Centerfield

Rick, why shouldn't Peterson get the death penalty? Circumstantial evidence?

I expected this outcome from the time he was found guilty.

My two main problems with the death penalty are that (1) "beyond a reasonable doubt" does not mean "beyond any doubt," and (2) adequacy of representation of defendants. Obviously, Peterson was very well represented, but he was convicted based on circumstantial evidence only. Perhaps we should require juries to go beyond the "beyond a reasonable doubt" standard to impose the death penalty.

"If any convicted murder should not be sentenced to death, it is Scott Peterson." My knee-jerk and somewhat facetious reaction was, "Agreed--but no convicted murder should not be sentenced to death." But really, when one thinks about this case, there don't appear to be any of the mitigating factors that could theoretically persuade me not to impose the death penalty after a conviction for murder.

Hey, Rick's original post either was either enhanced substantially or was not completely displayed upon my original review. My comment was to the original version (at least as I saw it).

Rick;
Are you bored? Or are you, as they say on NPR's "Whadya know", just "itching for a fight".

"Evidence of premeditation is weak. We don't know the circumstances under which he killed her."

"In a case like this, clearly a crime of passion,..."

I don't see the logical connection in those two statements.

However, I'm not a fan of the death penalty. Isn't there evidence that Texas and Florida still lead the U.S. in violent crime despite the frequent use of the death penalty?

Sorry. I've been writing the post, and you guys have already been commenting before I finished it. Okay. I'm finished now.

This is a hot button.

It's my view that the application of the death penalty should not be the default, but rather the exception. Frankly, this is a garden variety murder that has gotten exceptional publicity.

I think the murder of a liquor store clerk might be deterrable with the death penalty. Spousal abuse and murder is irrational almost by definition (except in cases of murder for insurance or inheritance reasons, which was not the case here). Therefore, I do not see it as deterrable.

As I've said before, if life in prison really meant life in prison, I'd be a lot more likely to be against the death penalty. It is the ultimate deterrent against recidivism. But we know that people are occasionally wrongfully convicted. The death penalty doesn't leave much room for correcting such mistakes.

As it is, I still think we should reserve the death penalty for the most heinous of crimes, when guilt is pretty much beyond ALL doubt.

Well..speaking of "itching for a fight"....

It seems to me that Peterson got the death penalty due greatly to the death of the fetus. The prolife crowd has especially been asking for his head.

Which in and of itself is a serious contradiction.

Got to agree with Carla on this one. That sure is happening a lot lately.

Should we put anyone to death? Absolutely not. The death penaly, other than being morally void, is a failed and costly policy that does absolutely nothing to deter crime. Furthermore, if the American public watched the death penalty and took responsibility for it's government's policies than we would not even be having this discussion because corporal punishment wouldn't exist by majority rule.

I don't really understand your life imprisonement argument, Tully. Are you arguing that if Scott Peterson doesn't get put to death, he would eventually be released?

One of the things that I find interesting about the Peterson case is the amount of pubicity -- without that publicity, I'm not sure he would have been charged with the death penalty, much less convicted. Bill Lockyer actually interrupted his wedding reception (!) to hold a press conference to announce that the bodies had been found, and that he would support pursuing the death penalty.

And I think one of the reasons that the case received so much publicity -- besides the affair, and how compelling the victim was -- is that there was just circumstantial evidence. Something like the Lori Hacking (was that her name?) case, or even any number of serial killers, or even the sniper case didn't seem to hold the media's attention.

My problem with all this is that there are many people who have committed more heinous crimes, who won't get the death penalty. And, actually, I"m not even sure we can count on Scott Peterson being executed.

But I agree with the jaded jd, once he was convicted, I don't think that there's a whole lot of evidence that there were mitigating factors. And there were certainly aggravating factors.

Thanks for the response, Rick. This blog causes me to think about this and many other issues in more detail. I appreciate reading all of your opinions.

It's poor form to change a post after it's gone live, especially when the comments complain of a lack of detail that are later supplied in the body of the post rather than a subsequent comment by the poster. I'll take you at your word that it was inadvertent, so I won't belabor the point, but MoveableType seems to have a robust suite of "Draft" and "Preview" options.

