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Executing a Criminal is Really Easy Now… So Why Do We Make it so Difficult?

29 Mar

By Mike McGee

It’s actually physically easy for a state or nation to conduct a judicial execution in 2017. I’m going to show you how. 2,500 years of unexamined culture and history is what makes executions so difficult and filled with drama around the United States and around the world. Continue reading

Dismantling Mass Incarceration by reducing recidivism, reoffending and the revolving door

16 Mar

By Mike McGee

It’s a fallacy to look only at the prisons and the police to find solutions to reduce mass incarceration in America. Reoffending and going back to prison generates a lot of the prison population. There are many ways to reduce the prison population by reducing reoffending. Continue reading

The Fallacy of “Dismantling Mass Incarceration:” Wishful thinking refuted by ordinary mathematics and science.

26 May

By Mike McGee

I’ve noticed that there is now academic as well as popular interest in “Dismantling Mass Incarceration” in the United States. When serious academics get involved, it’s time to address the issue head-on. Continue reading

Gun Control? Ban Guns, Better Ban Cars Also.

7 Jan

Obama-Crying

By Mike McGee

The concept of “gun control” much beyond what we have now in the US is a complete myth. Our people have their guns. The Constitution guarantees that right. We ban the nastier weapons, under the police power of the Constitution. We regulate many aspects of sale and ownership, under the same police power. The laws and rules now on the books are close to being the best system ever possible under the Constitution. We need to let go of our crusade against guns and concentrate on generating a crusade against violent people. Continue reading

The Death Penalty, Part Two

24 Apr

From www.mcgeepost.com .Copyright © 2013 Michael H. McGee. All rights reserved. Please feel free to share or re-post all or part non-commercially, hopefully with attribution.

Okay, in Part One you learned most of the reasons I am in favor of the death penalty. Now it’s time to look at the reasons I object to the death penalty as it is presently administered, and show how we can do it better.

The barbaric custom of public executions must be eliminated. Almost every execution chamber in the United States has large windows, and a gallery for an audience to assemble. The ensuing public spectacle is an utter disgrace. I am well aware that executions have been public events almost since the beginning of time. Now is the time to change this custom. Executions must be conducted in private.

The custom of holding executions in the night after a major public announcement, and inviting an audience to view the executions, lives on only because it’s the way it’s always been done. I doubt if many people have ever even questioned the practice. Yet each execution becomes a horror movie, a gore-fest, a slash/snuff drama.

The spectacle ends up being played out in the press in great detail by interviewing the either strutting or crying people who were in the viewing room. In some cases a video of the execution is released. The media loves executions, because, “If it bleeds, it leads.” Angry shouting torch-bearing mobs of pro- and anti-death penalty villagers outside the gates make good theater as well, loop-played over and over again for the 24-hour news cycles.

There were very definitely good reasons for holding public executions in the past. Those affected by the crimes could see for themselves that the perpetrator was dead. Additionally, in the past there were often problems with the identity of individuals. Those witnessing the execution could visually confirm that the right person was being executed. At this time in history there should be no problem with properly identifying the person to be executed.

If no one who knew the inmate witnessed the person’s passage from life to death, it would also be fairly easy for the executioner or other officials to be bribed to let the real person go, and execute another person or bring an already dead body into the execution room. This is not a trivial problem, even today. There may be a need for two or three neutral persons to observe each execution to make sure there is no slippage. They could be retired FBI agents or other trusted or certified persons from outside the state of execution, similar to NFL referees.

There is just no good reason to make a public announcement of the time and place for an execution. Further, the individual being executed has no legal right to a public execution. It could even be said that a person being executed has a right to privacy with regard to his or her demise. Death chambers should be deep inside prisons, with only prison officials and neutrals present to identify the individual and to verify the cessation of life.

There should be a date and time for finality of the writ of execution, with the actual event taking place at any time within three to seven days thereafter during normal business hours. A simple press release, along with form affidavits from the neutrals, should be given out within a day following the execution and prior to the release of the body. No further discussion should be had with the outside by anyone within the prison system.

It’s all in a day’s work, nothing more. Such a matter-of-fact process would not indicate indifference. It would show professionalism in performing a difficult task in a responsible manner. We must have some faith in the wardens and other staff within the prison system. Most of them are good people doing a distasteful job.

The methods of execution which are currently used in death chambers are still much too archaic and uncertain to meet twenty-first century standards. A part of the inability of reasonable people to use the most reasonable and painless of all the methods of execution is directly related to the theatrical aspect of the public witnesses to the execution. The prisoner is given his “last meal.” Then he spends time with the clergy of his choice. Then after being forcibly strapped down on the execution table, he is invited to give his “last words.” This whole process is pure theater, and detracts from the solemnity of the process.

The most “modern” current method of execution, lethal injection, is still set up in a way that is a ritual which plays to the crowd. There is much drama as the chemicals are prepared and the intravenous needle is inserted into the arm. And the chemicals are somewhat unreliable and the needle can sometimes get inserted wrong or jostled out of place. Either of these two elements of the public drama can needlessly prolong the suffering of the inmate being executed. The only one not pleased by the crowd-pleasing drama is the inmate being executed. We need to respect the inmate at the time of death in order to live up to our own moral standards and to have a satisfactory twenty-first century result.

