Introduction

            What they lack in popular support, death penalty opponents more than make up in tenacity, skill, passion – and success. When a 36-year 707,000 homicide holocaust results in 1,136 executions, capital punishment has been all but abolished, with a token few murderers served up to fool the public.

            The United States Supreme Court and other courts have played a major role in this evisceration. A critical prerequisite has been the suppression of information. Death penalty opponents in the media and on the Supreme Court have done all they could to hide from the public facts about murders, murderers and murder victims; and about how, in turn, these facts have been addressed by the courts.

            While proclaiming their moral superiority, dishonesty, especially half-truth, is central to those who deem themselves merciful by bestowing mercy upon the merciless. Focusing upon the alleged plight of brutal murderers, they maximally and callously withhold compassion, information and even thought about the massive suffering of innocent law-abiding victims. Yet, the public still supports the death penalty with little understanding of the true reasons why it is so rarely enforced.

            If the public were well informed of case facts and arrogantly imposed disingenuous legal absurdities, abolition would fail. What follows is a partial review of what the public is not, but should be, told.

I

Don’t Mention the Crime or the Victim in Polite Company

            A footnote in little-noticed Uttecht v. Brown[1] clearly unmasks the basic abolitionist attitude and stratagem of suppressing public knowledge of what murderers do, i.e., why exactly we have a death penalty. Justice John Paul Stevens objected to the Court’s opening “graphic description of the underlying facts of [Brown’s] crime, perhaps in an attempt to startle the reader or muster moral support for its decision. ...”[2]

The whole “graphic description” is this: “Cal Coburn Brown robbed, raped, tortured, and murdered one woman in Washington. Two days later, he robbed, raped, tortured, and attempted to murder a second woman in California.”[3] Far from being “graphic,” this was virtually antiseptic. If Stevens opposes revealing so little, he opposes disclosing any crime facts at all. This epitomizes the anti-death penalty movement. In a 1996 documentary,[4] Sister Helen Prejean responded to criticism that she should have talked to the surviving victim of a convicted murderer: “I didn't feel it was my place or my role … to know the mean, vicious Robert Willie.”[5] Frontline reported: “The families of victims and others say she pays too much attention to the criminals and too little to their crimes.”[6] 

            This is understandable. Heeding the brutalities of those championed by the likes of Prejean and Stevens would undermine their claim to a moral superiority entitling them to impose their unpopular values.  If Stevens accuses the Uttecht majority of seeking to “startle the reader” or “muster moral support,” he must realize facts must be suppressed if he is to have any moral support outside the abolitionist community.

            This is made clear by the really “startling,” and “graphic” facts not mentioned by the Uttecht majority – or the media.  Linda Greenhouse disclosed even less than the Court: “Brown…was charged with the murder of a woman whose car he had hijacked. He was convicted in 1991….”[7] Compare her “facts” with the Washington Supreme Court’s account:[8]         

            [Brown]…forced his way into [Holly Washa’s] automobile, stuck a knife in her face, and grabbed her by the hair. He demanded that she “drive or die,”and rummage[ed] through her purse for money… [He] tied [her] hands behind her back [and took her] to his room … demanded that she remove all her clothing, after which he tied her to the bed … engaged in sexual intercourse with [her] for about two hours, … decided it was time “to have a little control, . . .make her a little more scared of me ….” He then tied her in a face up, spread eagle position, with her hands behind her back and her mouth gagged, and whipped her “maybe half a dozen times . . . .” … again forced her to undress and tied her to the bed ... face down, spread eagle … hands tied behind her back. He then had sexual intercourse with her again. … The next day [he] forced [her] to drive him to her apartment where he hoped to find checks … he could forge. … [He] became irritated. … again tied [her] to the bed face down … spread eagle … hands handcuffed behind her back and her mouth gagged.…He penetrated  her vaginally and anally with an aftershave lotion bottle. He shaved her pubic hair and held a hot hair dryer close to her vagina, breasts and stomach. He also shocked her by using an electric extension cord with the end cut off. He described these acts as "torture" and acknowledged that the electric shock was particularly painful. … He forced Ms. Washa into the trunk of her … automobile … and cut her throat with "three swipes" and stabbed her several times in the chest and abdominal areas. … [He said] he killed Ms. Washa because he did not want to leave any witnesses alive. ….

… an autopsy… concluded her death was caused by an extensive incised wound to her neck and strangulation by a ligature with a very rigid knot. … Her face was severely bruised. Both the inside and outside of her vaginal area were bruised. There was also bruising around her anus. The vaginal and anal injuries indicated forcible penetration with a hard object … Her nipples showed abrasions and … bruising consistent with being whipped by a belt or cord. Similar bruising was found on her inner thigh, which also indicated whipping. Her feet and ankles were covered with bruises consistent with having been restrained. Her chest and abdomen had multiple stab and slicing wounds. An "irregular blemish-like area of red drying" on her inner thigh indicated burning. … [Emphasis added.]

 

Even this description does not fully portray the magnitude of what prompted the Ninth Circuit majority’s parody of understatement, that Brown was “not a nice man.” [9] The full Washington Supreme Court opinion also details the rape, torture and attempted murder of his second victim.[10]

Abolitionists have campaigned to convince the public that numerous innocents have been executed, a contention vigorously debated.[11] Be that as it may, the Supreme Court routinely seeks and finds new ways to rescue murderers without overturning their convictions as opposed to their sentences.[12] For example, Brown “had confessed to these [Washington] crimes and pleaded guilty to the California offenses.”[13]

LitgationWar to Impose Unpopular Moral Values. How could Brown’s case still continue when his unspeakable sadism occurred in 1991 and the decision quoted was in 1997? There has been a 40-year “all-out strategy of litigation against the death penalty.”[14] Justice Scalia wrote of the “heavily outnumbered opponents of capital punishment [who] have successfully opened … front[s] in their guerilla war to make this unquestionably constitutional sentence a practical impossibility.”[15] Legitimate claims of innocence do not drag out cases for up to 36 years.[16] Concealment by pretenders to moral superiority is essential. The public must not be “startled” by the true nature of the murderers and their murders.

In his Uttecht footnote, Justice Stevens quotes a Justice Brennan dissent: “However heinous Witt’s crime, the majority’s vivid portrait of its gruesome details has no bearing on the issue before us. It is not for this Court to decide whether Witt deserves to die. That decision must first be made by a jury .…”[17] This is disingenuous. For decades, Brennan asserted precisely that it was his court’s prerogative to say which murderers deserved to die; his view: none.[18] He voted to overturn every death sentence before him, plainly based on his own moral values, rejected by both the Constitution’s framers and a substantial majority his contemporaries.[19] He declared:

This Court inescapably has the duty, as the ultimate arbiter of … our Constitution, to say whether … "moral concepts" require us to…declare…the punishment of death … is no longer morally tolerable… the State… must treat its citizens in a manner consistent with their intrinsic worth as human beings – a punishment must not … be degrading to human dignity. A judicial determination whether the punishment of death comports with human dignity is … not only permitted, but compelled …..[20]  

 

Brennan thus claimed power to impose his morality in the name of a Constitution that explicitly permits the death penalty (e.g., deprivation of life permitted with due process – two clauses; indictment for capital crime by grand jury permitted; only double jeopardy of life barred).[21]

“At bottom, the [death penalty] battle has been waged on moral grounds,” wrote Brennan.[22] How can such a battle be fairly fought without disclosing the facts to which moral values are going to be applied? This “battle” is not about pickpockets but the most depraved. Do the latter have “intrinsic worth as human beings” and “human dignity” but not their victims? For abolitionists, it is morally mandatory to dehumanize victims, rendering them faceless and worthless.

 Throw the Victims Out of Court.  In 1987, the Brennan stance reached a high point in Booth v. Maryland,[23] when the Supreme Court ruled victim impact statements (VIS) unconstitutional. The Court held that, although any murderer’s friends or family members could testify about how wonderful he is and/or about all his suffering and travails, the victims’ friends and families were to have the courthouse doors slammed in their faces. Just two years after Brennan insincerely wrote that death is a jury decision, the jury was barred from learning all facts pertinent to what he said was a moral assessment:[24]         

        While the full range of foreseeable consequences of a defendant's actions may be relevant in other criminal and civil contexts, … in … capital sentencing. …the jury is required to focus on the defendant as a "uniquely individual human bein[g]." … The focus of a VIS, however, is not on the defendant, but on the … the victim and the effect on his family. … This … could divert the jury's attention away from the defendant's background and record, and the circumstances of the crime…

 

Justice White, in dissent, made clear why this was not required:

            The affront to humanity … is not limited to … victims; a … community is… injured, and … the victim's family suffers shock and grief …difficult even to imagine. …The Court's …[premise is] the harm… a [brutal] murderer causes a victim's family does not …reflect on his blameworthiness …Many if not most jurors, however, will look less favorably on a capital defendant when they appreciate the full extent of the harm he caused …[S]omeone who drove his car recklessly through a stoplight and unintentionally killed a pedestrian merits significantly more punishment than someone who drove his car recklessly through the same stoplight …when no pedestrian was there to be hit…if punishment can be enhanced in noncapital cases on the basis of the harm caused,... I fail to see why [this] is unconstitutional in death cases… just as the murderer should be considered as an individual, so too the victim is [a unique] individual ….[25]   

Four years after Booth, it was reversed by Payne v. Tennessee,[26] over Justice Stevens’ vehement dissent.[27] But despite this small victory for victims, for years and for reasons unrelated to guilt or innocence, and contrary to Brennan’s insincere claim that the “decision must first be made by a jury,” the Supreme Court, repeatedly asserting its moral superiority and a right to impose it,[28] has increasingly usurped jury powers and the people’s democratic right to decide the moral criteria for the death penalty.

Charging his colleagues with having appropriated a right to impose their own personal moral value judgments upon the death penalty, Justice Scalia has lamented: “The arrogance of this assumption of power takes one’s breath away.” [29] He has asked: “By what con­ceivable warrant can nine lawyers presume to be the authoritative conscience of the Nation?”[30] (Obviously, “nine” is really “five.”) Finally, Scalia urges “the judge who believes the death penalty to be immoral [to resign] rather than simply ignoring duly enacted constitutional laws and sabotaging the death penalty.”[31]

If the saboteurs could not abolish capital punishment outright, they have done the next best thing by making it very costly, almost impossible to enforce, and ordering the citizenry not even to dare apply it to certain crimes and murderers at all.[32]  Having imposed their own moral values with no more than “raw judicial power,”[33] Justice Stevens and his anti-death penalty collaborators (Ginsburg, Breyer, Souter) are in no position to chide other justices for “attempt[ing] to...muster moral support” by revealing minimal facts.