On to the merits: First, the jury is the fact-finder. It's the only fact-finder. Whatever evidence there was, it was sufficient to find as a matter of fact that Scott Peterson killed Laci and Conner Peterson beyond a reasonable doubt. No, not to an absolute certainty, but all doubt that remained was, by definition, unreasonable. (Provided, of course, no errors of law were made allowing inadmissible or disallowing admissible evidence to reach the jury--but that's why we have appellate courts.)

Second, it has been a principle of the Anglo-American system of law time out of mind that once the elements of the case are proven as a matter of fact, clemency is in the hands of the sovereign, not in the hands of the court. In the good old days, any and every conviction for murder (and the other ancient felonies) led to a sentence of death unless the sovereign commuted the capital sentence to a lesser one. In the Peterson case, to the limited extent I'm familiar with its facts, the elements both of the capital murder statute and the death sentence were found. Want of neither barbarity nor prior offense is required in California (apparently)--if this is repugnant to the people, the statutes should be changed. There is no evidence that it is.

Third, we don't know that this murder was committed in the heat of passion. In fact, to the contrary, it's more likely that as a matter of fact, it was not committed in the heat of passion. Without a specific familiarity with the California criminal code, I can't do more than speculate about the elements of capital murder there, but I do speculate that in California, as in most places, a finding of actual homicide coupled with premeditation is required to sustain the charge. Therefore, the claim that this death sentence cannot serve a purpose as a general (as opposed to specific) deterrent is based on a false premise. The value of the death penalty as a general deterrent--to whatever extent the value can itself be argued--is that those who deliberate to commit murder should weigh into the cost of doing business the possibility of capital punishment. That's why the element of deliberation is a prerequisite to a finding of capital murder.

So, I return to my original comment before the post was modified: absent a showing of legally cognizable mitigating factors, those convicted of capital murder--based on the elevated burdens of proving that charge and its additional element--normally should be put to death. Based on this jury's finding of fact in this case, I see no reason why that rule should not apply to Scott Peterson.

Generally, if I add to a post, I will place an UPDATE: before it. However, in this case, I added in the heat of writing, after I'd already pressed publish. I did not notice the comments that accumulated as I continued to write the post, nor did I expect any so quickly.

We don't that that this crime was committed in the heat of passion, but we don't know the opposite either, and I have reasonable doubt that it was in fact premeditated. Apparently, the main factor indicating premeditation was that Scott Peterson bought a boat a couple of weeks before the crime, the very boat from which he may have dumped the body. However, in my experience, many people buy boats, and it's not a particularly suspicious act. I think the prosecutor very effectively played with the emotions of the jury to stretch this to premeditated--just as Johnnie Cochran played with the emotions of a jury to get a result that went in a different direction.

With regards to deterrentce, I think specificity is very important. The odds of being executed for murder in general is quite low, so the death penalty has a small deterrent effect. On the other hand, were execution restricted to a small set of murders, but very likely to be applied in those cases--for instance, for the murder of police officers, it might reasonably have a deterrent effect.

Mathew, in many places a "life" sentence doesn't mean "the rest of your natural life until they carry you out in a box and put you in a hole and shovel it in" but can mean parole eligibility and release in less than a decade. Even "life without parole" doesn't necessarily mean what it says. Prisoners can be furloughed, paroled, get work-release, have their sentences reduced, etc. I was not addressing Peterson in particular, but it certainly has been known to happen. The infamous Willie Horton, for example, was serving a life-no-parole sentence when he was given an unsupervised weekend furlough from which (surprise!) he failed to return.

The death penalty, other than being morally void, is a failed and costly policy that does absolutely nothing to deter crime.

Leaving the moral argument aside, I note that not one single executed person has ever risen from the grave to commit another crime. Recidivism after execution of the death penalty is zero. That's definitely a 100% deterrent for those offendors, whereas many people who have received "life no parole" sentences have been released and committed more crimes. Like Willie Horton.