With a private execution there’s much more freedom in the method, as there’s no one to impress with a ritual. The goal is to use the utmost simplicity which is consistent with certainty of death and complete lack of suffering. One of the few methods of execution which is consistent with these humane goals is the simple injection of morphine. Morphine is a commonly available drug which may be obtained with little fanfare by qualified persons. It is a central nervous system depressant. When injected it induces a state of euphoria and detachment from reality. Injected in higher doses it continues to increase the state of detachment, reduces muscle tone, and reliably leads to a peaceful death.

The inmate being executed may be seated in a normal-looking room in an easy chair (with seat belts to use if needed), dressed in his normal prison clothes, with peaceful music and mild lighting. A strong but not fatal dose of morphine may be injected intramuscularly without significant disturbance in the peaceful atmosphere. In an hour or so, when the inmate has reached an optimal state of euphoria and detachment, he may be moved to a gurney in the same peaceful place, and laid out flat. At this time he is injected, either intramuscularly or in a vein, with the fatal dose of morphine. Within the next hour he passes away without any pain, agony, or uncertainty. The body can be stored in a refrigerated compartment for twenty-four hours before being quietly released for burial.

As you now know for sure from this example, there is at least one much better way to execute an inmate, than the dramatic-melodramatic ways we use now. The method is fool-proof and permits the inmate a last time where he may be peaceful if desired. When we eliminate punishment and vengeance and deterrence as reasons for executing prisoners, then the need to inflict an agonizing ritual on the inmate evaporates. There is only peace: including a measure of peace for those who are executed as well as for those who are carrying out the execution. We must consider the state of mind of all those who are involved in the process.

Let’s move on to another phase of the process. In the early days of the death penalty in Western society there was a trial in the morning and a hanging in the afternoon of the same day. In the Nineteenth Century the British Parliament established a two-week waiting period between a sentence of death and the carrying out of the execution. Presumably this was to give time to see if new witnesses or evidence would come forward. It also gave time for an inmate’s solicitor to lodge an appeal of the verdict and see if the higher court would accept the matter for appeal. The higher court seldom accepted such discretionary appeals, so the sentence was still carried out most of the time at the end of the two-week period.

Now the United States has gradually over time developed the post-sentencing process into an apocalyptic drama which usually lasts fifteen or twenty years. States with the death penalty probably see some of their death row inmates die of natural causes before the appeals process is complete. Needless to say, this chaotic process is sheer madness.

There is not even one single reason why the lengthy and branching appeal process for capital cases should be continued for one more day. There are better ways to handle capital cases. The need for a better way is extremely urgent and goes to the very heart of our system of justice.

Before we look at those better ways, let’s look at a few first principles. There are those who want to focus on the death penalty as a way of setting examples to other criminals of what will happen if they commit this or that heinous crime. A public execution process is essential to the nebulous concept of “deterrence.” This ancient concept of deterrence must be eliminated. Focusing on the vague concept of deterrence makes it difficult for good people to find the courage to execute people, and for other good people to be willing to make the execution process private.

Let’s look at whether the death penalty has any deterrent effect on the behavior of those who may commit capital crimes. Eighty-eight percent of the country’s top criminologists do not believe the death penalty acts as a deterrent to homicide, according to a recent academic study. M. Radelet and T. Lacock “Do Executions Lower Homicide Rates?: The Views Of Leading Criminologists,” 99 Journal of Criminal Law and Criminology, 489 (2009).

An even more recent report concludes that we cannot rely on studies which claim either that there is or is not a deterrent effect. The study Deterrence and the Death Penalty was released in April of 2012 by the National Academy of Sciences. After reviewing more than thirty years of research on the subject, the truth is clearly stated. “The committee concludes that research to date on the effect of capital punishment on homicide is not informative about whether capital punishment decreases, increases, or has no effect on homicide rates.

So, there is no reason whatsoever to believe that here, now, in the twenty-first century, in the Western world, any arguments for or against a deterrent effect for the death penalty are valid. We must cease and desist from using the word deterrence in our discussions of the death penalty. The idea that the public execution of one person will stop another person from committing a heinous offense is so vague and unreliable that it fades into the realm of the mystical. The concept may have been valid in earlier societies of village justice or tribal rule, and may still be valid in some parts of the world where tightly knit communities take care of their own. In our modern Western virtual society, the concept just fails to play.

Now let’s look at another death penalty principle, the possibility of injustice. There has always been a great variability of the skills and abilities of prosecution and defense attorneys, judges, and the various investigators involved in the judicial process from indictment through sentencing. The justice system is only as good as the people involved in the process.

For the first time, here in the twenty-first century, we have the ability to dispense a more complete justice than was possible at any earlier time in history. Even a casual reading of history will show that in the past, the execution of individuals was at best accompanied by hit-or-miss justice, and at worst involved deliberate deception, fraud, malice or racism. If we look only to the past, then any thinking or feeling person must oppose the death penalty. Therefore it is quite imperative for us to look at the present moment to make the death penalty, from today forward, a product of the impartial application of the first principles of justice.

The professionalism of police and crime scene investigators, the rise of forensic experts, the analysis of DNA, and the availability of data and instant communications on computers, has already provided the necessary “tipping point” for the criminal justice system. We simply need to make sure all these new tools are available in each capital case, from the initial crime scene to the final sentencing. In rural areas or small towns the CSI aspect may be less available, yet modern scientific detection and analysis can be brought to bear as each case progresses.

