appeals and the US Supreme Court, for reviews of both direct appeals and appeals based upon the writ.

What do those courts think of Texas?

a) Texas death  penalty cases are overturned 17% of the time. Nationally, absent Texas, 40% of death penalty cases are overturned within appeals (4).

Texas's due process shows a 58% improvement over the national average.

b)  Texas has executed 45% of those sentenced to death.Nationally, absent Texas, that figure is 11% (4).

Texas' appellate record is 310% better than the national average.

Nationally, 37% of death penalty cases are overturned on appeal (4), not because of actual innocents convicted (0.4% of the cases) (3), but because of the extraordinary protections given for both the actual guilty and the actual innocent sent to death row and because anti death penalty judges do all they can to dismantle the death penalty (5).

NOTE: Virginia has executed 72% (109) of those so sentenced and has an overturning rate of only 11% (4)   and executes within 7.1 years, on average (6).

Could all states come close to Texas and Virginia results? Yes, if liberal judges and legislators would get out of the way, allowing for more responsible protocols.

4) Clemency/Commutation/Pardon   -   No sanction has greater consideration within the executive branch, than does the death penalty.


The facts tell us that the death penalty is the least arbitrary and capricious sanction in the US.

Protections for the guilty murderer and the actual innocent accused are unmatched by any other sanction protocol.

Nothing else comes close. Period.

1) Texas Death Penalty Procedures

2) Just Revenge: Costs and Consequences of the Death Penalty, Mark Costanzo, 1997, Worth Publishers

The Innocent Frauds: Standard Anti Death Penalty Strategy

4) Capital Punishment, 2011, Bureau of Justice Statistics, July 2013,  Table 17, Number sentenced to death and number of removals, by jurisdiction and reason for removal, 1973–2011, page 20

5)   Judges Responsible for Grossly Uneven Executions


6) Path to execution swifter, more certain in Va. , FRANK GREEN, Richmond Post-Dispatch, December 4, 2011 Page: A1 Section: News Edition: Final 


Victim's Voices - These are the murder victims