So I mean pretty much what I said. If life-no-parole meant "you don't leave prison, ever, except in a box, dead," I'd be a lot less in favor of the death penalty. Right now my major objection is that we know innocent people are occasionally convicted, and there's no take-backs after executions. Finding exculpatory evidence doesn't help them after they're dead.

I think the most humane application of the death penalty I ever heard of was the sentence imposed on a severely retarded serial killer convicted of seven rape/murders. The judge, knowing that life sentences could mean his eventual (and catastrophic) release, sentenced him to one term of life in prison, and six death penalties, with the sentences to be served consecutively....

Good points all. It seems to me that it's hard to see how it wasn't premeditated. If the motives that were advanced are true, it seems likely he planned the murder. Moreover, although I know little about criminal law, I seem to remember from law school that premeditation needn't require much time. Moreover, while it's true the case is circumstantial, I think you could argue that circumstantial evidence might be more compelling than witness testimony given the vagaries of what witnesses actually see. Another point that in some ways argues for the death penalty here is that reason NOT to impose the death penalty seems to be mainly that Scott Peterson doesn't seem dangerous to the general community; if he was a street thug, everyone would want to execute him. But that gets into some uncomfortable issues about race and class; I'm not saying anyone here thinks that, but one interpretation of not applying the death penalty is that Scott is this innocent looking, upper middle class white boy. I hate the use of race and class as an explanation for everything, but, given that he apparently planned the murder for essentially frivolous reasons, killed not only his wife but a prospective mother, and seems to show no remorse, I find it a little difficult to argue he shouldn't get the death penalty.

On the other hand (and this reflects my general ambivalence about the death penalty), Rick is surely correct that executing Scott is not likely to have a great deterrent effect; the evidence is strong but not overwhelming; and he's not likely to go out and do this again even if he somehow got out. I'm sympathetic to the argument that the death penalty should be reserved only for the most heinous crimes (e.g., Timothy McVeigh, Charles Manson, et. al.). But, of course, why is the murder of many necessarily worse than the murder of one if the intent is the same? The main problem I have with the death penalty is the same one Rick has in general with the death penalty--what if the jury was wrong?

Part of the problem I have with the death penalty is related to the adversarial system in general. I have some experience working on civil litigation and it seems to me that litigation is or becomes much like a game where the point is to WIN not necessarily to bring out the truth. The rules are largely aimed at insuring a fair process for the lawyers rather than really trying to determine what the truth is. For example, evidence is included or excluded often based on arcane rules rather than on how it relates to the truth. Now, it's probably different in criminal trials and, in general, I guess the rules are stacked more in favor of the defendent. But given the fact that you have prosecutors whose careers are based on convicting people and who are probably a little cynical about defendents (after all, they see a lot of nasty people), I don't necessarily have that much confidence in the ability of the system to catch mistakes. That's what makes me uneasy about the death penalty; while I really don't have moral qualms about executing deserving people, any mistakes are irrevocable.

It's poor form to change a post after it's gone live, especially when the comments complain of a lack of detail that are later supplied in the body of the post rather than a subsequent comment by the poster. I'll take you at your word that it was inadvertent, so I won't belabor the point, but MoveableType seems to have a robust suite of "Draft" and "Preview" options.

I think that this comment ("I'll take you at your word that it was inadvertent") to the guy who runs this site is really the definition of "poor form." I complained too about the change, but I never questioned whether it was a legitimate mixup. I think that you should retract that comment.

1) There's the lingering muddling of specific deterrent and general deterrent. In criminal law, a specific deterrent is one that deters the instant defendant from recidivism or progression to worse crimes, and a general deterrent is one that deters others in society from committing acts analogous to those of the instant defendant. Murder penalties rarely have any value as a specific deterrent, because the instant defendant, if convicted, is usually incarcerated or executed. (Though certainly a single semester's clinical externship does not make me an expert in the field.)

2) Elected prosecutors are usually under political pressure to deliver convictions, especially in high profile cases. The adversarial system does in fact discourage the fact-finder from finding the truth, but that phenomenon is more prevalent and more exaggerated on the civil side--and where it plays its role in the criminal side, the majority of instances benefit the defendant.