Now back to the better way for the criminal justice system to handle capital offenses. The current system of local trials and then waiting fifteen years from the time a person is convicted and sentenced to death, and the time his appeals run out, is absurd and is completely unworthy of the American judicial system, which many would say is the finest system of justice in the world.

We need to structure a system, designed specifically for capital cases, which will provide a time-delimited straight line from sentence through appeals to carrying out the execution. The goal should be a maximum of four years from verdict to execution. Even a time frame of from five to seven years, though, would be a vast improvement.

Each state needs to establish a special Capital Crimes Unit, which is set up for the sole purpose of aiding local authorities in the investigation of potential capital cases. There would be several branches of this CCU in different parts of the state. These permanent units would employ only the best and the brightest and would be able to call on outside resources as needed. The purpose of such Units would be to assure that investigations of such crimes adhere to the highest standards and use only the latest forensic equipment and expertise from the time of commission of a heinous crime up to the time the trial is over.

For you state legislators out there, this Unit would certainly have some budgetary needs. Having these units, maybe scattered at five or ten locations throughout the state, wouldn’t cost all that much, since they would be small and would call on already existing resources as needed, and federal funds would assist. Assigned officers could investigate and process other serious crimes when there were no capital cases on the menu. CCU’s would free up significant amounts of time and resources for local police and sheriff’s departments, which can then better concentrate on the more common types of crimes which like caustic acid erode our communities on a daily basis.

The next step is to set up a special unit within the state’s highest level of trial court solely for the preliminary court proceedings and the trial of capital cases. The judges and prosecutors would have special high level expertise in the field. Defense attorneys would have to be certified as death penalty competent before they could sit first chair in a capital case.

There is more than ample precedent for using specialized trial courts where specialized experience is necessary in order to reach a competent verdict. The United States Tax Court is one such institution. All of the judges have expertise in the tax laws. Since 1969 it has had full trial jurisdiction over tax cases. Appeals are directly to the US Court of Appeals, thus shortening the process by bypassing the normal federal district courts entirely.

As another example, in my home state of North Carolina we have the North Carolina Business Court, which is a special branch of the highest level trial court, established in 2003. Cases involving complex and significant issues of corporate and commercial law are assigned by the North Carolina Supreme Court to special superior court judges with specialized business experience, who oversee resolution of all matters in the case from pre-trial through final verdict, with appeal directly to the Court of Appeals.

In such a specialized court system, qualified defense attorneys will have the same access to sophisticated forensic methods and experts as the state. This guaranteed access and certification of first-chair counsel will tend to level the playing field, since most capital defendants are represented by court-appointed attorneys.

Juries should not decide on life or death after a conviction. The judge should pronounce the sentence, based on pre-sentence reports, and on written criteria set up in somewhat the same manner as the Federal Sentencing Guidelines, which are used for the sentencing of everyday felons in the federal courts.

There must be one route of appeal only. Each state has its own appeals process. In Vermont, trial court verdicts are appealed directly to the state’s Supreme Court. In North Carolina there is an appeal to the Court of Appeals and then to the Supreme Court. Once the state appeals process is exhausted, then the only remaining path must be to petition for a hearing by the United States Supreme Court. Since the Supreme Court denies almost all petitions for certiorari, this must be the end of the road for almost all death row inmates.

With better and more specialized trial courts and investigative practices, there will be fewer injustices, thus substantially fewer opportunities for death row inmates to launch parallel sideways attacks in other courts, called collateral proceedings, against their verdicts.

Since many appellate judges are sympathetic to attacks on the death penalty, these judges at the present time will stay an execution for the flimsiest of reasons. Each state, and Congress, must pass laws setting stricter standards for collateral court proceedings, placing the emphasis on the direct appeals process being the end of the line.

The current legal processes for handling those alleged to have committed heinous crimes, and who have been convicted of committing capital crimes, is a bloody mess. There is absolutely no excuse for such a messy and convoluted process to be tolerated for even one more day in our somewhat civilized twenty-first century society.

“To be patient means not to get angry with those who harm us and instead to have compassion for them. That is not to say that we should let them do what they like.” – The Dalai Lama of Tibet.

During the stages of apprehension, trial, conviction and sentencing of those who have committed the heinous crimes worthy of a death sentence, compassion means no more and no less than making sure that all the elements of twenty-first century justice are applied at every stage in the process, with dogged persistence and with open-handed generosity.

These most modern principles of justice must be applied for the benefit of the community and the victims, as well as for the defendant. Compassion at this stage also means allowing anger to flare where it will, since compassion must be extended to include the victims of the crime and all others affected by the crime, including the community. With generosity and patience we must recognize that most of the persons affected by a crime are on fire with antagonism and hatred, and that we must let the fire burn for a time.

Once a sentence of death is handed down, though, we must be patient with those who have been sentenced to death, and exercise compassion and equanimity toward them. The current system of chaotic and multi-pronged appeals and last-minute considerations by the Governor are not even remotely compassionate to the convicted inmate.

