The U.S. Supreme Court and other courts, aided by the media in suppressing critical information about case facts and case law, have all but abolished capital punishment, turning what's left into a costly and agonizing farce. While pretending to superlative morality, dishonesty, especially half-truth, is central to their cause. An egregious example was Roger Coleman, widely but with knowing falsity portrayed as a choir boy executed because heartless judges impatiently refused to hear evidence of his innocence. Going further, in myriad cases, death sentences are reversed or banned when guilt is not even disputed. This is achieved by focusing upon the alleged plight of brutal murderers, while callously withholding compassion, information and even thought about the massive suffering they inflict upon 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. Abolition would fail if the people were well informed of case facts and arrogantly imposed disingenuous legal absurdities, not the least of which is a Supreme Court majority's ipse dixit that the Constitution gives them the right and power to decide if democratically determined criminal penalties are unacceptable and to reject them. Other absurdities, wholly unrelated to innocence, concocted by judges who aver lack of confidence in decent jurors and the superiority of their own independent judgment include: 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. A man can be mentally retarded, yet carefully plan rape and murder calculated to avoid return to prison. Because it is indecent and uncivilized to expect a nearly 18-year-old person to appreciate the wrongfulness of premeditated torture-murder and joyfully boasting about it, he must be allowed to attain a mature understanding of his own humanity. A murderer under 18 is a juvenile, a boy, but a victim of 16 is an adult woman. When a 300-pound man rapes an 8-year-old girl, requiring surgery, this is inadequate moral depravity; so his dignity must be respected to allow him to understand the enormity of his offense, one not enormous enough to justify execution. It is not clear that a rapist really intends to kill a victim he stabs 53 times, including 18 in the genital area. One cannot be expected to foresee new murders when he merely smuggles a gun-filled chest into a prison to help two convicted murderers escape, one serving a life sentence for murdering a guard during a prior escape. In aggregate, the depraved should be rewarded with reduced punishment because their numbers have increased. For individuals, increased depravity qualifies one for a court-created purported constitutional right to commit more without punishment. Rape under threat of death, three weeks after giving birth, is not harmful. Trial
{"title":"Fact Suppression and the Subversion of Capital Punishment: What Death Penalty Foes on the Supreme Court and in the Media Do Not Want the Public to Know","authors":"L. Jackson","doi":"10.2139/ssrn.1346142","DOIUrl":"https://doi.org/10.2139/ssrn.1346142","url":null,"abstract":"The U.S. Supreme Court and other courts, aided by the media in suppressing critical information about case facts and case law, have all but abolished capital punishment, turning what's left into a costly and agonizing farce. While pretending to superlative morality, dishonesty, especially half-truth, is central to their cause. An egregious example was Roger Coleman, widely but with knowing falsity portrayed as a choir boy executed because heartless judges impatiently refused to hear evidence of his innocence. Going further, in myriad cases, death sentences are reversed or banned when guilt is not even disputed. This is achieved by focusing upon the alleged plight of brutal murderers, while callously withholding compassion, information and even thought about the massive suffering they inflict upon 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. Abolition would fail if the people were well informed of case facts and arrogantly imposed disingenuous legal absurdities, not the least of which is a Supreme Court majority's ipse dixit that the Constitution gives them the right and power to decide if democratically determined criminal penalties are unacceptable and to reject them. Other absurdities, wholly unrelated to innocence, concocted by judges who aver lack of confidence in decent jurors and the superiority of their own independent judgment include: 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. A man can be mentally retarded, yet carefully plan rape and murder calculated to avoid return to prison. Because it is indecent and uncivilized to expect a nearly 18-year-old person to appreciate the wrongfulness of premeditated torture-murder and joyfully boasting about it, he must be allowed to attain a mature understanding of his own humanity. A murderer under 18 is a juvenile, a boy, but a victim of 16 is an adult woman. When a 300-pound man rapes an 8-year-old girl, requiring surgery, this is inadequate moral depravity; so his dignity must be respected to allow him to understand the enormity of his offense, one not enormous enough to justify execution. It is not clear that a rapist really intends to kill a victim he stabs 53 times, including 18 in the genital area. One cannot be expected to foresee new murders when he merely smuggles a gun-filled chest into a prison to help two convicted murderers escape, one serving a life sentence for murdering a guard during a prior escape. In aggregate, the depraved should be rewarded with reduced punishment because their numbers have increased. For individuals, increased depravity qualifies one for a court-created purported constitutional right to commit more without punishment. Rape under threat of death, three weeks after giving birth, is not harmful. Trial ","PeriodicalId":413978,"journal":{"name":"LSN: Judges (Criminal Procedure) (Topic)","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-02-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126236952","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this article, Professor Morgan Cloud proposes a surprising remedy for a Fourth Amendment jurisprudence he criticizes as lacking a unifying theory and failing to preserve the rights guaranteed by the Amendment. Professor Cloud's solution is a return to the theories espoused by the Supreme Court during the infamous Lochner era of the early twentieth century. He calls for a merging of the formalist and pragmatist theories of that period into an interpretive theory of the Fourth Amendment and suggests a rededication to the Amendment's Warrant Clause. Such a theory avoids the pitfalls of literalism and judicially determined social policy, while protecting the basic purposes of the Amendment to protect individual liberty, privacy, and property and to prevent unjustified government intrusions.