3) I don't think it's unreasonable to question the effectiveness of the death penalty. I do think it's going a bit far to use one's own "reasonable doubt" to suggest that the jury, who had the benefit of the evidence admitted at trial, who had the benefit of weighing the credibility of that evidence, and, ultimately, whose findings of fact are unimpeachable (again, subject to the caveat regarding errors of law re admission), got it wrong.

This isn't just a pro-capital-punishment argument. I made the same argument when people questioned the jury returning O.J. Simpson's acquittal. The jury is the fact-finder. While everyone else is entitled to an opinion, their opinion doesn't create fact.

4) If you want to restrict the death penalty to serial killers, change the law. As it is, the Peterson case did involve multiple murders. If you want to restrict the death penalty to murderers who are unusually cruel or disgusting, change the law. But either way, the jury is responsible for finding the necessary elements to constitute the charge or sentence. Here, the jury found the elements to constitute the charge and sentence under the law of this state in this case.

5) Finally, I don't know whether California enacted a truth-in-sentencing law like Virginia's to make Tully's concerns about furloughs and the Willie Horton situation moot. I hope so, because I don't think the death penalty should be imposed just because a jury is afraid the defendant will get back on the street.

Todd and Rick,

I didn't mean to suggest that I thought Rick deliberately went back and changed the post. When I said "I'll take you at your word," I meant it as, "I acknowledge that mistakes happen." The draft and preview suggestion wasn't an accusation of "Ah ha! Your explanation can't be genuine!" It was a reminder that there are safer ways of storing a post one might not want others to comment on yet.

Modifying posts after comments have been made is bad form, because the comments can't be edited to address the new information and the original comments can confuse or mislead later visitors who only have the modified version to read. Apparently I crafted that paragraph poorly and it didn't reflect the meaning I intended. Reading it now as Todd points it out, I think adding "intentionally modifying" would have made it worse.

At any rate, to the extent that the paragraph, as written, appears to impute to Rick anything other than legitimate mistake, I apologize. Confiteor tibi quia peccavi nimis opere mea maxima culpa.

Wow. A whole sentence in Latin!

Yes, I very much recommend that California voters "change the law." I used to live in California, and if I recall correctly, it was back in 1986 that I and other voters refused to reappoint Rose Bird to the bench. In the view of the majority of voters, she had abused her discretion by setting aside each and every death penalty sentence.

In particular, I recommend that the law be changed to that the death of a fetus does not count toward the multiple homicide special circumstance required for the death penalty.

I don't think the death penalty should be imposed just because a jury is afraid the defendant will get back on the street.

I agree, JD, and that's the core of my outlook. I like truth in sentencing. It was concerns about "life" sentences meaning as little as seven years with good behavior and parole that resulted in the Kansas sentence of "hard 40." No parole, no time off, no work release, no furloughs, no good behavior reductions. Without a governor's pardon or a reversal on appeal, you serve forty years in prison. And if you "earn" more than one hard 40, the sentences are usually consecutive. It was created because murderers were frequently serving less time under "life" sentences than burglars and low-level drug dealers given "double dimes."

I'm arguing, of course, that an executed death sentence is, in and of itself, the most specific and effective deterrent in preventing recidivism, being a 100% deterrent against future crimes by that defendant. If they're dead they're not committing new crimes. And there are of course those who don't care about deterrence arguments one way or another. They support the "eye for an eye" retribution justification for the death penalty as an end in itself.

Criminal recidivism is a pretty interesting subject all by itself in criminal justice discussions.

I don't think the death penalty should be imposed just because a jury is afraid the defendant will get back on the street.

"Just?" I don't think the death penalty should be imposed just because a jury is concerned with potential release. But neither do I think it unreasonable that this be one of the considerations.

I also agree that a life sentence should mean life with no ifs, ands, or buts, and that capital punishment could reasonably be reserved for instances of no doubt if a life sentence can be made to mean what it says.

Confiteor tibi quia peccavi nimis opere mea maxima culpa

"I confess my grevious fault that I have sinned in word"? (It's been a long time since I attempted anything more than bastard Latin, much less a grammatical sentence.)