 How Can Anyone Under 18 Be Expected to Know Murder Is Wrong? In vitiating jury death sentences, five justices have often relied upon their own value judgments of “moral culpability” or “moral reprehensibility”. Thus, in Roper v. Simmons,[34] a bare majority reversed the death sentence of Christopher Simmons. Immaturity means that teenagers’ “irresponsible conduct is not as morally reprehensible as that of an adult.”[35] They added:  “Once the diminished [moral] culpability of juveniles is recognized … penological justifications for the death penalty apply to them with lesser force than to adults.”[36]

Justice Kennedy, for the court, did give some details of the murder. In sum, Simmons meticulously planned it, with the fully rational belief that his youth would spare him serious punishment. He boasted about his “accomplishment,” specifically indicating further full awareness and rational calculation by saying he killed his victim because “the bitch seen my face.” Simmons had broken into Shirley Crook’s home, tied her up, wrapped her face in duct tape, drove to and threw her off a bridge.     

But Kennedy omitted two key points. Simmons was not just seventeen, he was seventeen and five months, only seven months shy of eighteen. Also, when he threw Crook into the water, she was not only alive but conscious.[37] Only Justice O’Connor, in dissent, fully captured Simmons’ cold-blooded, rationally premeditated barbarity: “One can scarcely imagine the terror that this woman must have suffered throughout the ordeal leading to her death.”[38] O’Connor said 17-year-old murderers can be “sufficiently mature and act with sufficient depravity to warrant the death penalty” and “can act with sufficient moral culpability, and can be sufficiently deterred by the threat of execution, that capital punishment may be warranted in an appropriate case.”[39] Moreover, one would think it a gross insult to young people to say they cannot be expected to know that murder is wrong and brutal murder is even worse. This does not require the wisdom of the Seven Sages. Immaturity is one thing; calculated depravity is something else.[40]

Justice O’Connor has not been consistent regarding “moral culpability.”  While finding death could be “morally proportionate” for the deeds of 17-year-old Simmons, she claimed “the Court has a constitutional obligation to judge [this] for itself….”[41] Hence, she opposed 19-year-old Dorsie Lee Johnson’s death sentence precisely because of his youth. Although his troubled youth was stressed to the jury,[42] O’Connor was not satisfied; in her view, the jury could or did not give youth full mitigating weight since it was not specifically instructed that youth could diminish “moral culpability.” She opined:

It is possible that the jury thought Johnson might outgrow his temper and violent behavior as he matured, but it is more likely that the jury considered the pattern of escalating violence to be an indication that Johnson would become even more dangerous as he grew older… there is a reasonable likelihood [Johnson’s youth] was an aggravating factor…. the Constitution … require[s] an additional instruction … [to allow] a jury to give effect to the most relevant mitigating aspect of youth: its relation to a defendant's "culpability for the crime he committed." … what happens in the future is unrelated to the culpability of the defendant at the time he committed the crime. A jury could conclude that a young person acted "deliberately," … and that he will be dangerous in the future… yet still believe that he was less culpable because of his youth than an adult.[43] [Emphasis added.]

                                             

In an ironic role reversal, it was Justice Kennedy, who, accepting the trial judge’s commonsense reasoning,  pointed out for the 5-4 Johnson majority that upheld the death sentence: "[i]f a juror believed that [Johnson's] violent actions were a result of his youth, that same juror would naturally believe that [Johnson] would cease to behave violently as he grew older.”[44]

This shows that abolitionist justices can successfully thwart public values if most people are unaware of how bizarre their values can be. So O’Connor, unembarrassed, can aver future dangerousness and moral culpability are separable, and we must guard against jurors finding a young murderer posed future danger, without being instructed they could simultaneously find him less morally culpable than an adult. Because he was dangerous but less culpable, he should be kept alive and given another chance to murder.[45]

 Don’t Execute a Young Murderer Who “Only” Preys on Old Ladies. To top that, O’Connor helped reverse a death sentence for another young Simmons, for failure of the trial judge to advise the jury that life without parole was the only available alternative to death. O’Connor “reasoned”:

[Simmons] physically and sexually assaulted three elderly women--one of them his own grandmother--before killing a fourth… the State sought to show [he] is a vicious predator who would pose a continuing threat to the community … [Simmons’]  response was that he only preyed on elderly women, a class of victims he would not encounter behind bars …This argument stood a chance of succeeding, if at all, only if the jury were convinced that petitioner would stay in prison … the trial court precluded the jury from learning that [Simmons] would never be released from prison.[46]

 

This is significant in several respects. First, although Justice O’Connor thought that Simmons should have had a “chance of succeeding” with the argument that he would not be dangerous in prison because he “only preyed on elderly women,” it is highly doubtful that, even if true, most Americans would find this in accord with their moral values – if only the media had well publicized the point.[47]

Second, O’Connor’s position is premised on the ivory tower assumption that life without parole can be guaranteed,[48] which is extremely improbable for reasons including executive commutation or pardon,[49]  parole,[50] endless appeals having nothing to do with innocence,[51] escape[52] or, lacking “elderly women,” turning to prison guards,[53] fellow inmates[54] or even past and potential witnesses outside prison.[55]

Third, O’Connor was fully aware of the last point. In 1987, she wrote the opinion for the court in Tison v. Arizona, described infra 52, a case involving a prison escape by convicted murderers who proceeded to murder again, one of whom had committed murder during a prior escape. Also in 1987, she voted to spare an inmate from mandatory death for murdering another inmate while serving life without parole for a prior murder. Infra 42. Did O’Connor really believe there could be a guarantee that a prisoner would stay in prison or commit no new violent acts even in prison?[56]

Fourth, it follows that to require a trial judge to instruct a jury that a defendant would “stay in prison” and “never be released” is a Supreme Court mandate to mislead the jury.[57] Fifth, accuracy requires acknowledgment that Chief Justice Rehnquist and Justice Kennedy joined O’Connor’s Simmons opinion.[58] Sixth, again, Simmons had confessed; guilt vs. innocence was not an issue. Finally, O’Connor did not mention the age of Simmons’ murder victim, 79, or other key facts.[59] Again and again, dissents must reveal facts ignored by bare majorities in saving clearly guilty murderers.[60] 

   He Didn’t Mean It. In Enmund v. Florida, [61] a 5-4 majority came to the rescue of Earl Enmund, driver of the getaway car in the murder of an elderly couple (ages 86 and 74) during a robbery.[62] Justice White’s majority opinion grafted on to the constitution the value judgment that the death penalty could not be imposed for felony murder on the ground that Enmund “somehow participated in a robbery in the course of which a murder was committed” but “did not take life, attempt to take it, or intend to take life”.[63] It took Justice O’Connor, in dissent, to point out the “disingenuous” meaning of “somehow participated”: not only did Enmund help the actual murderers escape, but “[m]ost notably… [he clearly] was an accomplice to the capital felony [which, he aided and abetted] and … his participation had not been ‘relatively minor,’ but had been major in that he "planned the capital felony and actively participated in an attempt to avoid detection …."[64]

            In Parker v. Dugger,[65] another 5-4 decision, Justices White and O’Connor switched good cop-bad cop roles. In saving murderer Robert Parker, Justice O’Connor noted “none of Parker's accomplices received a death sentence for the Sheppard murder.”[66] But she ignored critical facts revealed by Justice White: “On Parker's orders, William Long shot [Nancy] Sheppard in the head.” Parker then “screamed ‘shoot her again, shoot her again.’” Also, “Parker had threatened to kill Long if he did not shoot Sheppard,… a threat driven home by the fact that Parker had previously been convicted and imprisoned for shooting Long.” Finally, “Parker himself slit Sheppard’s throat to insure that the job was done….‘and took her ring and necklace,’”[67]   

 “Retardation” as a Free Pass. In Atkins v. Virginia, dissenting Justice Scalia started out: “I begin with a brief restatement of facts that are abridged by the Court but important to understanding this case.”[68] This included not only an account of the brutal murder for which Atkins was sentenced to death, but also that he had “16 prior felony convictions for robbery, attempted robbery, abduction, use of a firearm, and maiming…The victims of these offenses provided graphic depictions of [his] violent tendencies.”[69] But the Court majority set aside the death sentence on the new ground that it was unconstitutional to execute the mentally retarded. Of course, retardation could easily be feigned, Justice Scalia complained.

Johnny Paul Penry exemplifies the use of purported retardation as a pretext to keep brutal murderers alive. It was uncontested that, in 1979, he tortured, raped and murdered Pamela Carpenter.  Thanks to clever judicial erosion of capital punishment, Texas surrendered with his fourth trial imminent.[70] Compounding the rape-murder, Carpenter’s family suffered 28 years’unspeakable agony due to Supreme Court 1989[71] and 2001[72] death sentence reversals alleging possible insufficient weight given Penry’s alleged retardation. (This was before Atkins transmogrified retardation from a mitigating factor to an absolute death penalty bar.)

The Court extensively detailed expert testimony about Penry’s “retardation” and “organic brain damage.”[73]  Remarkably – or perhaps predictably – the Court had no room for the most important facts. In 1985, the Texas Court of Criminal Appeals found that Penry

forced his way into [Carpenter’s] house,...and held his … knife to her throat. After … [Penry] hit [her], knocked her to the floor, and shoved her against a stove causing her face to bleed, [she] stabbed [Penry] with some scissors.  [He] knocked the scissors out of [her] hands. He dragged her into the bedroom. After kicking and hitting her repeatedly and "stomping" her once, [Penry] had intercourse with [Carpenter] for thirty minutes. [He] next …stabbed her in the chest…
         [Penry confessed]: "I … f    ed her … and then … picked [the scissors] up. … I sat down on her stomach and I told her that I loved her and hated to kill her but I had to so she wouldn't squeal on me. … I thought about the Chick [deceased] a lot. … I also wanted … [her] money. … I knew that if I … raped her that I would have to kill her because she would tell who I was to the police and I didn't want to go back to the pen."… "[74] 

  

In addition to his undisputed brutal terror, what stands out is that Penry made a premeditated, calculated, well-reasoned, intentional decision (1) to rape Carpenter in the first place and (2) to murder her to avoid being identified and sent “back to the pen.” Judicial abolitionists and an army of experts can rant about retardation, but all that shows is how far from reality, common sense and integrity they have departed. Penry clearly and fully appreciated his crime.[75] If that is “retardation,” it is a sham mitigating factor.

For decades, advocates, to justify placing group homes in residential areas, have argued the retarded are not dangerous and “were just regular people who had some difficulties and needed some assistance.”[76] Even Justice Stevens conceded: “There is no evidence that they are more likely to engage in criminal conduct than others….”[77]

Which is it? Does being retarded make one less culpable because less able to understand what is wrong – and hence more of a threat to the community – or not? Retarded people do not plan rape and rationally motivated murder. It is subterfuge to use retardation as pretext to subvert the death penalty. Its transparently bogus use to stretch out Penry’s case for 28 years until Texas gave up was all but admitted by his protectors in Atkins:  “there is abundant evidence that [the retarded] often act on impulse rather than pursuant to a premeditated plan….”[78] Penry’s crime was premeditated, he himself said.

“Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members,” protested Justice Scalia in Atkins.[79] Could it possibly be that three juries rejected these justices’ “personal views” and voted for Penry’s execution because they knew the facts? Could that explain resistance to Atkins?[80]

            Sanitizing a Grown Man Ripping an 8-Year-Old Girl’s Insides.  Six years after Atkins and three after Roper, a morally imperious Supreme Court 5-4 majority struck again, finding unconstitutional the death penalty for “child rape.”[81]  Yet again asserting superiority of its “own independent judgment,”[82] it decreed a 300-pound stepfather[83] did not deserve execution for brutally raping an 8-year-old girl.[84]

            This case is a striking illustration of court fact suppression despite giving this limited graphic detail:

                  An expert in pediatric forensic medicine testified that L. H.'s injuries were the most severe he had seen from a sexual assault in his four years of practice. A laceration to the left wall of the vagina had separated her cervix from the back of her vagina, causing her rectum to protrude into the vaginal structure. Her entire perineum was torn from the posterior fourchette to the anus.The injuries required emergency surgery.[85]     

                                 

Despite these 73 words, 40 devoted to the actual injuries,[86] much was omitted by the court, and the media concealed the rest. First, the court’s words were not as plain as the district attorney’s.[87] Second, the court conceded the rapist’s crime “cannot be recounted in these pages in a way sufficient to capture in full the hurt and horror inflicted on his victim or to convey the revulsion society, and the jury that represents it, sought to express by sentencing petitioner to death.”[88] Third, accordingly, the court elided critical details, e.g.: rapist’s 300-pound weight; “as a result of pain, the victim had to be fed gallons of stool softener through a tube to permit her to begin defecating again”; upon returning home, she cried “as her mother had never seen her cry before”; [89] healing that was “fairly traumatic” and an injury “that may never heal.”[90] 

            Fourth, based on popular reporting, the public could not know of this “horror.” Instead, the anodyne term “child rape” was repeatedly used, with, at most, reference to undescribed “emergency surgery.”[91] For the abolitionist media, public ignorance is bliss. Linda Greenhouse displayed this attitude in her oral argument “memo.” Preferring no rape details at all,[92] she mocked the state lawyer’s “vivid … recounting in grisly anatomic detail the injuries inflicted on an 8-year-old girl.” Without revealing the actual injuries, she trivialized them with sarcastic and callous contempt: “the girl’s physical injuries had healed in two weeks. [Justice Stevens’] point was to bring the anatomy lesson to an end. [The] lawyer … reluctantly conced[ed] that the injuries had healed….”[93] With overt admiration for Stevens as a “master strategist…fully in command,” she swooned that he “pounced” on the district attorney’s “anatomy lesson.” But Greenhouse, in aid of Stevens’ minimizing the injuries as “not permanent,” did not reveal the details in the third point above, as well as the fact that the attorney stressed psychological and mental injuries.[94] Also, she failed to report that, in noting physical but not psychological injuries, Stevens evinced the huge gap in abolitionist concern for brutal criminals vis-à-vis their victims.[95] For he has lamented the “horrible feelings,” and hence alleged mental cruelty, suffered by murderers because they have delayed their own executions.[96] 

            Fifth, worse than largely hiding from the public the court’s bare mention of facts, the media did not spotlight what surely would have provoked public outrage if the public only knew.

                        The Insufficient Moral Depravity of Dignified Child Rapists Deserving of Respect. Five justices asserted that, no matter how brutal or how much suffering inflicted, rape can never be as morally depraved as murder. On the contrary, the Constitution mandates “respect for the dignity” of the rapist and he must be treated with “decency.”[97] Justice Alito, for four justices, disputed that murder is always more morally depraved than child rape: “I have little doubt that, in the eyes of ordinary Americans…predators who seek out and inflict serious physical and emotional injury on defenseless young children [] are the epitome of moral depravity.”[98] The problem is that few ordinary Americans know of the five justices’ “morality” and their fiat that it is in the Constitution – or that the five consider them morally depraved. All (including four colleagues), who object to the five’s solicitude for criminals ordinary Americans would view as brutal and uncivilized, are themselves implicitly indecent, brutal and uncivilized.[99]

            A bizarre twist to their morality is the five justices’ view that child rapists should be rewarded because there are so many of them. If the number committing a particular type of barbaric crime rises, this is a reason for a lesser rather than harsher penalty.[100] If only the public knew. But it gets worse.

                        Fact Suppression: Juries Can’t Handle the Truth. Like Captain Jessep in A Few Good Men, the Kennedy five declared juries can’t handle the truth, i.e., the facts, the very assessment of which is a core function of juries. What prior cases had implied, often strongly, was made explicit in Kennedy: because child rape is “a crime that in many cases will overwhelm a decent person’s judgment, we have no confidence that the imposition of the death penalty would not be … ‘freakis[h].’”[101]                             

            That’s it. No confidence in the judgment of the decent jury person![102] A fiat that trial by jury is unconstitutional whenever five justices fear possible jury findings! Again, this went virtually unreported.

Fact suppression thus has two aspects. Facts must be hidden from (a) the public, to avert a revolt against the Court’s abolitionism; and (b) juries, which must be barred from making decisions based on them.

Anyone Who Inflicts Lengthy Major Pain Should Not Suffer Even Short Minor Pain. Facts regarding challenges to execution methods are also often hidden.[103] Once there was hanging. Well over a century ago, the Supreme Court upheld the firing squad.[104] Then the electric chair was upheld as humane.[105] Then came the gas chamber, infra 19. Then lethal injection. The ultimate goal may well be to find that no method of execution is humane and finish capital punishment abolition through the back door.[106] The Supreme Court has taken up lethal injection three times, [107] delaying executions[108] for reasons having nothing to do with guilt or innocence.[109] One or two justices have indicated the state should “have been more respectful of this man's right to have a painless death” and provided a “safer, less painful” execution.[110]  Capital punishment has surely been turned into a “farce”[111]  when a justice refers to a “safer” execution. Anyone not immersed in Supreme Court values would doubtless think “safe killing” is an oxymoron. As for a “right” to a painless death, for most, contemplating one’s nearing execution cannot possibly be psychologically painless[112] and, physically, we all have experienced some pain from needles and other medical instruments. One may be skeptical whether a convicted heinous murderer is entitled to less discomfort than patients undergoing routine medical procedures every day.

Beyond that is the time it takes for the murderer to die. Death penalty opponents complain Christopher Newton did not die fast enough! It was reported that the 16 minutes it took Newton to die on May 24, 2007 “was the longest stretch that any of [Ohio’s] inmates executed since 1999 has endured…” This was “more than twice as long as usual, and 5 minutes longer than the state's previous longest on record.”  “Too long … agonizing,” remonstrated death penalty opponent Jonathan Groner.[113] The American Civil Liberties Union got into the act[114] and then a mother sued Ohio because it also took her murderer son too long to die (ignoring that he lived 22 years after his victim).[115]

Completely obscured by this one-sided attempt to drum up sympathy for murderers are the facts regarding what they have done. Journalists reporting on “botched” executions ignored Newton’s deeds. In prison due to a history of violence, he weighed between 195 and 225 pounds; his cellmate-victim, Brewer, weighed 130 pounds. The Ohio Supreme Court continued:

… around 5:10 a.m., …. Brewer was lying still on the floor in a puddle of blood … Newton was laughing and had blood smeared all over his face…[He] had "painted himself with [and ingested] the victim's blood…."while medical personnel were trying to save Brewer's life, Newton was laughing and yelling, "'Let him die. I killed him.'…'Fuck that bitch [Brewer]. You might as well not even work on him. He is already dead.'" … "'Stop, let the fucker die.'" …Newton … had hit Brewer earlier … and had seen the fear in his eyes and knew he was going to kill Brewer ….After the assault, Newton… allowed Brewer to lie dead for an hour …because Newton knew that paramedics would try to save his life…Newton …seemed very happy and…repeatedly asked, "'Did I kill him?   Is he dead?'" [and] also said, "If he is not dead, I hope he is going to be a vegetable."...

 Around 3:30 a.m.…Newton pulled Brewer out of bed and hit his head against the floor and stomped on his head twice. Newton then strangled Brewer… Newton punched Brewer in the face a few times and then cut a strip off a prison jumpsuit and strangled Brewer with it. Then Newton stomped on Brewer's head again.
              Although Brewer begged, "Please don't kill me," Newton estimates that he stomped Brewer's head with his foot between five and ten times. He also stomped on his throat and chest a few times.[116]

 

Brewer died eleven hours after the brutal, terrifying and painful murder began. One who is not a capital punishment opponent might want to consider the agony and length of time it took for Brewer to die when assessing complaints that Newton’s execution took 16 rather than 8 or 11 minutes.[117]

            Fact Suppression Has Its Limits. Justice Stevens objects to a two-sentence “graphic description,” viz., the victim-suffering inflicted by rapist-murderer Cal Coburn Brown, lest the reader be “startled” into “moral support” for deciding against him.[118] But neither Stevens, nor Justice Brennan, upon whom he relied,[119] had any qualms about providing vastly more extensive “graphic descriptions” of suffering by condemned brutal killers. In Gomez v. District Court,[120] Stevens (joined by Justice Blackmun) expressed concern in great detail about the alleged suffering caused by the gas chamber. In particular, he agonized about a murderer taking “ten minutes and thirty-one seconds to die.”[121]   Far from the mere two sentences devoted to victim suffering, about which he remonstrated in Uttecht,, Stevens devoted 1,700 words in six pages to graphic details about murderer suffering in Gomez.[122] As with Judge Noonan, Stevens said nothing about the brutality and suffering inflicted by the killer, Robert Alton Harris.[123]

            On January 21, 1985, Justice Brennan protested a “vivid portrait of…gruesome details” of a murder.[124]  The “portrait” was 166 words.[125] However, on April 29, 1985, Brennan provided far more “gruesome details” about the electric chair. His 14-page dissent was nearly 7,000 words.[126] Compare what Stevens and Brennan objected to with this sample of Brennan’s capacity for “gruesome details”:

…death by electrical current is extremely violent ....when the switch is thrown, the condemned prisoner "cringes," "leaps," and "'fights the straps with amazing strength.'" ^… "The hands turn red, then white, and the cords of the neck stand out like steel bands." …The prisoner's limbs, fingers, toes, and face are severely contorted. ^... [his] eyeballs sometimes pop out and "rest on [his] cheeks." …[He] often defecates, urinates, and vomits blood and drool.[127]

 

            In sum, abolitionists do not seek fact suppression, per se. Their modus operandi is to hide from the public facts that will make heinous murderers unsympathetic, while ardently revealing facts they hope will generate compassion for murderers.[128] Opponents shout from the rooftops any facts about suffering of murderers, all the while ignoring and suppressing facts about the vastly greater suffering they inflict.