The current system is also a chamber of horrors for the victims of the crimes. I wonder if there is anyone among the anti-death penalty crusaders who has ever considered how often the victims must revisit the killing fields of their own grief and anger during the long years of chaos following a death penalty conviction.

In this Rube Goldberg process the tables are turned: the inmate becomes the victim of the legal and political crusaders’ self-involved and desperate need to emote their own twisted emotional needs. The inmate sits in a death row cell, largely mute, and passively peruses a purple parade of passion. Seemingly well-meaning people on both sides of the death penalty issue use death row inmates for their own purposes and twist themselves into the pretzel shapes of their own internal and distorted illusions of right-wrong, good-bad, heaven and hell.

And at the very end of the line there’s one more type of person eager to take personal advantage of the situation. The governors of the various states make a Shakespearean drama out of the off chance of a last-minute reprieve from execution. Up to the very last minute, prison officials sit by a phone connected directly to the governors’ office, and reporters talk and talk about what the governor may or may not do. The decisions of the governors are almost always the same: no reprieve. The acting out of the elemental drama is great publicity for the governors, and increases the perception in the community of their power and authority. And in the end the drama convinces the electorate that the governor is not soft on crime.

Most of the governors in our great nation are capable of making breath-taking decisions with little waffling. So just cut it out, governors! Don’t contribute to the torture of all the parties by pretending to be indecisive. Make your final decision at least a week before the date of the execution. If the governor won’t do it, the legislature can set the deadline. Disconnect the direct phone connection into the execution chamber. Give us all a needed break! Stop crudely using death as a self-centered tool for your own personal and political aggrandizement!

All of the overly dramatic activity I’ve described in this series has the effect of diverting scarce government funds from other more productive criminal investigative and prosecutorial activities, and keeps the courts and judges tied up on a few cases when there are many cases that need their attention. It’s time to end the charade.

The Congress has the authority to establish and to limit the jurisdiction of federal courts. A set of laws removing the authority of the federal district courts and courts of appeal to hear collateral criminal cases, including death penalty matters, originating in the state courts is both necessary and proper.

There’s already such a rule in place regarding collateral attacks in the federal courts regarding civil matters heard and decided by the state courts. It’s called the Rooker-Feldman doctrine, and requires that civil cases decided in the state courts must be appealed only through to the highest appellate court of the state, after which a litigant’s next and only recourse is to request the US Supreme Court to hear the case.

In this series I have described the clear and practical ways to make the death penalty acceptable in twenty-first century Western society. Until these emotionally complex yet physically simple steps are taken, the drama of the death penalty is a highly questionable exercise in ancient brutal combat and political exploitation.

All this pathology has little or nothing to do with the victims of crimes, the perpetrators, or with constitutional principles of justice. Do any of these matters of the heart mean anything to us?

The Death Penalty, Part One

23 Apr

From www.mcgeepost.com .Copyright © 2013 Michael H. McGee. All rights reserved. Please feel free to share or re-post all or part non-commercially, hopefully with attribution.

After many years as a lawyer I have some good ideas on the subject of the death penalty. I’ll approach the subject by first, though, by telling a story from my own youthful experience.

I spent a year in Vietnam. I entered the Army young, before college, looking for adventure. In order to be posted to Vietnam I had to volunteer, and receive a top-secret security clearance. This was because I went to Vietnam as an advisor in early 1965, before that summer’s “big buildup” where every American combat soldier was ordered to Vietnam against their will. Thus I saw the country as it was before America “bombed it into the stone age.” I loved Saigon and its people, and I loved Vietnam. The South Vietnamese rulers were rather bloody, though, in how they ran things.

Once I was staying with the woman I loved at her house near the Ho Tam Cong Hoa swimming pool in Saigon. In the newspaper I read that there was to be a public execution by firing squad of four men who had been convicted of war profiteering. The public execution was intended to be an example to those Vietnamese who sought to make excess profits from business activities related to the fight against the Viet Cong.

I was taken aback. During the course of my duties as a US Army advisor it had become clear to me that almost every South Vietnamese partisan of any rank, right up to the top, were making obscene personal profits from standing against the Viet Cong “insurrection,” including the shady business of diverting American aid dollars into personal accounts. In my youthful yet even then cynical soul I was putting it all together: these four men must have failed to pay off the higher-ups, unlike most of the other war profiteers. The message of these executions was, to my mind: if you cut out from your profit chain the payoffs to the political leaders, you will die like a dog in the dust.

Nevertheless, I was insanely curious to watch an execution by firing squad. As a fairly sheltered American boy, I’d seen firing squads in the movies and read about them in books. I was at the stage in my life when I wanted to experience the harsh things of the world. In Vietnam I would occasionally seek new experiences even when doing so put my life in grave danger. In my innocence I wanted to be like Audie Murphy, the movie star war hero. I even acquired in Vietnam a Thompson sub-machine gun to carry, just like Audie Murphy carried in his movies.

The execution was set for six the following morning in a public square. I got up early and took a cyclo (a three-wheeled pedal taxi) to the square. Thousands of local people had already gathered to watch the execution. The crowd was densely packed so I couldn’t get too close to the front. It didn’t matter. Since I was about a foot taller than everyone else, I had a good view.

