sent 12/7/2022 and amended 5/25/2024
To: Justice Breyer and his assistant, Professor Emma Reilly
As of 5/25/2024, I have amended:
Justice Breyer's Errors in Death Penalty Assessment
Original, below.
Dudley Sharp
From: sharpjfa@aol.com
To: ereilly@law.harvard.edu, sbreyer@law.harvard.edu
Sent: 12/7/2022 9:49:10 AM Central Standard Time
Subject: Sorry, sent a draft - Final Version - Justice Breyer: His Errors in Death Penalty Assessment
Sent: 12/7/2022 9:49:10 AM Central Standard Time
Subject: Sorry, sent a draft - Final Version - Justice Breyer: His Errors in Death Penalty Assessment
Final Version - amended 5/25/2024, in BOLD
To: Justice Stephen Breyer and assistant Emma Reilly
BCC: SCOTUSBlog
RE: Will Jackson be the Supreme Court’s next great opponent of capital punishment? by James Romoseron, SCOTUSBlog, Dec 5, 2022
Subject: Breyer: Not So Great
from Dudley Sharp, independent researcher, death penalty expert, former opponent, 832-439-2113, CV at bottom
Justice Breyer: His Errors in Death Penalty Assessment
Retired US Supreme Court Justice Stephen Breyer has three complaints about the death penalty, which has him questioning the constitutionality of the sanction.
(1) the "innocent"/"exonerated" ("IE") from death row, the high number which shows how poorly our justice system works and puts innocents at risk of execution;
2) as arbitrary, with factors like race, wealth, and geography, in the modern scarcity of cases.
3) exceedingly long delays, by itself, as well as how lengthy appeals time has a negative effect on deterrence.
Breyer's primary problem appears to be that his clerks 1) might have been death penalty opponents and/or 2) he and they forgot thorough discovery . . . known, academically, as research, with fact checking, vetting and critical thinking, of that research, throughout (collectively "RFVC"), as detailed:
Using RFVC, we find
1) The "innocent"/"exonerated" (IE):
a) It has been well known, since about 1998, that the IE has been a major and obvious fraud by death penalty opponents (1), a fraud/error adopted by many legal and other academic scholars (1). This is not in dispute, by those who employ RFVC (1)
These well known "innocent"/"exonerated" frauds are in the 71-83% range (1), depending upon the review (1), which translates into a 0.3-0.5% of proven innocents, discovered and released from death row (1). Justice Scalia found it to be 0.5% (1).
Death penalty opponents, quite simply, redefined both "innocent" and "exonerated", as if they had redefined lie as truth (1) and stuffed a bunch of undeserving cases into those creative definitions. Easy to find with RFVC (1) and not in dispute.
In the modern, death penalty era (1973 forward, under Gregg, 1976), after 50 years of intense investigations, we may have found a 0.4% "factually" innocent death row conviction rate, with all of those being released, very likely, the most accurate rate within guilty findings (99.6%) and appellate relief (100%) . . . correcting Breyer.
There is a reason why, most, experienced observers say that the death penalty has super due process . . . it does.
b) Bryer avoids the primary innocence horrors, which is that, since 1973:
Some 20,000 ADDITIONAL innocents have been murdered by those KNOWN murderers that we have allowed to murder, again - recidivist murderers;
Some 500,000 ADDITIONAL innocents have been murdered by those KNOWN criminals that we have allowed to harm, again - recidivist criminals and;
Likely, 3.5 million ADDITIONAL innocents have been raped, otherwise assaulted, car jacked, kidnapped and/or robbed by those KNOWN criminals that we have allowed to harm again - recidivist criminals.
No "Innocence Projects" for them. Why?
We might have proof of innocents executed, as recently as 1915.
c) The death penalty/executions are a better protector of actual innocents, in four ways, than is a life sentence (1a). Three of those are unchallenged, with the fourth much more likely than not.
2) Arbitrary, with factors like race, wealth, and geography, in the modern scarcity of cases.