            And what can evoke greater sympathy than portraying a murderer as facing execution because cold-hearted judges, who can’t wait to kill him, refuse to hear evidence showing he is really innocent?[129]                        

II

“innocence” claims and the media: roger Keith Coleman 

                This article focuses upon efforts to save murderers whose guilt is unchallenged. Of course, many criminals do deny guilt despite overwhelming evidence. Sometimes, they are aided by media death penalty opponents seeking a cause célèbre. A graphic illustration is the case of Roger Keith Coleman, which shows the egregiously dishonest lengths to which these “abolitionists” will go on behalf of vicious murderers.

            The Narrative: Courts Hurry Execution, Refusing to Consider Evidence of Innocence Due to Minor Attorney Mistake.  Concealing facts is bad enough, but in Coleman’s case, the media engaged in affirmative deceit, writing and broadcasting what reporters had to know was absolutely untrue. They blared Coleman was executed without consideration of the merits of his appeals. What could be more contrary to American values than executing an innocent man without allowing him to be heard in court because his lawyer made a minor technical filing error? That was the media’s “narrative” or “story line.”[130]

            After Coleman’s May 20, 1992 execution, eleven years after raping, stabbing, cutting the throat of, almost beheading and murdering his own sister-in-law, a New York Times headline shouted: “Virginia Executes Inmate Despite Claim of Innocence,”[131] implying any murderer should be able to avoid execution simply by claiming innocence. But this was a mild version of the media theme that an innocent man was executed due to callous judges more interested in making the trains run on time than in whether a condemned man is truly guilty. Consider the May 18 Time magazine cover. Over Coleman’s almost angelic baby-faced but forlorn picture appeared:  “This Man Might Be Innocent. This Man Is Due to Die …The courts have refused to hear the evidence that could save him….”[132] Time asked: “what’s the big rush?”[133]

            In words calculated to get attention Coleman asserted: “An innocent man is going to be murdered tonight. When my innocence is proven I hope Americans will recognize the injustice of the death penalty ….”[134] This was echoed just eight months later, when, citing Coleman, Justice Blackmun wrote: “The execution of a person who can show that he is innocent comes perilously close to simple murder.”[135] For years, death penalty opponents used Coleman as the Holy Grail to show execution of an innocent man.[136]

            Nearly a year before his execution, Coleman v. Thompson[137] was decided. The New York Times editorialized: “Because his lawyers filed a piece of paper one day late in a Virginia court, the Supreme Court holds … a death row inmate[] is not entitled to challenge the fairness of his murder trial in Federal court.”[138] If this statement were true, we could all surely agree with the Times’ further characterization of it as a “bizarre conclusion.”[139] But this was based on a misleading Linda Greenhouse report.[140]

            Greenhouse on Coleman. According to her, Coleman was the “most sweeping” of decisions “sharply constricting” Federal habeas corpus petitions by state prisoners. “[A]lmost” any state procedural failure would forfeit that right, even if a lawyer’s error prevented raising any “constitutional” arguments in state court. Also, Coleman followed McCleskey v. Zant,[141] a “ruling that essentially limited” inmates to one petition by erecting “almost insurmountable barriers …” Coleman’s “petition to the Virginia Supreme Court had been dismissed because his lawyer filed it three days” late; a Federal petition would be allowed if good “cause” could be shown, but that would not include “attorney ignorance or inadvertence.” The only mention of Coleman’s crime was that he “was convicted and sentenced to death in 1982 for the rape and murder of his sister-in-law. He maintained his innocence, relying on physical evidence….” Lastly, after noting that “nearly 40 percent of all state death sentences in recent years have been set aside by Federal courts” on habeas petitions, Greenhouse suggested the limitations in cases such as McCleskey and Coleman would preclude Federal courts from “continu[ing] in their historic role as constitutional overseers of the quality of justice meted out by the states.” 

            This news story is a paradigm of media misreporting on behalf of murderers. First and most glaring is the complete failure to even mention let alone address the three-page first part of Justice O’Connor’s opinion for the court, which detailed the history of extensive judicial review of Coleman’s claims on the merits.[142] (1) The Virginia Supreme Court provided a full review of every argument made on direct appeal.[143] The opinion, which was cited by Justice O’Connor and available to Greenhouse, was nearly 9,000 words! (2) Thereafter, Coleman filed a petition for a writ of habeas corpus in the local state circuit court raising numerous federal constitutional claims. Not mentioned by Greenhouse is that the circuit court denied all of Coleman’s claims only after conducting a two-day evidentiary hearing.[144] (3) It is from that ruling that Coleman’s lawyers filed a 3-day-late notice of appeal to the Virginia Supreme Court, which granted a motion to dismiss based on the late filing. Nevertheless, the motion was granted only after briefs were submitted and apparently considered.[145] (4) Coleman then sought a writ of habeas corpus in federal district court, which denied the petition. Unreported by Greenhouse was O’Connor’s statement that: “The District Court concluded that, by virtue of the dismissal of his appeal by the Virginia Supreme Court in state habeas, Coleman had procedurally defaulted  [but]  nonetheless went on to address the merits of all 11 of Coleman's claims. The court ruled against Coleman on all of the claims.”[146] In doing so, the court emphasized that it had “laid aside all technical and legal arguments, [and] found the evidence presented at trial sufficient to find Coleman guilty beyond a reasonable doubt.”[147]  (5) O’Connor then noted that the Fourth Circuit reviewed and upheld the district court’s decision[148]  

            After eleven more months’ legal wrangling Coleman was executed, amid a media circus proclaiming his innocence.[149] Contemporaneously with Time’s cover story that he was going to be executed because the courts “refused to hear the evidence that could save him,” U.S. District Judge Glen M. Williams was very carefully considering precisely that evidence, upon which, he issued a 6,200 word opinion.[150] It was barely mentioned by reporters[151] and surely not with the repetition and detail of Coleman’s version. Two points made by Judge Williams merit special attention. (1) Detailing the history of the case, he observed: “this is the twelfth round of a murder case that began eleven years ago.”[152] (2) After again reviewing the evidence, expressly to ensure there was no “miscarriage of justice,”[153] he pointed out: “Coleman has not made a colorable showing of ‘actual innocence’ …. After a review of the alleged ‘new evidence,’ this court finds the case against Coleman as strong or stronger than the evidence adduced at trial. Most of the ‘new evidence’ is either irrelevant, of no probative value, or hearsay and thus not admissible in a court of law.”[154] New genetic testing, at Coleman’s request by his own designated expert, narrowed him down to 0.2 percent of the population whose semen matched that found in the victim.[155] Finally, the Supreme Court issued a second opinion on the day of Coleman’s execution, reiterating “this is now the 12th round of judicial review in a murder case which began 11 years ago” and referring to “an expert's genetic analysis that further implicated him in the crime -- an analysis conducted after trial at Coleman's request….”[156]

            Cracking the Greenhouse Code. Judge Williams’ reference to “actual innocence” breaks what may be termed the “Greenhouse Code,” language masking as much as it reveals. The key code terms are “sharply constricting,” “constitutional,” “essentially,” “almost insurmountable” and “quality of justice.” In sum, the Supreme Court had issued “sweeping” decisions “sharply constricting” the ability of state inmates to raise “constitutional” arguments in federal courts. In particular, McCleskey v. Zant,[157] decided two months before Coleman, had “essentially” barred more than one federal habeas corpus petition by erecting “almost insurmountable barriers” The implied result was a diminution of the “quality of justice” in state courts.[158]

            Only careful parsing can reveal that the Greenhouse code is designed to convey to unsuspecting readers meanings greater than actually stated. Words like “sweeping,” “essentially,” and “almost,” are all less than “complete” or “total.” If inmates were “sharply constricted,” they clearly were not completely constricted; if barriers were “almost insurmountable,” they could be surmounted. Limiting “constitutional” arguments is no bar to other arguments.  “Sweeping” is a pure value judgment and surely not total.

            The whole point of this carefully chosen language, using every iteration but the one that counted, was manifestly to avoid telling a busy lay public that Coleman held exactly the opposite of what seemed to be reported, viz., that Coleman would have been spared had his carefully reviewed evidence even come close to indicating he was innocent. The Supreme Court has never ruled otherwise.[159] 

            Of paramount significance, the Supreme Court unmistakably specified that actual innocence trumps any procedural default barrier, a point Greenhouse repeatedly omitted.[160]  To be very clear, McCleskey stated that, notwithstanding any unexcused procedural default, a federal court could intervene in “extraordinary instances when a constitutional violation probably has caused the conviction of one innocent of the crime …. a fundamental miscarriage of justice…. a ‘colorable showing of factual innocence.’”[161]

            For all the agitation about executing an innocent man without considering exculpatory evidence, the overwhelming truth, known in 1991 and 1992, is that courts on all levels diligently and repetitively considered Coleman’s claims and found them utterly wanting. Also, the courts were restricted to admissible evidence, including blood, semen and pubic hair matches.[162] But what makes the media support of Coleman’s public relations campaign so blatantly dishonest is the deliberate choice not to report available information that, while inadmissible in court, was surely admissible in the court of public opinion, especially in the face of such propaganda. And the media sanitized what they did report.

            For example, in Time’s airbrushed version, Coleman had had the “misfortune” to have “served time … for attempted rape.[163] What a perfect manifestation of the abolitionist mindset! It was not his victim but the convicted attempted rapist who suffered “misfortune.” The New York Times referred to a “prior record of indecent exposure and sexual assault.”[164] So it is worth quoting how, a full month before his execution, The Roanoke Times reported Coleman’s record, including the “attempted rape” and “indecent exposure”:

Coleman was convicted of making two obscene telephone calls and was given a three-year suspended sentence.…

In 1977, a schoolteacher … accused Coleman, then 18, of entering her home on false pretenses, forcing her at gunpoint to tie up her 6-year-old daughter, and attempting to rape her. She escaped. Coleman denied the charge, but was convicted ….

The most chilling assessment comes from library Director Pat Hatfield and Jean Gilbert, a clerk-typist there. On Jan. 12, 1981, two months before McCoy's murder, Hatfield and Gilbert were alone at the library just before its 8 p.m. closing.

A man, openly masturbating, walked through the door, approached the desk, ejaculated, turned and left. … Hatfield [said] "… there was a look of hatred in his face that scared me to death."   Both amateur artists, the women drew a composite sketch ….  independently, they picked Coleman out of a basketball team picture ….

"There are a few of us alive who are witnesses to his perversion," said Hatfield last week. "We need to be pretty vocal. It's not mistaken identity."[165]

 

 

If, in 1992, a local newspaper knew of this violent history of looks of hate, perversions and sex offenses, only dishonesty in pursuit of an agenda can explain why it was not reported by the national media.[166]

            With the Greenhouse code broken, it is clear that all the fulminations about restrictions on the right of appeal are really about attempts to curtail frivolous, repetitive and abusive petitions having nothing to do with innocence and everything to do with delay, making the death penalty as costly as possible[167] and almost impossible to carry out.[168] If a murderer sentenced to death can appeal again and again, he will die only of old age because no case can ever come to an end. Given the protracted delays still going on,[169] the attempted restrictions of Coleman and McCleskey appear to have proven ineffectual. But, in 1991, the Supreme Court was at least trying to eliminate misuse of the federal courts for endless meritless appeals.

