Your discussion of the death penalty (May 1) seems fairly clearly to imply that it is not carried out in an arbitrary and capricious manner. Since I had the great good fortune to be appointed to handle a death case several years ago, I can attest that it is the most intellectually dishonest body of law I have ever seen.
For example, as I'm sure you know, Gore and Campbell give defendants in civil cases a federal due process right to de novo proportionality review of punitive damage awards to make sure that the award corresponds to the reprehensibility of the conduct. A person facing a death sentence has no federal right to proportionality review. How can a money judgment for punitive damages merit greater due process protection than a death sentence?
Then I read your post on Point of Law criticizing medical malpractice cases as serving no deterrent function because the results are basically random. I'm sure that's true but I don't understand how you can assume that the same judges and the same system are going to function any better in capital cases than in medical malpractice cases. I believe it was George Will who reminded conservatives that the death penalty is just another government program. -- Mark Arnold, St. Louis, Mo.
1. Without getting into a discussion of the soundness of Gore and Campbell, I would disagree that there is no proportionality review; the Supreme Court struck down capital punishment for rape in Coker v. Georgia, for felony-murder in Enmund v. Florida, and for retarded murderers in Atkins v. Virginia.
2. I don't disagree that there's a lot of intellectual dishonesty in death penalty law. My preference would be to have capital punishment administered in an intellectually honest way such that its deterrent value would be less ambiguous. And I do believe that medical malpractice suits have deterrent value, I just believe that the negative incentives outweigh the positive ones; I don't see capital punishment, as currently administered, creating incentives to avoid socially productive behavior. Several days a week, I also subscribe to the notion that there are some crimes sufficiently heinous that a moral society would not suffer the criminal to live, but that's just an unquantifiable gut reaction from reading about the crimes committed by death row inmates.
It's a tough question all around. Thanks for writing. -- Ted FrankPosted by Walter Olson at May 10, 2005 03:54 PM