Since I haven't read that thread in over a year and my memory is fuzzy as to the details, I'll just respond very briefly.
poutine wrote:
Your argument is one for legislators, not for courts.
That doesn't make it wrong.
Quote:
My beliefs about the death penalty are based on my personal interpretation of what the eighth amendment and due process clause of the Constitution require. Constitutional analysis of this issue does not allow for consideration of budgets.
My very short opinion of the constitutionality of the death penalty is that it is constitutional because the Supreme Court says so. In the imaginary world where I am a Supreme Court Justice, I would write an opinion along the lines of that of William Brennan or Thurgood Marshall in
Furman and
Gregg and then dissent in every future opinion, citing the original opinion.
Quote:
That aside, I also disagree with the "benefits of the penalty" policy analysis you suggest. This is because there is no real benefit at all, except for an intangible emotional one on a societal basis. There is no proof whatsoever that application of the death penalty results in lower crime or homicide rates.
The evidence is actually equivocal. If by "proof" you mean "evidence sufficient to convince any reasonable mind," I agree. However, from what I have seen, I believe there is some evidence, that I find unpersuasive, that there is a deterrent effect. There is also some evidence, that I find persuasive but is insufficient to convince all reasonable people, that the death penalty has a brutalizing effect on society and is actually counterproductive.
However, in response to what I think was your original point, I believe the application of the death penalty in the State of New Jersey was, from its reintroduction after
Gregg in 1982 until its repeal in 2007, similar to what you would suggest. The result was that while scores of capital cases resulted in the imposition of the death penalty, every one that reached final appellate review was overturned and of those still in litigation in 2007, not one was actually carried out. The result was an enormous waste of time and money and a mockery of process.
That may not be, strictly speaking, a constitutional argument. I have nothing more to add to that argument than has already been stated by Justices Brennan and Marshall (and later Blackmun). Perhaps it is constitutional to perpetrate a cruel futility at gargantuan expense. I think in the case of the death penalty, it is not. However, whether or not it is constitutional, it strikes me as an unusual way to run a justice system.