{"title":"The Fourth Amendment During the Lochner Era: Privacy, Property, and Liberty in Constitutional Theory","authors":"Morgan Cloud","doi":"10.2307/1229278","DOIUrl":"https://doi.org/10.2307/1229278","url":null,"abstract":"In this article, Professor Morgan Cloud proposes a surprising remedy for a Fourth Amendment jurisprudence he criticizes as lacking a unifying theory and failing to preserve the rights guaranteed by the Amendment. Professor Cloud's solution is a return to the theories espoused by the Supreme Court during the infamous Lochner era of the early twentieth century. He calls for a merging of the formalist and pragmatist theories of that period into an interpretive theory of the Fourth Amendment and suggests a rededication to the Amendment's Warrant Clause. Such a theory avoids the pitfalls of literalism and judicially determined social policy, while protecting the basic purposes of the Amendment to protect individual liberty, privacy, and property and to prevent unjustified government intrusions.","PeriodicalId":413978,"journal":{"name":"LSN: Judges (Criminal Procedure) (Topic)","volume":"63 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1996-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130923765","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Until the mid-1980’s, federal judges had broad discretion in sentencing defendants. However, this created disparities in sentencing from one judge to another, and this created a desire for much greater uniformity. This drive for uniformity resulted in a number of strict legislative measures, including mandatory minimum sentences and mandatory sentencing guidelines. Over time, the judiciary branch grabbed back some discretion (largely through the Supreme Court’s Booker decision in 2005, which made the sentencing guidelines advisory rather than mandatory), but this has resulting in a return to disparities. The underlying problem is a view of sentencing that sees a zero-sum equation between judicial discretion and uniformity - that is, the belief that uniformity must be established by curtailing judicial discretion. This article argues for a different model: Sentencing guidelines that use peer effects and modern technology to directly use judicial discretion to create uniformity. Instead of mandated, arbitrary guidelines, a computer-based sentencing information system would require a sentencing judge to review and consider all the other sentences chosen by judges in similar situations, and this body of experience would functionally become the guidelines. A judge who strays too far from the norm would have to justify that choice based on unusual and compelling circumstances. Such a system would harness discretion as the engine towards uniformity, and discard the false dichotomy between the two that has created so much discord.
{"title":"The Promise of Trailing-Edge Guidelines to Resolve the Conflict between Uniformity and Judicial Discretion","authors":"M. Osler","doi":"10.2139/SSRN.1998457","DOIUrl":"https://doi.org/10.2139/SSRN.1998457","url":null,"abstract":"Until the mid-1980’s, federal judges had broad discretion in sentencing defendants. However, this created disparities in sentencing from one judge to another, and this created a desire for much greater uniformity. This drive for uniformity resulted in a number of strict legislative measures, including mandatory minimum sentences and mandatory sentencing guidelines. Over time, the judiciary branch grabbed back some discretion (largely through the Supreme Court’s Booker decision in 2005, which made the sentencing guidelines advisory rather than mandatory), but this has resulting in a return to disparities. The underlying problem is a view of sentencing that sees a zero-sum equation between judicial discretion and uniformity - that is, the belief that uniformity must be established by curtailing judicial discretion. This article argues for a different model: Sentencing guidelines that use peer effects and modern technology to directly use judicial discretion to create uniformity. Instead of mandated, arbitrary guidelines, a computer-based sentencing information system would require a sentencing judge to review and consider all the other sentences chosen by judges in similar situations, and this body of experience would functionally become the guidelines. A judge who strays too far from the norm would have to justify that choice based on unusual and compelling circumstances. Such a system would harness discretion as the engine towards uniformity, and discard the false dichotomy between the two that has created so much discord.","PeriodicalId":413978,"journal":{"name":"LSN: Judges (Criminal Procedure) (Topic)","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117194027","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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