This is an outstanding discussion. It isnt a right wing issue or a left wing issue. Its an intelligent discussion about a topical issue by informed people. I commend each and everyone of you for your part in this discussion and the content of it.

With that stated, I do not believe that Peterson deserves the death penalty. I say this as an ardently anti-death penalty Republican. I know, I know, get your jaws off the floor. I dont believe that it acts as a deterrent. I also believe that it is revenge, simply and directly. Saying that it is not about seeing the person who committed the horrible crime killed akin ot the crime victim is like saying that Bill O'Reilly represents the moderate wing of the Democratic party.

Peterson would be best served with life in prison; I dont buy into the arguments that "why should we have to pay for him" or "he will live better than us." The second is ludacris. The first is untrue. As we all know, life in prison costs less than the average cost of a capital trial.

On the point of fetuses not being considered for multiple homicides, I disagree to a point. I believe that a fetus less than twenty-four weeks should not be considered a person. That is a law in a lot of states, not all, but it is a law that makes sense. I also believe that in a case of less than twenty-four weeks, the death should not be counted as a second crime.

Yes, my second Republican faux paus. I am solidly against Lacy and Connor's law. It was political headline snatching of the worst kind. It is also patently riddiculous to label someone six weeks after conception a person. They are not a person. For us to cozy up to the right to lifers and start pandering makes me wretch. It's a bad law. That said, over 24 weeks, the fetus should be considered a person and should be a candidate in formulating multiple homicides.

Summing up, I enjoyed reading this discussion and I hope that there are more like it in the very near future. I believe Peterson should rot someday and remain in jail for no longer than the term of his natural life. With that stated, I do not believe he should be killed. I dont believe in killing for the sake of revenge.

On a personal note, please visit the home of my organization Republicans and Democrats for Positive and Issue Oriented Politics (http://www.rdpiop.com). We have launched our Revolution ’06 campaign, so please feel free to visit, sign up, read stories, from 150 newspapers daily, and correspond on our blog as well.

THere is absolutely no doubt in my mind that Scott Peterson killed his wife. However, I don't believe in the death penalty. It doesn't matter that it's highly hypocritical what matters to me is, "Thou shall not kill." If you think life in prison is a walk in the park and that Scott would be getting off easy, think again. I would rather he have life in prison, no bail.

I would like to know how many people have been sentenced to life without parole in states that are classified (by any number of different interest groups or websites) as "true" LWOP states -- and how many of those people have eventually been released early (and not based on appeal).

In other words, are there states where life without parole actually means life without parole?

The only states I'm sure of that don't have LWP available as a sentencing option are Texas and New Mexico. But--laws change, politicians change, parole boards and prison officials and governors make stupid decisions, and so on. LWP is only as real as the current set of politicians and appointees, and the corrections officials that are supposed to ensure prisoners can't escape. In many states, all LWP sentences are automatically reviewed for commutation after 20 years, and it's not at all uncommon for convicts to get a commutation to Life With Parole, resulting in immediate release. And of course a governor can commute or pardon at any time.

Technically, Willie Horton "escaped" by failing to return from an unsupervised 48-hour furlough. So, what kind of morons actually think a Life-Without-Paroler would willingly report back to prison from a totally unsupervised free weekend?* I mean, what are they going to do when they catch such "runners," extend their no-release-ever sentence? What has the lifer got to lose?

*--(Answer: Governor Michael Dukakis and Lt. Governor John Kerry, who instituted the Prison Furlough program for violent criminals, calling it "rehabilitative" and a "noble experiment.")

Raymond;

With that stated, I do not believe that Peterson deserves the death penalty. I say this as an ardently anti-death penalty Republican.

I too am an anti-death penalty Republican. Likewise, I'm pro-life (but I guess that isn't so odd in the Republican Party). I'm frankly a bit confused by those who are pro-life and pro-death penalty. (But I don't sweat it too much.)

Hmmm. What about those of us who are limited pro-choice and limited pro-death penalty? Does that make me partly pro-life, or partly pro-death?

Damn, but it's tough getting properly labelled when you stand in the middle!