A low stage area had been prepared for the execution, which wasn’t too different from the kind of stage that might be used for a rock band. There were four large wooden stakes set firmly in the ground. A wall of sandbags about eight feet high had been piled up a few feet behind the wooden stakes. There was a standard speaker’s podium with a microphone and speakers, set out front and to the side of the four wooden stakes.

Four men were jerked out of a truck by soldiers and securely tied to the wooden posts, then blindfolded. The South Vietnamese officer in charge of the executions then went to the podium and delivered a long speech in Vietnamese, probably on the evils of profiteering. Next a line of uniformed soldiers with rifles came out and faced the four staked men.

The officer in charge gave crisp military orders. The soldiers raised their rifles. At the stroke of six o’clock a sharp barked order was given. The soldiers each fired a shot. The four bound men danced like marionettes, then slumped into postures similar to the images of Christ breathing his last on a crucifix.

It was over and the loudly murmuring crowd dispersed. I found a blue and yellow Renault taxi to return to the home of my lady. I’d seen my first execution. It was an event almost as in the movies I’d grown up with, nothing more. I knew then, though, that the death penalty had uses which were grossly improper. This was what I had seen that day.

Throughout history people have been put to death for improper reasons, from religious fanaticism to racism to the desire for power, to corruption or simple vengeance. All these rationales for the death penalty are barbaric and should not be a part of the jurisprudence of any civilized society, including that of the United States.

Nevertheless, there is a place in civilized society for the death penalty being used as the proper judgment for quite a few crimes. I’m a supporter of the death penalty, but the manner in which it’s presently carried out is barbaric to some degree. In addition, the rationales used for the death penalty are for the most part false and hypocritical.

As a lawyer I’ve never handled a capital case. In North Carolina we have more than our fair share of brilliant death penalty defense attorneys, and I’m not one of them. Even so I’ve represented about forty criminal clients where a life sentence was on the table, so I know my way around the courtroom.

What are the only real and useful reasons to continue to use capital punishment as a part of our criminal justice system? First, to remove from the earth people who have by their actions given up their right to remain alive. Second, to improve the stability of the prison system by removing persons from the system who are most dangerous to guards and to other inmates. Third, to prevent ongoing activities over many years by the worst incarcerated felons, who may have opportunities to damage the community outside the prison.

Notice I use the phrase “by their actions.” In this phrase I include the whole realm of legal and constitutional due process protections, which in most cases prevent innocent persons from being convicted of capital crimes. I deliberately use the phrase “in most cases.” There is no guarantee of perfection in any area of human life. As a matter of fact there is close to a guarantee that humans will never be able to reach any level of perfection.

Yet should we ban the use of antibiotics because some people have anaphylactic allergic reactions to these drugs and die, and these unfortunate innocents wouldn’t have died if no one was able to use antibiotics? Or should we ban the use of automobiles because about thirty-four thousand largely innocent people are killed, and millions more are maimed or injured, each year in automobile accidents?

The death penalty is strong medicine for maintaining the stability and health of the community, even though occasionally unfortunate innocent persons will die from the administration of the cure. The comparisons I’ve given in the previous paragraph are to me final and dispositive against the argument that the death penalty should be banned because some innocent persons will undoubtedly be executed. Ban the death penalty only if you are willing to ban antibiotics and automobiles.

Yet as the death penalty is administered today across the United States, it doesn’t meet the minimum standards for justice. The practices and procedures surrounding the processes leading up to the execution of criminals are at the present pathologically flawed. They MUST be altered if execution for a crime is to be used in the manner for which it is most useful. You’ll be able to easily follow my reasoning, and I trust you, dear reader, will find these standards for justice to be acceptable and needful. If you’re vigorously opposed to the death penalty, take a look anyway and maybe you’ll learn something new.

I certainly don’t expect the hard-core anti-death penalty fanatics to support these or any other reforms of the process. For them the only proper course of action is to abolish the death penalty. For these zealots, the more backward and tangled and clumsy the legal practices and procedures are, the better they like it. The sheer awkwardness of the present system is what keeps alive those who should be executed.

The modern manic and chaotic legal practices feed right into the hands of the scrupulous advocates who view any death sentence as a violation of human rights and human decency. I respect the right of death penalty opponents to have their opinion. What I’m looking for, though, is a more nuanced approach, which doesn’t cater to either of the extremes of opinion.

To summarize, as this penalty is administered today across the United States, it doesn’t meet the minimum standards for justice. The practices and procedures surrounding the execution of criminals are at the present pathologically flawed. They MUST be altered if execution for a crime is to be used in the manner for which it is most useful and least easily abused.

Let me give you some very good reasons for retaining and expanding the use of the death penalty. These reasons are not new to me, yet I’ll not burden you with footnotes except for one direct attribution. My spin on some of these reasons may be new; yet again I can’t be sure of any originality. So much has already been said on the subject by very learned persons.

Nowhere on this list is punishment or vengeance or deterrence. None of these classic reasons provides, at the present time, a moral or even supportable rationale for handing out the death penalty to the perpetrator of a heinous crime. They belong in the dust bin of history.

1. The death penalty is historically valid as a remedy for heinous crimes. The founding fathers chose not to outlaw it in the US Constitution, and thus by definition it does not fit the standard for “cruel and unusual punishment.”