Reply
a) The death penalty is the definition of "non-arbitrary" as
1) it represents the fewest cases in criminal law;
2) out of 900,000 murders, since 1973, it has been applied to only 9500 cases. Using 12.5% of murderers being death penalty eligible, that would mean that nearly 12% of death penalty cases receive the death penalty. Are there any other violent crimes that reach that plateau of getting a maximum sentence?;
3) the best detectives and the best prosecutors, in all jurisdictions, are called upon to investigate and prosecute these cases;
4), almost exclusively, with the requirement to have two prosecutors and two defense counsel, per case;
5) all knowledgeable persons know that the death penalty has the greatest of due process protections, at all stages - investigation, pre-trial, trial, within appeals and at the executive branch for clemency, commutation, stay and/or pardon;
6) In most jurisdictions, the 12 member jury will have four issues to find, unanimously, against the defendant/guilty party, in order to give a death sentence - 48-0, must be the vote, for a death sentence. Only one vote, for not guilty and/or for the other three issues, means that the defendant/guilty party will receive a life sentence or will go free, with a not guilty, which means 1 vote overwhelms the 47 vote, with a guilty finding, - 2% prevails over 98% - unchallenged, as the most anti-democratic vote in a democratic republic. 48-0, for the death penalty, is, clearly, as non-arbitrary as it gets. 1 overwhelming 47, for a life sentence, is, clearly, as arbitrary as it gets.
7) In death penalty trials, there are, only, two possible sentences, if found guilty - a death sentence or life without parole. In arguably, our second worst cases, under law, rape, a guilty verdict may result in a sentence of probation to life. Which is arbitrary? Arguably, even probation to life, may not be arbitrary, if one considers all the many factors, that jurors evaluate, when making such decisions.
8) Beyer's complaint, about long stays on death row, is another rejection of the sanction being arbitrary, as the death penalty gets the greatest scrutiny, in appeals.
9) "Guided discretion" is the most important legal force within the Gregg vs Georgia opinion. That is what has made the death penalty the least arbitrary, of all criminal sanctions, as guided discretion would.
None of those are in dispute.
b) Race and arbitrary
"White murderers are twice as likely to be executed as are black murderers (2)."
"From 1977-2012, white death row murderers have been executed at a rate 41% higher than are black death row murderers, 19.3% vs 13.7%, respectively (2)."
"There is no race of the offender / victim effect at either the decision to advance a case to penalty hearing or the decision to sentence a defendant to death given a penalty hearing. (2)."
For the White–Black comparisons, the Black level is 12.7 times greater than the White level for homicide, 15.6 times greater for robbery, 6.7 times greater for rape, and 4.5 times greater for aggravated assault (2).
As robbery/murder and rape/murder are, by far, the most common death penalty eligible murders, the multiples may be even greater.
"From 1977-2012, white death row murderers have been executed at a rate 41% higher than are black death row murderers, 19.3% vs 13.7%, respectively (2)."
"There is no race of the offender / victim effect at either the decision to advance a case to penalty hearing or the decision to sentence a defendant to death given a penalty hearing. (2)."
For the White–Black comparisons, the Black level is 12.7 times greater than the White level for homicide, 15.6 times greater for robbery, 6.7 times greater for rape, and 4.5 times greater for aggravated assault (2).
As robbery/murder and rape/murder are, by far, the most common death penalty eligible murders, the multiples may be even greater.
White victims are the vast majority in death penalty cases because whites are the vast majority of victims in death penalty crimes (2).
c) Wealth and arbitrary
Reply: "99.8% of poor murderers have avoided execution (3)."
"It is, solely, dependent upon one's definitions of "wealthy" and "poor", as to whether wealthy murderers are any more or less likely than 0.2% to be executed, based upon the vast minority of capital murders committed by the rich, as compared to the vast majority committed by the poor. (3)"
In addition, robbery/murders are, by far the most numerous death penalty cases, with the "wealthy" being the least likely to commit those.
Wealthy murderers are able to hire better counsel, but, the above, still prevails. Hardly unconstitutional, as such exists within in all crimes, wherein wealthy criminals exist.
