The other side of my “conflicted” feelings about the death penalty



Scott Greenfield and Jeff Gamso have fair but critical posts about about my earlier piece today regarding the death of Michael Ryan, a sadist and convicted killer. My earlier post was intended to illustrate one side of my conflicting views about the death penalty. Briefly, I offer an illustration of the other side of my conflicted feelings about the death penalty.

When I was a Magistrate Judge (and shortly before the White House began consideration of yours truly for nomination as a district judge), I recommended that the writ be granted in a death penalty case. The district judge adopted my recommendation, and the issuance of the writ was affirmed on appeal.  Rust v. Hopkins, 984 F. 2d 1486 (8th Cir. 1993).

I had concluded that the Nebraska Supreme Court created a reasonable doubt requirement for sentencing after the three-judge sentencing panel made its findings on aggravating circumstances using a lesser standard of proof, and even if the Nebraska Supreme Court could have remedied the invalidity of the sentencing panel’s determination by “resentencing” the defendant under the proper standard, the defendant would be deprived of his due process right to either a two-tier sentencing procedure or notice that the Supreme Court intended to “resentence” Rust on appeal. In a related vein, I was appalled at one of the factual findings by the Nebraska Supreme as the court grievously misstated the record as to whether Rust pumped bullets into the victim while the victim lay on the ground. (None of the members of the Nebraska Supreme Court that handled Rust are on the Court today.)

Mr. Rust came very close to being put to death, and that was so because of a screwy and blatantly unfair ruling by a state appellate court made worse by an important misstatement of the record. The Rust case is an illustration of the other side of my “conflicted” feelings regarding the death penalty.



11 responses

  1. JA,

    I am tempted to provide you with a flip answer like “too bad, so sad.” But I won’t. I elect not to answer your “how do I feel question.” My feelings are irrelevant.

    As for percentages, the National Academy of Sciences estimates that 4.1 percent of those sentenced to death were likely innocent. However, since 1973, 144 people on death row have been exonerated. As a percentage of all death sentences, that’s just 1.6 percent.Id.

    Are these acceptable error rates? That is not up to me to decide.

    All the best.


  2. Anonymous’s question about possible flight death statistics is irrelevant to the question in hand. Flying on an airplane is voluntary. Being sentenced to death, whether or not one is guilty, is not voluntary. I am personally against state-sanctioned killing because I see all life as sacred, especially human life. To kill someone on behalf of the state is to deny this view; it is, in a sense, cutting a person off from Humanity. Regardless of the awfulness of the crime he or she may have committed, I do not see how it can help anything or anyone. I doubt anyone by whom the victim survives could honestly say that the killing of the perpetrator provided any lasting closure. Two wrongs never make a right. I may be accused of making an argument solely based on “feelings;” I apologize if I am or if it appears I am. Full disclosure: I am a Buddhist monk, and I am a Canadian citizen.

  3. After 50 years as a lawyer I find the idea that American Courts are competent to take life hard to swallow. The only real justification for the death penalty was the absence of any real alternative, which is no longer the case.

  4. Dear Buddist Monk,

    I have never met a Buddist monk (so far as I know). I do like Canadians, however. My daughter in China married one.

    All the best.


  5. There is an long time lag between innocent people being sent to death row and being exonerated, I think that accounts for the difference in the percentage figures you mention.

    I enquired about your feelings, because you stated you had “conflicted feelings about the death penalty”, I wanted to explore that.

    Many judges have slowly come to a modern view expressed last week by the Former Chief Justice of the Georgia Supreme Court Norman Fletcher:

    “With wisdom gained over the past 10 years, I am now convinced there is absolutely no justification for continuing to impose the sentence of death in this country.”

    ( )

    Perhaps you may in time come to agree with your colleague.

  6. JA,

    As I look back, my reply to your comment was too harsh. I apologize.

    The foregoing said, since I have pending before me two death penalty cases from Nebraska and one from Arkansas, I can do little more than express my conflicting feelings. The question about how I would come down on whether to keep or junk the death penalty if I were the King is better left unanswered.

    All the best.


  7. “I was appalled at the factual findings.” Judges find the “facts” and “law” they want to get to their conclusions. Whether they are valid is another matter altogether and all too often, they are not.

    This is why I oppose the death penalty.

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