            Briefly, Coleman held state courts are important and must be given an opportunity to correct errors. An unexcused default in promptly raising issues would bar the federal court intervention.[170] In McCleskey, the issue was “abuse of the writ” of habeas corpus. If fifteen arguments can be made, a case will never end if allowed to be raised one at a time. Hence, the Court held that, absent good cause for not timely raising arguments and actual prejudice, successive petitions would not be allowed.[171] Even so, an exception would be made for a colorable showing of actual innocence.[172]

            Nevertheless, Coleman was portrayed by the media as a horrible example of a man denied the right to have his case heard due to a minor attorney technical violation. In reality, the merits were considered and found lacking. That still further appeal was not allowed despite this was presented as a scandalous outrage.

            Skillful attorneys can always raise new arguments or old ones disguised to seem new. A perfect case in point is Gomez v. District Court. [173] Robert Alton Harris sought to delay or even set aside his execution on the ground that the gas chamber was cruel and unusual, and thus “unconstitutional.” Lower court judges kept issuing stays and the Supreme Court finally had enough:

                                   This … is an obvious attempt to avoid the …bar [to] this successive claim for relief. Harris has now filed four prior federal habeas petitions. He has made no convincing showing of cause for his failure to raise this claim in his prior petitions. … This claim could have been brought more than a decade ago. There is no good reason for this abusive delay, which has been compounded by last-minute attempts to manipulate the judicial process.[174]

 

Death penalty opponents on the Ninth Circuit refused to accept this, leading an exasperated Supreme Court to issue a rare and extraordinary order: “No further stays of Robert Alton Harris' execution shall be entered by the federal courts except upon order of this Court.”[175]

Instead of showing the slightest recognition of abuse of the system and legitimacy of ever bringing cases to an end, death penalty opponents sharply castigated the Supreme Court. Without a trace of understanding the irony, The New York Times editorialized in 1992 about “The Court’s Rush to Kill….for two wanton 1978 murders.”[176] An execution after 14 years was a “rush to kill.” But it was worse than that, screeched a disgruntled Ninth Circuit judge, John T. Noonan, described in the media as a “conservative.”[177] In an article, arguing that state executions should not “run on schedule,” 14 years apparently being a much too hasty schedule, he actually accused the Supreme Court of   “treason” for rejecting his view of the Harris case.[178]  In Coleman, a wait of 11 years after 12 rounds of judicial review indicated “impatience” and a desire for the “trains to run on time.”[179] 

            In 2007, ABC news unabashedly posted on its website this headline: “Judge: 'We Close at 5'   Texas Judge's Decison [sic] To Close On Time Lead [sic] to Immediate Execution”[180]  Imagine that! An execution 21 years after murder was “immediate” because yet another delaying tactic was forestalled by a court allegedly closing too early to receive papers containing no claim of innocence.                                   

             Constitutional Claims. The Greenhouse assertion that “constitutional” claims were “sharply constricted”[181] is an artful way of saying that, after appeals had been drawn out and abused, defaulted claims failing to show actual innocence would be barred. In a symbiotic relationship, “constitutional” claims are brought by anti-death penalty lawyers (and favorably reported by media allies) as a vehicle for like-minded justices to force unpopular values upon an unaware public. The great irony of the sham media Coleman “narrative” was that the Court’s feeble attempt, to thwart frivolous constitutional claims not casting doubt upon guilt, supra 25-27, was presented to the public as lack of concern about the very question of guilt.

            Nearly all the cases cited in this article involve “constitutional” claims not contesting guilt. They are the last refuge of the guilty and their champions’ long term, largely successful strategy of slow strangulation of capital punishment.[182] Few subjects better illustrate the concerns of Thomas Jefferson and Abraham Lincoln: the constitution has become “a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please,”[183] with the people having “ceased to be their own rulers.”[184]

            To take a few examples, unfettered jury discretion in deciding both guilt and whether to impose a death sentence was held constitutional.[185] But a year later, the death penalty was held unconstitutional because juries had too much discretion.[186] Not long thereafter, the death penalty was held unconstitutional because juries had too little discretion; and states were required to determine how many discretion angels could dance on the head of a Supreme Court pin.[187] Mandatory death sentences for especially “grievous” crimes were possibly constitutional;[188] then they were not possibly constitutional.[189] It was constitutional for judges to impose the death penalty on facts not found by a jury;[190] then it wasn’t.[191] It was constitutional to execute mentally retarded murderers[192] and those under the age of 18;[193] then it wasn’t.[194] Methods of execution once held “constitutional” as humane were later challenged as inhumane.[195] Two justices want to reward murderers who long delay execution by declaring the delay itself unconstitutional.[196]

            In the face of such flip-flopping inconsistency, absent any duly adopted amendments, can the Constitution be seen as anything but a pretextual fig leaf rather than a legitimate basis for these decisions?[197]  It is precisely “constitutional” claims with no showing of innocence that drag out cases of the clearly guilty for over 30 years.[198] As Supreme Court majorities relentlessly and miraculously “discovered” more and more of their unrepresentative values to be enshrined in the “constitution,” justices in the minority, on behalf of democracy, protested: “There is something to be said for popular abolition of the death penalty; there is nothing to be said for its incremental abolition by this Court.”[199] Chief Justice Burger complained: “the Court regresses to playing a grisly game of ‘hide and seek,’ once more exalting the sporting theory of criminal justice….”[200] Justice Rehnquist objected to the court’s “sport of fox and hound.”[201] Justice Scalia explained why “the Court can be so cavalier….It is just a game, after all.”[202] He objected to “turning the process of capital trial into a game.”[203] It is a deadly game because judge-saved murderers have lived to murder another day, often multiple victims.[204]

            Judge Learned Hand warned of abusive manipulative delaying tactics long ago. In a textbook example of deliberate quotation out of context to convey a meaning exactly the opposite of what was clearly intended, Time magazine commenced its report[205] by quoting one of the twentieth century’s greatest judges: “Our procedure has been always haunted by the ghost of the innocent man convicted. It is an unreal dream.”^[206] Here is what Hand really said, as Time’s reporter surely knew:   

   Our dangers do not lie in too little tenderness to the accused. Our procedure has been always haunted by the ghost of the innocent man convicted. It is an unreal dream. What we need to fear is the archaic formalism and the watery sentiment that obstructs, delays, and defeats the prosecution of crime.[207]

 

                        Finally, Greenhouse lamented her alleged demise of the federal courts’ role as “constitutional overseers of the quality of justice meted out by state courts.” What is “quality of justice”? Given their view that capital punishment is a moral issue,[208]  for opponents, “quality of justice” is whatever subverts and makes it ineffective and almost impossible to carry out.

            Justice Jackson famously stressed that “reversal by a higher court is not proof that justice is thereby better done.  We are not final because we are infallible, but we are infallible only because we are final.”[209] Also, Justice Scalia complained: “the peculiar state of current federal habeas practice is this: State courts routinely see their criminal convictions vacated by federal district judges, but federal courts see their criminal convictions afforded a substantial measure of finality and respect.”[210] If, in the past, some states have egregiously sullied “quality of justice,” is it per se inferior today? Moreover, recall such federal examples as Dred Scott v. Sandford,[211] Plessy v. Ferguson[212] and Korematsu v. U.S.[213] Finally, the Supreme Court’s death penalty handiwork renders dubious any argument that federal quality of justice is superior.      

            From the other end of the moral spectrum, Justice Brennan agreed. He had no qualms about seeking to impose his moral values through the state courts when he could not get his brethren to go along, presumably because the state courts would “mete out” a “quality of justice” superior” to that of the federal courts.[214] In the end, for Brennan and his ideological soul mates, the particular forum does not matter any more than the actual words of the constitution and the law. What matters is what is best for criminals, which, in turn, is best achieved by pretending victims and the public do not exist, never did or are irrelevant.  

III

defying the people

If, as unelected judicial abolitionists preach, the issue involves morality, is it moral to force their unrepresentative values upon a representative democracy? Their moral weakness is betrayed not only by the openly conceded need to suppress case facts, but also by misrepresentation of their defiance of the people.

Public Support for the Death Penalty Remains. The death penalty has been nearly abolished by an unaccountable judiciary. Infra 43. Media and judicial opponents, while not acknowledging this,  have suggested that whatever subversion has been reported accords with public opinion, perhaps as justification and to sway the unsuspecting to hop on a faux bandwagon. For example, in late 2007, according to a CNN headline: “Executions drop in '07 as states rethink death penalty.”[215] The New York Times claimed in a news story that “enthusiasm for executions outside of Texas has dropped sharply” and opined “the rest of the country is having serious doubts about the death penalty.”[216]

Abolitionist media gloating was largely due to two events. First, New Jersey legislatively repealed its death penalty statute and, second, 2007 had the fewest executions in thirteen years.[217] This prompted wishful thinking non sequiturs. Neither the New Jersey repeal nor the execution decline showed the public had “rethought” the issue and lost its “enthusiasm” due to “serious doubts”; in fact, these events were in defiance of and not in response to public opinion.

The 2007 New Jersey repeal did not “end” executions, as The Times claimed, because none had taken place since 1963 despite a 1982 death penalty reinstatement, as the very same Times story conceded.[218]  This was largely due to prior judicial repeal in all but name only and not public wishes.[219] The “repeal” required a “lame-duck Legislature, when some departing legislators might be more easily persuaded to support it,”[220] suffering no political consequences “despite solid public support in the state for capital punishment.”[221] In fact, “[p]ublic opinion across the United States still remains solidly in favor of capital punishment.”[222] Hence, the 2007 decline in executions was not because of any change of public “thinking” or lack of “enthusiasm”; it was directly due to moratoria ordered by unaccountable justices.[223]

Moreover, in trying to make their case, the opponents claimed support for the death penalty declined when those polled were given the option of “life without parole.”[224] This is an example of poll manipulation; no such option exists because it can only be promised but never be guaranteed.[225] Indeed, death penalty support remains strong even when the specter of executing the innocent is raised. Hence, for example, thanks to the contested but skillful campaign claiming many executions of the innocent, supra 3, in May 2003, an astonishing 93 percent of respondents agreed this had occurred, while at the same time 70 percent still favored the death penalty, with 28 percent opposed![226] This led Jane Eisner to admit, with candor rare for opponents, “to being out of touch with American public opinion,” while proudly declaring “I don’t mind being in the minority.”[227] She lamented: “even when states … have imposed moratoriums on executions, even when judges … and lawmakers … think the current system is flawed, Americans seem to have few qualms.”[228] The implicit underlying question is: how can Americans flout their morally superior leaders?[229]  Not asked: how can the leaders flout the people?