Easy with RFVC.
d) Geography and arbitrary
In 2002, the 75 largest counties had 51% of murders and non-negligent manslaughters, 61% of robberies and 36% of forcible rapes, nationally (4), which is in the ballpark of 60-70% of what we know as capital, death penalty eligible murders, inclusive of robbery/murders, rape/murders, police murders, multiple and serial murders, in death penalty eligible counties.
75 is nearly 2.4% of all counties, both death penalty eligible and not.
In other words, we should expect that 2% of US counties would account for 51% of the executions.
The three primary reasons for executions being limited to so few counties are these: 1) Very few of the counties will have the majority of capital murders, primarily because they will contain, by far, the largest populations (4); 2) Judges are responsible for grossly uneven executions (4) and 3) prosecutors make the choices to seek or reject the death penalty and they will always vary on support or rejection of the death penalty, prosecutorial discretion . . . all of which will affect the number of death sentences and executions, as we would expect.
Easy with RFVC.
3) Exceedingly long delays and deterrence
a) Judges and long delays
Since 1976, Virginia has executed 113 murderers, within 7 years of appeals, on average (4).
Nationally, in the first 5 years of double digit executions, in the 1980s, we executed within 6.6 years, on average (4). Today, we are at 20 years.
It appears, as detailed (4), that other judges are doing all they can to destroy the death penalty (4), by failing to be the responsible managers that they should be (4).
It is astounding that Breyer and all other SCOTUS justices have not held lower judges accountable. They should.
b) Deterrence and appeals time
The vast majority of the findings, within the recent 24 studies finding for death penalty/execution deterrence, is that it is the execution, itself, which causes the deterrent effect (1a, 4).
That is no surprise. It is unlikely that potential murderers pay any attention to lengthy appeals, but make note of actual executions.
In Closing
Breyer is either a dogmatic death penalty opponent, who could care less about the above, or he is irresponsible and failed discovery, research, fact checking vetting and critical thinking, or both.
It really doesn't matter. Does it?
Added 5/25/2024: Yes, it matters very much.
Can the judge forget discovery, fact checking, vetting and critical thinking, accidently?
Of course not.
Justice Breyer, should you be tempted to use anti-death penalty nonsense in the future, here is some more RFVC, at bottom.
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FN
1) The Death Row "Exonerated"/"Innocent" Frauds
1a) The Death Penalty: Saving More Innocent Lives
http://prodpinnc.blogspot.com/2013/10/the-death-penalty-do-innocents-matter.html
71-83% Error Rate in Death Row "Innocent" Claims, Well Known Since 2000
1a) The Death Penalty: Saving More Innocent Lives
http://prodpinnc.blogspot.com/2013/10/the-death-penalty-do-innocents-matter.html
and
Deterrence, Death Penalties & Executions
https://prodpinnc.blogspot.com/2019/04/deterrence-death-penalties-executions.html
https://prodpinnc.blogspot.com/2019/04/deterrence-death-penalties-executions.html
2) RACE & THE DEATH PENALTY: A REBUTTAL TO THE RACISM CLAIMS
3) Is There Class Disparity with Executions?
4) Geography and death sentences, reviewed, herein
Judges Responsible For Grossly Uneven Executions
and
Media Disaster: Death Penalty: Courts, states put death penalty on life support
Judges as Jackasses
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600+ pro death penalty quotes from murder victim's families &
3300+ from some of the greatest thinkers in history
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Victim Services
Research, w/sources, w/fact checking/vetting & critical thinking, as required of anyone within a public policy debate and which rebut all anti-death penalty claims.
Most will realize that the media has been using only anti-death penalty claims and , then, failed to fact check, vet, not use critical thinking, with that research, while avoiding all pro-death penalty research and experts. How do I know most will realize this? Because they wouldn't have seen any of this, prior:
1) The Death Penalty: Justice & Saving More Innocents
and
Students, Academics & Journalists: Death Penalty Research
(7 pro death penalty experts included)
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Partial CV