2. When a person is sentenced for a heinous crime to a true term of life without parole, or even a lengthy term that expires only when the person is old, such a person has “nothing to lose,” in the most extreme meaning of that phrase. Such a person will almost always be a constant problem in the prison, plus creating a very serious problem if their maximum security is ever relaxed, or the individual ever escapes from prison, or if this person fools the authorities and is paroled later in life.

3. The author Jerry Bledsoe says that people who are sentenced to long prison terms, or life without parole, are for a lifetime a clear and present daily danger to the other inmates in their prison. Many of those other inmates are not nearly as much a threat as those sentenced for heinous crimes. These lesser criminals do not deserve to be punished inside the prison by those who have nothing to lose. All the time they are incarcerated, though, there is a danger to these other prisoners that they will either be killed or maimed, or sexually assaulted, or badly influenced further into criminal thinking, by the inmates sentenced for heinous crimes. We need to look very hard at the effect on the other prisoners of keeping those convicted of heinous crimes alive for as much as forty or fifty years of mixing with the rest of the prison population.

4. The author Jerry Bledsoe also says that those who are sentenced to long terms for heinous crimes are a very grave threat to the guards and other prison staff who have to be exposed to them on a daily basis. Do we want to daily force our honorable and hard-working state and federal prison employees to expose themselves to those maximum risks in order to make what is a very paltry living for their families? Further, the necessity for these guards and other prison and law enforcement staff to expose themselves to those inmates sentenced for heinous crimes tends to create a hardened and cynical attitude on the part of the guards. This may lead some of these dedicated men and women to lose their equanimity and commit violence and other crimes themselves against or with those sentenced for heinous crimes, or against other inmates, out of anger, resentment or having simply absorbed the values of the most heinous inmates.

5. The constant appeals that add years to the legal process encourage lawyers and other people assisting the inmates to lie, and to violate known ethical standards, in their zeal to “save a life”. If “any action” is appropriate for a lawyer to take in order to save the life of an inmate who has been sentenced to death, then would that include bribing a judge or attempting to bribe the governor? Would it include “eliminating” witnesses before time for the person’s trial, so that they won’t even be found guilty and will be let loose? What is the real meaning of being willing to take “any action” to save the life of a heinous criminal? Mostly it involves lying, and creating false defenses for the sole purpose of dragging out the time. A lawyer should never face the dilemma of either maintaining high ethical standards, or feeling somehow responsible for a client’s execution.

6. It is a well-known and well-documented fact that many hardened criminals are able to continue to influence the actions of persons outside the prison where they are incarcerated. If a man sits in prison for forty or fifty years, he has all the time and all the motivation to keep up his contacts outside the prison. There are also very many documented cases of persons sentenced for heinous crimes being able to continue to operate a criminal enterprise from inside the walls. There are also many documented cases of such an incarcerated criminal being able to act inside the prison walls to plan and execute vengeance against those, either inside or outside prison walls, he believes turned against him or who he just doesn’t like, or who he perceived as being his competitors or successors in crime.

7. An incarcerated criminal should never be allowed to operate outside the walls of his or her prison. Yet most prison walls are so porous they permit all kinds of outside activities by those sentenced for heinous crimes, from criminal enterprise to vengeance to commercial trade. And this will not likely change, due to legitimate budgetary constraints.

8. Most prisons are fairly good at separating inmates who are under a death sentence from the general prison population, and more tightly regulating the conduct of these inmates on “death row.” If the death sentence is eliminated, then so will death row. Inmates with life sentences for heinous crimes will be mixed with the general population and the higher degree of control will be lost.

9. There is simply no way for the average person to even come close to imagining what life is like inside a high-security prison for a long-term inmate who is not on death row. Such a prisoner has only one blank day after another, lived with monotony within walls of stone. The only companions for such an inmate are others who are similar or worse in their outlooks on life. All there is to look forward is a stunted, depraved life without any material comforts or normal physical outlets for passion.

10. A person who is sentenced to life in prison is stripped of any expectation of peace or serenity, ever again. As Milton said, “All ye who are without hope enter here.” I question whether a life sentence is in any way better than a death sentence. With a life sentence, life is ripped and torn away daily, until it is only a prolonged version of a death sentence. In “the joint” death walks daily side by side with life. This is how it always has been and always will be, even in the most humane prisons. The pathological horror of each day is simply inconceivable, especially to the honest, well-meaning people who spend the most time protesting the death penalty.

Okay, so now you know most of the reasons I am in favor of the death penalty. Now it’s time to look at the reasons I object to the death penalty as it is presently administered. Part Two of this post will follow.

Dash Cams and Black Boxes

15 Mar

From www.mcgeepost.com .Copyright © 2013 Michael H. McGee. All rights reserved. Please feel free to share or re-post all or part non-commercially, hopefully with attribution.

The comet which landed in Russia recently may have brought us some outer-space or at least space-age technology which has not really been considered up to now. The comet’s explosion revealed the hitherto unnoticed phenomenon of the wide-scale use of dashboard cameras in small-town northern Russia, one of the more remote places on earth.

Dash Cams are small video cameras that are placed on the dashboards or windshields of cars or trucks to record video on an endless loop, with or without sound. Dash cams can be powered either from the car’s cigarette lighter or from a built-in battery.

