I have always been pro-death penalty. For my civil rights class yesterday, we were required to listen to a man named Bill Long talked about the Death Penalty. Now, to understand, he is anti-death penalty. For awhile, I listened to him and was like, okay nothing new there. Not to say he was not impressive, he was. Former Presbytirian pastor, former law professor, and current author, those credentials are good ones. But what really got me thinking was when he read the jury instructions from statute to sentence someone to death in the state of Oregon.
ORS 163.150 states: At the conclusion of the presentation of the evidence, the court shall submit the following issues to the jury:
(A) Whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that death of the deceased or another would result;
(B) Whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society;
(C) If raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased; and
(D) Whether the defendant should receive a death sentence.
I want to focus on (B) as he did. Immediately when he read it I thought, probable that the defendant would commit criminal acts of violence........Probably is 51% or better. So in law terms, the burden to sentence a man to death is less than to convict him of murder. And (2), it is based on speculation.
No one thinks that this person would be released to society. So where is the danger to society? Where is his threat? To prison society? Why would we be concerned with that?
What about the speculative nature of the question? How can anyone predict future wrongs or crimes? We can't. As a prosecutor it is very, very hard to get prior bad acts admitted in a trial---often times they are barred from the jury. But when a life is on the line, the jury can speculate what a caged human will do to society that could be harmful. Not beyond a reasonable doubt.......but more probable than not.
I have issues with this instruction. I don't like the underlying inference, that a person's life, or death, can be decided on speculative issues that may never arise. That a person's life can be based on a probablity, rather than a certainty.
I am not excusing what the person did, ie murdered someone, but rather, I am wondering where the dignity and fairness is.