One way is to deny being out of step with the public at all, instead claiming declining support. Indeed, abolitionist justices often purport to apply public values in the very act of defying them. For example, in Atkins v. Virginia, Roper v. Simmons and Kennedy v. Louisiana, the justices abolished previously upheld capital punishment for “retarded” and under-18-year-old murderers, as well as child rapists, in part, on the basis of a newly discovered ”consensus.”[230] This was vigorously disputed.[231] Also, the abolitionist justices have repeatedly claimed to be simply applying the “evolving standards of decency that mark the progress of a maturing society.”[232] This, too, has been vigorously disputed.[233] However, in other contexts, the very same justices, who used alleged “evolving standards” and a “consensus” to vitiate states’ democratic choices to the contrary, have also argued that the states should be permitted to act as laboratories to experiment with other social policies not widely accepted – including helping clearly guilty murderers evade execution.[234] When Roper, Atkins and Kennedy  were decided, not only was there strong denial of changed consensus and evolved standards, it was also questioned why they should govern only when in the direction of the abolitionist justices’ values but not vice versa.[235] Is it only “a happy incident”[236] when state laboratories adopt policies smiled upon by these justices?  Finally, the advocates of New Jersey’s death penalty repeal cited “evolving standards,” but close examination reveals them to be no more than the standards of unaccountable judges and unrepresentative legislators, not the public.[237]

The Judicially Asserted Irrelevance of the People’s Moral Values. Alone, it is highly misleading to equate elite defiance of prevailing moral values with reconsideration or change by the public. But worse, while dubiously purporting to apply these values, abolitionist justices have long made clear that they consider them secondary to theirs, surely not determinative, and actually downright irrelevant.[238]

Justice Marshall, who, with Justice Brennan,[239] asserted the death penalty is unconstitutional, succinctly stated: “The mere fact that the community demands the murderer's life in return for the evil he has done cannot sustain the death penalty.”[240] To support his position, he pointedly quoted Justices Stewart, Powell and Stevens: “the Eighth Amendment demands more than that a challenged punishment be acceptable to contemporary society.”[241] Dispelling all doubt, they added: “public perceptions of standards of decency … are not conclusive.”[242]

Thirty-two years later, five justices bluntly decreed “our own judgment” disallowing “the community as a whole … to affirm its own judgment.”[243]  So much for “evolving standards of decency”! Five justices’ standards, not the people’s, prevail.

What separated Brennan and Marshall from Stewart, Powell and Stevens was not expansion of judicial prerogative but its use. The former declared death sentences always unconstitutional; the latter were content with the more politically astute course, viz., whittling away toward nearly complete, rather than complete, abolition.[244] The latter three also sought to treat murderers in accordance with "the dignity of man."[245] Moreover, Marshall conceded that 35 states had enacted new death penalty statutes in four years.[246] To these justices, the word “unusual” in “cruel and unusual” could be disregarded, again showing to be a sham any appeals by them to “consensus” on behalf of murderers whose guilt is uncontested.[247]

All this has led Justice Scalia to complain that the Supreme Court had

decreed - by a sheer act of will, with no pretense of foundation in constitutional text or American tradition - that the People (as in We, the People) cannot decree the death penalty, absolutely and categorically, for any criminal act, even (presumably) genocide…. Today … the Court strikes a further blow against the People in its campaign against the death penalty.[248]

 

 

The claim to apply evolving standards of decency suggests that the standards of those who wrote the Constitution were indecent and no longer apply. But current public standards do not control either. Referring to Brennan, Judge Bork well summed up the have-your-cake-and-eat-it-too abolitionist position:

He would avoid, on the one hand, the mistake of adhering to the anachronistic views of past generations, the generations that gave us the Constitution, and also avoid, on the other hand, the majority vote of today’s living generations. Having avoided both the original meaning of the Constitution and today’s democratic choice, what is left? Only Justice Brennan’s moral views on capital punishment.[249]

 

 

It is appropriate to further examine these views.

 

 

IV

facts vs. fairness: the Tunnel Vision of “Abolitionist” Morality

In foisting their version of morality upon an unwilling citizenry, based upon allegedly insufficient moral “culpability,” “reprehensibility” or “depravity,” justices have “demanded” execution immunity for most murderers by concocting ever-narrowing “death eligibility.”^[250] This involves applying values to facts. Jurors voting for death have heard details. This explains why three Penry juries so voted, supra 13, in the face of moral values imposed by justices without deigning to mention the facts of his crime.

In the abolitionist moral universe, there is no room for information about the lives and suffering of victims – or their families and communities, also victims.  Opponents would ban reference to impact on victims.[251] Acknowledging victims and their suffering would undermine pretensions to morally superior compassion. Viewing execution as beneath them – and our society – opponents focus almost exclusively on murderers. When investigators complained Sister Prejean did not see the brutality they saw, she replied: “I know that they see parts of it that I don't see. But I see some things they don't see, too.”[252]

The moral answer is “so what!” If one is an “angel” for 11,000 days but commits brutal rapes and murders, putting victims through torture on three days, are we supposed to look only at his good nature? Do good deeds confer a license to commit evil deeds?[253]

The attitude of justices who rescue clearly guilty murderers reflects disingenuous contradictions boiling down to “heads the murderer wins, tails the victim loses.”[254]  They want punishment determined by moral culpability but also to preclude the jury from hearing facts relevant to that issue, and even object to brief mention of facts in court opinions.[255] Justices who ordinarily favor diversity[256] oppose recognition of victim diversity. These say every murderer must be treated as a “uniquely individual human being” but reject victim individuality. Yet the murderer’s individuality is miraculously dispensed with if a category can be invented to excuse him from the death penalty regardless of all barbarity.[257]

Murderers’ “humanity,” “intrinsic worth” and “human dignity” are paramount, but victims are to be dehumanized and their intrinsic worth, dignity and individuality ignored – by justices and the media.

A critical ignored fact is that we are not all equal. We are born equal before the law but not with equal ability, and we do not live or behave equally. Hence, the law has always treated different conduct differently. That is the essence of criminal law, embodied in sentencing guidelines and penal codes, which specify and classify various acts of unlawful conduct. Has political correctness obliterated ability to appreciate differences in the conduct of Adolph Hitler and Albert Schweitzer?  

President Kennedy famously said “life is unfair.”[258] When he himself was assassinated, the impact was far greater than that of unknown murder victims.[259] Given Sirhan Sirhan’s political motive, murdering the late President’s brother, Robert, during an election campaign, attacked the democratic process.[260]  The harm caused by President Lincoln’s assassination was incalculable. A distinct word is used for murdering a leader: assassination. It assaults his followers, what they stand for and the entire body politic. Moreover, there is far more grief and loss inflicted by slaying a church-going mother of eleven children who is also a valued community leader than a victim alone and friendless.[261]

If some murders cause less grief and harm than others, should that benefit all murderers, by reducing culpability to the lowest common victim denominator? Why should those who wreak more harm benefit because others inflict less? If not every murderer causes the same amount of damage and suffering and if the Supreme Court demands that murderers be treated as individuals, shouldn’t there also be accountability for the full magnitude of the harm done on a case-by-case basis?

Alan Dershowitz has complained: “we … focus [too much] on victims….it is very important to focus on the defendant and … away from the victim….We shouldn’t evaluat[e] criminals by the fortuities of who they happen to kill….the defendant is the same; the act is the same; and the culpability is the same.”[262] However, those who argue for murderers distinguish attempted from successful murder despite the act and intent being the same. If sincere, they would agree shooting with intent to kill should be a capital crime and not depend on the victim’s luck, health, ingenuity and medical care.[263]

 A Love Affair with Murderers. Alas, that will never happen because, for “abolitionists,” the guiding principle is what is best for the murderer. If it serves his interest to ignore the victim, that will be done; not so if the victim’s fate helps him. Also, if it maximizes sympathy for the murderer by taking into account his individual circumstances, that will be advocated; but if he is too unsympathetic, it will be demanded that his case be considered, not in isolation, but in comparison to other murderers treated less harshly.[264]  A vicious premeditated murderer slightly under 18 will be deemed still in childhood, but a 16 or 14-year-old victim is not a girl but a “woman.”[265] When DNA tests have cleared people convicted of murder, this has been used to oppose the death penalty.[266] So, would opponents allow the penalty when DNA conclusively establishes guilt? The answer is obvious.[267]

The reason for this is made clear by Bryan Stevenson. A leading abolitionist and advocate for guilty murderers, he declared his love (!!) for them. While paying lip service to their “pure evil,” he declared:  “It’s spiritually gratifying, contacting and connecting with the people on death row. It's more meaningful than anything I do. These are people I love and care about.”[268] 

Despite expectable denials, loving murderers requires a callous disregard for victims, future as well as past. Kenneth McDuff,[269] Richard Biegenwald,[270] Lemuel Smith[271] and other saved duly convicted murderers have been allowed to brutalize many new victims.[272]

Serving a murder sentence,[273] Smith beat, strangled and bit off the nipples of a female prison guard, and threw her body in the garbage to be compacted.[274] A 4-3 majority of laceName w:st="on">New YorklaceName> laceType w:st="on">StatelaceType>’s highest court used this barbarity to impose its morality by declaring the state’s death penalty law unconstitutional.[275] Apparently, the majority placed a higher value on Smith’s life than the guard’s. Realizing an essentially punishment-free murder had been sanctioned, Smith boasted: "I got so much time they can't do nothing to me… Think about it. If I wanted some sex, I could rape, I could sodomize. They can't do nothing to me!"[276]  

Three years later, not to be outdone, the United States Supreme Court made it possible for federal inmates to get away with punishment-free murders, holding unconstitutional “a statute that mandates the death penalty for a prison inmate … convicted of murder while serving a life sentence without possibility of parole [for a prior first degree murder conviction].” [277]

One-Sided “Compassion” and the 0.16% Execution Rate. Do the justices ever think about faceless, nameless new innocent victims they have condemned to death with no rights whatsoever to indictment, trial or more than 25-30 years of myriad appeals? Do they care?   

Do they even think about the three to eighteen lives of innocent victims saved by each execution, according to recent studies?[278]  Do they care about the over 707,000 victims murdered between 1972 and 2007,[279] an average of nearly 20,000 per year, 54 per day or one every 27 minutes? Do they care that this is more than all the battle deaths in all our wars over more than 200 years?[280] Do they care that, during 1972-2008, 1,136 murderers were actually executed,[281] a rate of 0.16 percent of their 707,000 innocent victims? Can this require any conclusion but that, in the justices’ moral value conceit, the lives of murderers are far more valuable than those of their victims?[282]  What does it say about the media when the magnitude of this domestic slaughter is rarely, if ever, reported, while massive reporting is devoted to accidents and natural catastrophes, absolutely tragic but involving far fewer deaths?