A trip to the web site http://www.nextag.com/dashboard-camera/products-html shows 202 varieties of dashboard cameras currently available for purchase in the US, or for that matter anywhere in the world. So far I’ve never seen a car with a dash cam, though. It’s time we got on board the Soviet dash-cam craze, and get each car equipped with its own dash cam. This new tech will be a boon for the electronics industry and for the auto insurance industry; and a burden for personal injury lawyers, who thrive on lengthy, expensive and uncertain examinations of who was at fault in an accident. (As a retired lawyer, I know how we work.)

According to http://www.zetronix.com/, which sells higher end dash cams, “when an auto accident occurs, in most of the cases it’s not clear which of the parties are at fault unless there is specific physical evidence of negligence, which is very rare. In a typical case the only way to really find out what happened is when one of the parties involved in the collision has a dash cam. A dash cam will take any ambiguity from any accident. Every car, truck and SUV on the road should have a dash cam. They are inexpensive and can save you thousands if not tens of thousands of dollars if there is ever an accident.”

Additionally, when a driver has a dash cam, it’s more likely the person will pay closer attention to what they are doing while driving, knowing their movements are being recorded, even if voluntarily. It’s important that the dash cam does not have a viewing screen visible to the driver (except when backing up) or this will become one more distraction like texting.

Ultimately we’ll move this discussion to talk about mandatory automobile “black boxes,” which will be an even greater motivator for drivers to take care of safety while driving. Voluntary measures are good, yet are not enough to motivate anyone other than geeks and safety freaks.

We need to treat each automobile accident that involves personal injury or death as seriously as an airplane accident. We need to have first responders who have their own cameras, which are capable of quickly making an evidentiary quality video of the details of each serious crash scene before the vehicles are moved. The involved vehicles and their dash cams need to be impounded into a secure warehouse for meticulous examination and cataloging by an “Auto Safety Board.” The dash cams of any vehicles which may have recorded any part of the accident should be taken into temporary custody, for downloading and return to the owner.

It is much less safe to ride in a car than on an airplane. According to the National Highway Traffic Safety Administration, in 2011 in the US alone there were 32,367 deaths by auto accident, an average of 89 per day. More than two million persons were injured in auto accidents during the same year. We tend as a nation to totally ignore the deaths and mangling caused by motor vehicle accidents, and the implementation of new safety measures is a very low priority. Compared to the airways, though, the highways are a slaughterhouse. We ignore the slaughter and the maiming because we need automobiles so badly that we can’t even think about the possibility of death or maiming while driving.

According to the National Transportation Safety Board, in 2011, for the second year in a row, there were no fatal accidents involving scheduled air carriers or scheduled commuter operations. Each of the grand total of 485 US air fatalities in 2011 was in general aviation, including private light craft, charter, air taxi, air tour, and air medical operations. Yet how many people have a “fear of flying?”

Where are our priorities? Here in the twenty-first century we have the technological means to monitor automobile travel more closely, yet we don’t have the will to do so. When will we ever learn?

Maybe today is not the day we’ll learn. It’s not as easy to get people to buy and use dash cams as it is for me to say it’s a good idea. As I was writing this someone said to me, “So does this mean you’re going to get a dash cam for your car?” I actually froze, clamped up, at this question. Desperate, futile thoughts flew through my mind.

I’m a safe driver, I thought. If I get a dash cam, does this mean I’m preparing to be involved in an accident? It’s kind of grisly, came my unbidden thoughts, for me to gird myself for an accident I never expect to have. And I’ll be the only one out there who has one, which will make me look weird and even more like a nerd than I already am.

It was only later that I came out of my acutely self-centered panic thoughts. Then I realized that having a dash cam might help create an evidentiary record if any driver around me was involved in an accident which was within the view of my dash cam. I really don’t mind the idea of being called as a witness if I see or record the details of a serious auto accident. Civic duty, and all that.

In addition, I realized that there are a lot of crimes committed in and around cars, including car-jacking. If a potential attacker saw that there was a video camera in the car he might be a little less eager to approach the car for purposes of violence. And if he failed to notice the camera, there might be a very good face-shot of the perpetrator recorded on video.

Great Britain has courageously taken the lead in installing Closed Circuit TV (CCTV) cameras on street corners and around public parks and other areas. These cameras are typically up high and have wide angle lenses. They have had a dramatic effect in reducing street crime and in helping to track the movements of fleeing criminals. New York and other US cities are beginning to get on the CCTV bandwagon, though in the US we are trailing far behind our neighbors across the pond. Dash cams are simply a smaller version of a CCTV camera.

One problem with endless-loop dash cams is that even with a wide-angle lens the current crop of cameras can only see maybe a field of 120 degrees around the front of a car. So they won’t help much if the accident involves the side or rear of the car. A way of improving the field of vision would be to hard-mount the camera near the center of the car, about where the dome light is.

Even better would be to have two cameras, one pointed forward and one to the rear. The rear camera could be also connected to a screen visible to the driver, so the driver can get a better view of what’s going on behind the car; like a kid in the road or a tight parking situation. Some upscale cars already have a rear-view camera, but it’s mounted too low to pick up all the area around the rear of the car.

In addition to providing evidence, dash cams might easily record some really peculiar behavior on the road, or some catastrophically stupid street activities, which might go viral on You Tube. Get your fifteen minutes of fame, folks!

