Interview(8-2)

Amendment 8 (2)

Original Message- From: Spencer Ortmyer <12sortmyer@cypanthers.org> To: DaveKeefe  Sent: Tue, Oct 4, 2011 9:00 am Subject: Capital Punishment

Hi, my name is Spencer Ortmyer and I am a senior at Central York High School in York, PA. I’m currently in Law class and we are studying different amendments and I’m studying the Eight Amendment, which deals with capital punishment. I was wondering if you could take some time to answer just a few questions concerning capital punishment. I greatly appreciate you taking your time and helping me with my project.

I think it's bad social policy. It's inaccurate and often unjust, it doesn't accomplish its purposes, it's more expensive than life imprisonment. What's to like about it? What's to like is that it expresses our animal outrage at some of the awful behavior we see around us, but it does so in a way that's unworthy of our boast of being civilized.
 * 1) **What is your stance on capital punishment?**

I pretty much agree with the Catholic Church's position on capital punishment, i.e., that it should be employed, if at all, only rarely. When might I agree on its use? Maybe in a case where we can agree that the person in question represents such a threat to our safety that only his extermination will be adequate protection. I'm not sure I've ever seen such a case. The state of Texas, where they're enthusiastic about killing, has my kind of judgment incorporated in their capital punishment scheme. The jury is told that they may impose a death sentence if they find that the defendant will pose a continuing threat of criminal violence if not executed. The prosecution routinely presents a psychiatrist to testify that the defendant in question is of a violent nature and will pose such a threat. Sadly, there's not a shred of actual evidence to support such "expert" opinion testimony--testimony which has occasionally been given in cases where we later learned that the defendant was innocent of the crime for which he was sentenced to death! It's a mockery, and I don't think its flaws can be eliminated.
 * 1) **What are some things you feel should be changed about capital punishment? Things that should be kept?**

I don't really have one. The phrase was included in the Constitution by drafters who wanted to prevent exotic & torturous punishments in an age when capital punishment itself was quite well accepted. The Supreme Court is charged with interpreting the Constitution. They've said that it refers to any punishment that violates society's "evolving standards of decency." Then they get tangled up in trying to determine what those "evolving standards" may be. Should the determination be limited to just what Americans think, or should the wider world be consulted? How do we determine what Americans think? The Supreme Court sometimes relies on the enactments of state legislatures (i.e., the laws they pass) as the barometer, but then they acknowledge that juries may not impose punishments that the law permits, etc., etc., etc. It's a moving target to say the least.
 * 1) **What’s your definition of cruel and unusual punishment?**

If you imagine a future in which society is governed by reason, it's possible that the concept of "punishment" will be rejected as inappropriate. Punishment is an expression of a moral judgment that is too often tinged with changeable and unreliable passions. We might look for a time when our response to someone's bad behavior is to make the best determination we can of what must be done to protect ourselves from such behavior. In simplest terms, this might entail locking him up until we can be assurred he no longer poses a threat. It's possible to imagine that in some cases this might mean the person would never be released.
 * 1) **How do you see capital punishment changing in the future?**

I think what it means is that European political leaders have accepted the responsibility of leading, rather than merely consulting public opinion. Support for capital punishment is strong just about everywhere. In America we favor it by about a 2-1 margin, which is consistent with public opinion in other countries. The question of what it means to be a political leader is a difficult one. In a democracy we won't accept a "leader" who gets out too far in front of public opinion and enacts laws that we find outrageous. But the point of being a leader is still to lead, to make the case for good policy instead of merely pandering to the lowest common denominator. It's here that I think the Europeans are perhaps a little more advanced than we are.
 * 1) **Why do you think many European nations have abolished the death penalty, but the United States still uses it?**

This is a very good question. We tend to justify our practices with sensible-sounding reasons, such as protecting ourselves from criminals. In practice, however, we're emotional creatures and the law and its practices reflect this. So I think our sentencing practices, including capital punishment, tend to reflect our outrage at criminal behavior, i.e., to punish.
 * 1) **Is the real reason for the death penalty to remove the person who may be dangerous to others or is it a punishment that person for what they have done?**

No. I accept that the Supreme Court has responsibility for determining what is meant by "cruel and unusual." (Someone's got to!) And even though they've made a muddle of the process they've concluded that capital punishment isn't by itself cruel and unusual under the Eighth Amendment.
 * 1) **Do you think the death penalty goes against “cruel and unusual” punishment in the Eight Amendment?**