Clearly, the anti-death penalty justices, without explicitly saying so and unreported by the media, have stealthily but almost completely abolished the death penalty.[283] 

Justice Ruth Bader Ginsburg laments the “stress she feels when having to vote on 11th hour death-penalty appeals … in which the appellant will die if the court refuses to hear the case.”[284] Justice Harry Blackmun agonized that it was “particularly excruciating” to decide capital cases.[285]

It would be stunning to find any expression of stress or “excruciation” by Ginsburg and Blackmun – or any like minded colleagues – regarding extra lives lost at the hands of murderers they have saved.[286]

            When Justice Stewart voted to nullify the death penalty, he analogized it to “being struck by lightning” and referred to “a capriciously selected random handful” upon whom it would thus be unconstitutional to “permit this unique penalty to be so wantonly and so freakishly imposed.”[287] He later demanded a “principled way to distinguish [a] case, in which the death penalty was imposed, from the many cases in which it was not.”[288]

            This one-sided view of fairness, with perfect tunnel vision, ignores three factors. First, it confines fairness to comparing murderers with each other, wholly ignoring fairness between murderers and victims. Without Booth’s open contempt for victims,[289] it nevertheless omits them from the fairness equation.  Second, it can equally be said that victims are chosen “in the same way [as] being struck by lightning” – except that being struck by lighting is a tragic accident. Murder is deliberate, itself “wantonly and … freakishly imposed.” Third, only execution can guarantee that a murderer will not murder again.[290] Justice White concurred with Stewart but conceded: “executed defendants are finally and completely incapacitated from again committing rape or murder or any other crime.”[291]

            By contrast, saving murderers sentences new innocent victims, with neither trials nor decades of appeals, to avoidable “wantonly and freakishly imposed” murders, without “compassionate” intervention by “merciful” justices professing concern about “fairness.” Only tunnel vision completely disregarding victims can see fairness here. Or it may be willful disregard. These justices are fully aware of unexecuted murderers who have brutalized new victims.[292]            

            Justice Blackmun, in a locution used as the title of an abolitionist book,[293] declared he would “no longer tinker with the machinery of death.”[294]  Its central flaw, he wrote, was that it was hopeless to decide with “rationality and consistency” which “similarly situated” murderers should and should not receive the death penalty.[295] That this machinery was manufactured by his court[296] did not seem to faze Blackmun, who disregarded victims in the name of fairness.

            If, as abolitionists assert,[297] this is a moral issue, its crux is whether to focus upon murderers or their victims. Should a murderer’s sentence turn on others’ sentences? If exactly equal treatment for every murderer controls, especially with myriad Supreme Court restrictions and mandates, there can be no death penalty: if not all murderers receive it, none should. That would eliminate fear for would-be murderers[298] and increase “wanton and freakish” murders of innocent citizens. Also, abolitionist disingenuousness is shown by banning non-discretionary mandatory sentencing even for particularly heinous crimes.[299] Requiring both discretion and precisely equal treatment obviously cannot be reconciled.

            It is inconsistent, if not hypocritical, for the very justices who oppose mandatory death sentences and insist upon “individualized” sentencing to object that similar murders do not result in similar sentences.[300] If “individualized” sentencing prevails when it benefits a murderer, why shouldn’t it also apply when it does not? Should not the sole consideration be the murderer and his crime? If he can complain about others treated less harshly, “individualized” sentencing is a charade.

            Once it is accepted that no criminal should be punished more than any other criminal who committed the same offense, all prisons must be closed. When fairness among criminals rather than between criminals and victims becomes central, it obviously is not fair to punish those who are caught when those who are not caught or convicted get off scot-free.[301]  Also, because those who are caught receive different sentences, no caught convict should receive more than the most lenient sentence ever given for a crime. 

            In this moral scheme, the lowest common criminal denominator complements the lowest common victim denominator, supra 40: (a) no criminal should be punished more harshly for inflicting more actual harm and suffering upon victims than any other criminal who committed the same act, and (b) and no criminal should receive greater punishment than the criminal who received the least punishment for causing the same injury and pain. Hence, two chances to minimize punishment for all crime. 

            Justice Black was prescient: “It is seemingly becoming more and more difficult to gain acceptance for the proposition that punishment of the guilty is desirable.”[302]

V

No Argument too Preposterous – if only the public knew

            Attorney Mark Pulliam observed: “Nothing, even words whose meaning should be clear, is free from doubt in a courtroom, and no argument is too preposterous for a lawyer to make with a straight face.”[303] For those with a passion for the “humanity” of cold-blooded murderers, no argument is too absurd to stretch out cases of the clearly guilty for decades. This is abetted by the media.

 Media Blackout: Justice Breyer’s Obsession. In saving Johnny Paul Penry, the Supreme Court anguished Pamela Carpenter’s family for 28 years.[304]  The unreported reaction of justices responsible for such travesty is not concern for the family, but for the murderer! The public has no idea that Justices Stevens[305] and Breyer[306] contend murderers who game the system long enough should be spared the death penalty because they thereby have suffered too much. Breyer, citing foreign courts,[307] has agonized for more than a decade[308] about “suffering inherent in a prolonged wait for execution,” the “‘horrible … feelings’ that accompany uncertainty about whether, or when, the execution will take place,” “the ‘dehumanizing … lengthy imprisonment ….’” and “the ‘inevitable long wait’ that exacts ‘a frightful toll’” on the murderer.[309]

Justice Thomas objected: “It is incongruous to arm capital defendants with an arsenal of ‘constitutional’ claims [to] delay their executions, and simultaneously to complain when executions are inevitably delayed.”[310]

Breyer seems obsessed with trying to reward depraved murderers who, aided by him and his colleagues, have so protractedly delayed their executions that very many would be horrified if they knew. Alas, it made no news when, for the sixth time, on October 15, 2007, he dissented on this ground from a denial of certiorari.[311] Noting that Joe Clarence Smith was “first sentenced to death 30 years ago,” Breyer asserted he could “reasonably claim that his execution at this late date would be ‘unusual.’ … much of the delay at issue seems due to constitutionally defective sentencing proceedings. And whether it is ‘cruel’ to keep an individual for decades … under threat of imminent execution raises a serious constitutional question.” (Emphasis added.)

In response:  First, if not actually appearing in a justice’s writings, this might seem a parody of abusive “constitutional claims” on behalf of murderers. Second, Breyer’s constitutional question is so “serious” that no other justice joined him in Smith or three of his four prior cited cases.[312] Third, the “constitutionally defective sentencing proceedings” often could not be known by trial courts to be defective when they occurred, and the “delay … stems from this Court's Byzantine death penalty jurisprudence.”[313] Fourth, like Justices Ginsburg and Blackmun,[314] Breyer’s compassion and concern for cruelty show no sign of including victims.[315]  

Fifth, if apprised of the facts of this barely reported case, a large percentage of the American public would surely want to know, as in Uttecht, supra 3, how it could linger decades.[316] And could this occur without media cooperation by not reporting facts?[317]  Only one obscure paper commented: “absurd …. We doubt that Justice Breyer would favor any attempt to hasten the appeals process ….”[318]  Although Breyer has complained about delays of 17 and 25 years being too long, Lackey and Knight, he has voted for stays and new proceedings in equally delayed cases.[319] Also, media headlines scream “rush to kill” after “only” 14 years and “immediate execution” 21 years after the murder.[320] So, for opponents, when is execution after a multi-year delay a “rush to kill” and too “immediate” and when does delay suddenly become too long to allow execution? Justice Breyer provides no answer.

Sixth, beyond lack of any real concern for victims’ families and confining concern for suffering to brutal murderers, opponents have used their protracted judicial torture of families to rationalize abolition. Tying the system in knots and putting families through repeated dilatory trials and appeals on behalf of the clearly guilty, abolitionists express “compassion” by arguing the torture they themselves inflict, compounding the pain of losing loved ones, could be relieved by abolition.[321] Faux concern also has been shown for rape victims who survive torture and attempted murder.[322] A corollary argument is that the very non-enforcement of the death penalty and concomitant massive costs of repetitive decades-long “Byzantine” legal proceedings justify repeal of death penalty statutes.[323]

This smacks of the parent murderer seeking mercy because he is an orphan.

 More Absurdity. It would be no surprise if, given the bar to execution of the allegedly mentally retarded, it will be claimed to be unfair to execute intelligent murderers[324] with happy childhoods, or those who, while not mentally retarded, were not smart enough to avoid getting caught,[325] or could not help themselves because they were unfairly poor[326]  – or accursedly rich! [327]  

This is all of a piece with the systematic attempts by advocates to sanitize and minimize the magnitude of their clients’ cruelty.[328] In 1961, Wilbert Rideau robbed a bank, and kidnapped and shot three victims, stabbing one to make sure she was dead. This was downplayed as merely "incredibly stupid and tragic.” Also, not denying his crime, he convinced many, including the last jury to hear his case, that he “never intended…to hurt anybody,” despite having taken with him a loaded gun and a knife.[329]  Similarly, the New Jersey Supreme Court vacated a death sentence because it said it was not clear that a rapist really intended to kill a victim he stabbed 53 times, including 18 in the genital area.[330]

            “Superior Judgment.” Having expressed lack of confidence in the judgment of “decent jurors” and the superiority of its “own independent judgment,”[331] it is revealing, if not astonishing, to recall some of what the Court’s allegedly superior judgment includes.

Three justices (Breyer, Ginsburg and Souter) sided with Jose Medellín,[332] who bragged about brutally robbing, raping, and murdering two girls[333] – 14 and 16, but dubbed “young women.”[334] If this Mexican citizen, actually raised and educated in the United States, had prevailed, alien murderers would have a right American murderers lack, to call their native country’s consulate here.