Even with the utterly minuscule chance of death in an airplane accident in the US, all aircraft are required to have sealed black boxes on board, which can be retrieved and read by investigators after an air crash. It’s likely that the data which has been retrieved by these black boxes from crash sites over a period of many years has substantially contributed to the now nearly perfect safety record of aircraft.

Up until the twenty-first century we really didn’t have the technology available to even consider putting a black box in each automobile. Building black boxes was too expensive, the component parts were too big, and they required too much power to operate. Back in the 1990’s proposed boxes would loop for only twenty seconds; twenty minutes is a feasible loop time with current technology. Now we have very small electronic parts which are inexpensive and use little power. It’s time to put our most advanced micro-electronics to work on the vast problem of highway safety. Mass production will dramatically reduce the cost per unit.

There’s been a lot of discussion of the use of “black boxes” on cars, similar to their present use on aircraft. Some people were against using these black boxes because they could end up as evidence in a car crash lawsuit, and also could violate privacy. These types of concerns seem unwarranted, since the state has always had the power to impose conditions on the drivers of motor vehicles in the interest of public safety.

The black boxes on aircraft are multipurpose devices. They record among other things technical data and pilot conversations for a looped period of twenty minutes just prior to a crash. A conversational monitor in a private vehicle would definitely violate privacy, but airline pilots surrender their privacy when on the job.

Automobile black boxes could include a locational monitor such as a transponder which would send out a position and emergency signal in the event of a crash. They could include a speed and steering movement indicator which would show spatial details in last five or ten minutes before a crash, and some way of indicating if a vehicle system failure was involved in the crash. A record of longer-term movements would be helpful in alcohol related crashes, or when people are asleep at the wheel or joyriding. Short last second movement tracking would be helpful in seeing who swerved and who applied brakes, etc., just before the accident.

In addition, drivers will definitely be more careful while driving when they know their poor driving or carelessness will be on record if they are in an accident or stopped for a traffic violation.

Today auto makers currently have the technology to make auto black boxes, and they do in fact install them on some vehicles without the knowledge of the owner.

Since at least 1998 the National Highway Traffic Safety Administration has been in possession of technology which amounts to black boxes. They call these devices EDRs (Event Data Recorders). In 1998 and 1999, the agency denied petitions from its staff for rulemaking asking to require installation of EDRs in all new motor vehicles. The petitions were denied “because the motor vehicle industry was already voluntarily moving in the direction recommended by the petitioners”, and because the agency believed “this area presents some issues that are, at least for the present time, best addressed in a non-regulatory context.”

Didn’t anyone learn from the struggle over seat belts? In the 1960’s visionaries like Lee Iacocca started offering seat belts to new car customers on a voluntary basis. Almost nobody volunteered to pay the small extra price, even though evidence showed that seat belts were effective in reducing death and injury in auto accidents. Seat belts didn’t really start being used until after the first seat belt law was passed, a federal statute which took effect on January 1, 1968. Now we really couldn’t live without seat belts.

The lesson is that no one, I mean no one, is going to buy a black box and have it installed on their car voluntarily, in a “non-regulatory context.” Either black boxes are required by law, or they really won’t exist at all.

When the National Highway Traffic Safety Administration uses the term EDR (Event Data Recorder), they are referring to a device installed in a motor vehicle to record technical vehicle information for a brief period of time before, during and after a crash. The NHTSA describes their EDR devices very specifically. For instance, EDRs may record (1) pre-crash vehicle dynamics and system status, (2) driver inputs, (3) vehicle crash signature, (4) restraint usage/deployment status, and (5) post-crash data such as the activation of an automatic collision notification (ACN) system. NHTSA EDRs do not include any type of device that either makes an audio or video record, or logs data such as hours of service for truck operators. EDRs are devices which record information related to an “event.” In the context of this site the event is defined as a highway vehicle crash.

We must use all the technology that is available, at the cutting edge, to improve the safety of highway travel. An endless loop black box will freeze-frame when the car is stopped. It will stop also when a car is hit and decelerates, flies through the air and crashes, and when it rolls or turns over. The police could even have devices to remotely read the black boxes during a traffic stop.

Inside the black box will be an attitude recorder, showing the pitch and roll of the vehicle for the last twenty minutes. There will also be inside, a recorder showing all steering wheel movements and speed changes for the last twenty minutes.

The black box must be sealed so that it cannot be tampered with by the driver. The data must be retrievable and viewable by the police when a traffic stop is made or at an accident site. A law must be passed making a black box speed display admissible in court as evidence of speeding.

The courts could require a person convicted of Driving Under the Influence or reckless driving to waive his right of privacy as a condition of receiving any sort of driving privileges during the term of his or her probation. Then a dash cam or black box which records the face and the speech of the driver could be hard installed in the car. The person could be hauled in on visual or oral evidence of drunkenness, even without waiting for a collision to occur.

Also, why should police be the ones to investigate auto accidents? They should be involved only at the outset to determine if criminal activity such as speeding or DUI is suspected. A rapid-response auto accident investigation team of civilian specialists should then be called to the scene. These civilians, like CSI techs, should be highly trained in accident reconstruction and the evidentiary handling of black boxes, and should have all of the latest equipment. This would free up the police from a lot of activity which has very little to do with law enforcement.