Earl Enmund “never intended” to murder anyone and only “somehow participated” in a robbery in which an elderly couple was murdered – except that Enmund planned the crime in the first place.[335] It was unfair for Robert Parker to be sentenced to death when he did not do the actual killing and two of his accomplices got off with life sentences – except that, it turns out, Parker ordered and threatened one of them to do the shooting, after which Parker slit the victim’s throat and took her ring and necklace.[336] 

Four justices agreed the Tison brothers should not receive the death penalty because they did not intend that anyone be murdered[337] when all they did was to smuggle a chest filled with guns into a prison to help the escape of two convicted murderers, one serving a life sentence for murdering a guard during a prior escape.[338] The ensuing four murders of an entire family including a two-year-old[339] could not possibly have been foreseen by the young Tisons![340] Although a 5-4 majority of the U.S. Supreme Court appeared to rule that the Tisons could be executed, they were not, because the Arizona courts felt the high court actually, in the end, left little choice.[341]

A murderer should have a serious chance to succeed with the argument that he would not pose a future threat to society if sentenced to life without parole because he was “only” dangerous to old ladies.[342] It a sign of mental retardation when a rape is carefully planned and the victim is calculatingly murdered to avoid capture and return to prison.[343] An act that is “heinous” if committed by a person one day over 18 is rechristened “irresponsible” if he is one day under 18; it is indecent to expect a nearly 18-year-old person to appreciate the wrongfulness of premeditated torture-murder and joyfully boasting about it.[344] A murderer under 18 is a “juvenile,” a “boy,” but a victim of 16 is an “adult woman” and, moreover, she is “unharmed” when raped under threat of death![345] When a 300-pound man rapes an 8-year-old girl, tearing her vagina so that her rectum protrudes into it, requiring surgery, this is inadequate “moral depravity.”[346] Because a nearly-18-year-old torturer-murderer has deficient “moral culpability,’ he must be allowed “to attain a mature understanding of his own humanity.”[347] But, for the mature 300-pound torture rapist whose 8-year-old victim does not die, forget moral culpability, because his “dignity” must be “respected….to allow him to understand the enormity of his offense” that is not so “enormous” as to justify execution.[348] There can be no death penalty for “ordinary” murder with insufficient torture or suffering – or for barbaric torture without death.[349] As a group, punishment of the depraved must be reduced if their number grows, and increased depravity by an individual confers upon him constitutional immunity from punishment for additional depraved acts.[350] States should be laboratories to reward murderers who game the system, but not to impose penalties to protect the public.[351] Finally, lack of confidence in juries goes only so far. When they impose the death penalty, they cannot be trusted; but when they do not, the court has such confidence in their judgment that it is used to establish “national consensus” against the capital punishment.[352]

Are these judgments really superior to those of “decent jurors”?

            Guilty But Innocent. It is good public relations to argue the innocent are being executed wholesale. But for those who “love” murderers, supra 41, this is really beside the point. In the ultimate in sanitizing, Bryan Stevenson declared:

… innocence has been a very effective way to get people who would otherwise not think about this issue…to do that. …it is misguided to focus on those … in the very narrower sense of the word, wrongly convicted. … I’ve represented … over a hundred people on death row …. I’ve never represented anybody who I thought was guilty of the death penalty. All of my clients are innocent of the death penalty, and … There are a lot that are innocent of a capital crime, even if they’re involved in the crime.[353]

We represent anyone … at risk of death. We believe that all accused are innocent of the death penalty because we reject capital punishment ….[354]

 

In other words, the condemned murderer was guilty of the act but did not merit the death penalty. Voila! With verbal prestidigitation, guilt magically becomes innocence.

In Sawyer v. Whitley, the Supreme Court said: “The phrase ‘innocent of death’ is not a natural usage….”[355]  It addressed the argument that Sawyer had committed murder but should not have received (i.e., was “innocent” of) the death penalty. It is appropriate to note that he and his accomplice

struck [Frances] Arwood repeatedly with their fists and dragged her by the hair into the bathroom. There they stripped [her] naked, literally kicked her into the bathtub, and subjected her to scalding, dunkings, and additional beatings. [Sawyer] left Lane to guard the victim, and apparently to rape her, while [Sawyer] went … to boil water to scald her. [Sawyer] kicked Arwood in the chest, causing her head to strike the tub … rendering her unconscious. The pair then dragged [her] into the living room, where they continued to beat and kick her. [Sawyer] poured lighter fluid on the unconscious victim, particularly her torso and genital area, and set the lighter fluid afire. He told Lane that he had done this to show "just how cruel he could be." There were further brutalities …. Arwood … remained in a coma until she died of her injuries approximately two months later.[356]  

 

This, then, is the conduct those who “love” murderers claim to be “innocent of the death penalty”! This is what they believe merits mercy! In their moral world, Sawyer’s life was as valuable as Arwood’s, and he had as much “humanity” and “human dignity” and was entitled to as much “respect.”

To keep alive, for decades, undeniably guilty, cold-blooded killers, giving them a chance to kill again, their advocates have sought to “humanize” them,[357] while dehumanizing and disregarding their innocent victims, who receive no rights, protection or concern. Individual and “intrinsic” “worth” and “dignity” “as human beings,” “potential to attain a mature understanding of [one’s] own humanity” – these are values exclusively for murderers.

Advocates for murderers seek to make victims into Soviet-style “non persons.” This requires avoiding facts.[358] 700,000 “out of sight, out of mind” is their motto.    

But abolitionists, including justices,[359] aren’t content with that. They not only label the guilty “innocent,” but rechristen as “victims” those guilty of the worst brutality, and those who would punish them as “brutal” “perpetrators” of “organized violence” or “state violence”[360] Judges who play a role in capital punishment are “violence-abetting”[361] and further the “infliction of pain.”[362] To a layperson, this rhetorical sleight of hand would surely seem misguided if not surreal.

They may deny it, but abolitionists evince a callous, if not utterly cruel, lack of concern for actual victims. It is positively scandalous that they have been allowed to claim the moral high ground.[363]     

CONCLUSION

 Those who dominate the media and courts, including the Supreme Court, oppose the death penalty. Substantial majorities of the American people have supported it. Yet, opponents have prevailed in all but name only; when only 0.16 percent of homicides result in executions, the penalty has been effectively abolished. This is concealed by abolitionist justices and their media allies to avoid a hostile reaction by a fully informed public whose values have been egregiously but stealthily trampled upon. To maintain the ruse, a token few sacrificial murderers are allowed to be executed for the vast number of homicides; and even they are never executed without a protracted struggle.

The key to abolitionist success is vast deception.

First, it is dishonest to pretend that the death penalty has not been abolished, in the name of a Constitution that explicitly and repeatedly permits it.

Second, if this is a moral issue, as foes assert, it is very easy to proclaim oneself morally superior by citing only seemingly hapless docile murderers on death row without giving a thought to what they have done and may do again if allowed. The debate is routinely obfuscated by focusing on them but ignoring or trivializing the suffering and even existence of their past, present and future victims.

            Third, inter alia, a fair moral debate would not be confined to experts but would confront the public with these questions:

                        Is it moral to value, in practice, the life of a law-abiding innocent citizen vastly less than that of a clearly guilty barbaric murderer? Is it moral to demand absolute death penalty perfection, with heartless unconcern for the perfect certainty of causing new innocent victims of clearly guilty murderers kept alive by mistakes in catering to abolitionist sensibilities?

            Is it moral, as abolitionist justices would, to exclude victim impact evidence? Is it moral to aver that grieving family members are not also victims? Given the original torture inflicted, often sadistically, upon victims, is it moral to compound that torture by forcing their families to endure decades-long obstructive legal proceedings unrelated to guilt or innocence? Is it moral for abolitionists to use this very torture they have inflicted, by manipulating a legal system run amok, as a weapon to compel proponents to surrender by accepting abolition to relieve the torture?

            Is it moral to allow disingenuously absurd excuses to keep alive those guilty of crimes even abolitionists concede to be “horrendous,” “brutal” and “evil”? Is it moral to excuse evil deeds because their perpetrators may have done good deeds ostensibly rendering them forgivable “good persons”?  Should criminal law proscribe and penalize misconduct by anyone or merely by “bad” but not “good” persons? Is it immoral to declare certain deeds themselves per se indicia of evil, regardless of past perpetrator history? Is it moral to condone evil by classifying a victim as an adult but a murderer of the same age as a juvenile?

            Is it moral to label those who support or administer the death penalty “perpetrators” of “state violence” and those executed the “real victims” of violence, empathizing with suffering of the condemned rather than those they tortured? Is it moral to “love and care” about brutal, sadistic and premeditated murderers? Is it “uncivilized” to mandate or permit the death penalty for conduct the term “uncivilized” does not sufficiently describe, and are those who seek this “uncivilized”?

            Is “no confidence” in the “decent [jury] person’s” judgment warranted? What is “moral depravity” and who should decide – five unaccountable justices, or elected legislators and decent jurors? Does the self-presumed morally superior “independent judgment” of justices merit respect or acceptance when, for example, they (a) assert rape under threat of death, three weeks after giving birth, is not harmful, and (b) order trial judges to aid convicted murderers by misleading juries? Is it moral to reduce penalties for the depraved as a group because their numbers grow, and to reward an individual’s increased depravity with immunity from punishment for new depraved acts?  Is Justice Alito correct that, “in the eyes of ordinary Americans, the very worst child rapists … are the epitome of moral depravity” –  contrary to the Court’s edict that torture-rape of a child by a 300-pound man, causing harm even his judicial benefactors concede to be too gruesome to adequately describe, is insufficiently morally depraved to merit execution?

            Is it illegitimate, even “pathological,” for representatives to enact laws that reflect the wishes and interests of their constituents, because such laws are contrary to the Supreme Court’s “vision”? Is it tolerable for the moral values of five unelected justices to trump the public’s in a representative democracy? A fortiori, is it morally and constitutionally tolerable for five justices to impose their values as superior to those of their fellow citizens, when these very justices preach equality, especially that the life and “dignity” of a murderer is worth at least as much as his victim’s, if not more? Is all this really “decency,” as in the Supreme Court’s concocted mantra, “evolving standards of decency”? Does “decency” require more concern for the “suffering” and “humanity” of the cold-blooded or their victims?

            If justices persist in imposing their own unpopular values to abolish a punishment expressly authorized by the Constitution, is the Supreme Court entitled to continued respect and the legitimacy dependent upon that respect?

Fourth, avoiding a balanced moral debate requires deliberately covering up or refusing to report key facts of cases and/or, where that fails, affirmatively making false statements about them. This includes deception about (a) the nature of the murders committed (concealing the details so as not to “startle” moral sensibilities, in Justice Stevens’ words); (b) the nature of the murderers (e.g., pretending they are too retarded or too young to know rape and murder are wrong, when in fact they fully know it); (c) what the courts have been and are doing to protect brutal murderers whose guilt is unchallenged and crystal clear (e.g., imposing their own moral values, baiting and switching that renders it virtually impossible for states and trial judges to know and hence apply the requisites for imposing the penalty); and (d) the sentence (e.g., positing life without parole as a viable alternative that can be guaranteed).

Fifth, the public would be horrified and demand an explanation if informed that (a) the courts have dragged out brutal murder cases for over thirty years when there is no doubt about guilt, and (b) there are actually justices who want to reward the murderers for the delay. One need not be a legal expert to realize there is something profoundly wrong with this – and, yes, immoral.

Moral assessments of facts require knowledge of those facts – full knowledge, not half-truth. Opponents of the death penalty, in the courts, the media and the legal establishment have spared no effort to make sure that the public does not acquire full knowledge.

            It is an aim of this article to persuade at least some in the media to provide a less imbalanced death penalty account. Failing that, hopefully death penalty proponents will publicize the case. Opinion leaders with media access should inform a wide audience what is at stake. Those who care about victims should raise money and conduct widespread advertising. Only a massive internet, media and advertising campaign can provide a remedy for the condescension, arrogance and usurpation by the five person Supreme Court majority that has eviscerated the death penalty – in defiance of public opinion and on behalf of those who cannot fairly prevail in the democratic process.

            This cannot continue if even some of the facts in this article become widely known.