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Death Penalty? Still Up For Debate

November 12, 2014

On Monday, November 3, TJSL’s Criminal Law Society, the Black Law Student Association, and the National Lawyers Guild held a panel discussion on the death penalty in America. Participants (pictured left to right below) were; Investigator, Robert Dean, from the San Diego County District Attorney, Hon. Rudy Gerber (Ret.), Breda Daly, Esq. from the San Diego County District Attorney, Professor John Cotsirilos (USD Law), and our own, Professor Marjorie Cohn.

The participants laid out their positions in typical fashion. The proponents gave testimony about horrible criminals and their impact on victims’ families; while opponents laid out an argument stating that because the western world and other progressive societies do not impose the death penalty on their criminals, as a matter of policy, neither should America.

The proponent’s argument:

Investigator Dean has been a police officer for 40 years. His argument for the imposition of the death penalty stems from his experience witnessing man’s inhumanity to man. He showed a power point displaying some of the many death penalty murders he investigated during his career.

DA Daly opened up about the legal hurdles to imposing the death penalty; namely, that the defendant must meet certain criteria to be charged as such. The defendant must commit murder, and there must be a special circumstance allegation for him or her to be charged with the death penalty. In only two percent of the first-degree murders in California is the death penalty sought. Daly’s chief argument is the defendants who are charged are the worst of the worst; often socio paths, who relish their criminal acts and have no remorse for their “brutal, heinous acts.” She also offered that there are currently 738 people on death row; in 500 or more of those persons charged with the death penalty, there is no issue of guilt, only an issue of punishment. Moreover, there are 16 people who are cleared by SCOTUS to be executed, but the Attorney General is holding up the process because she (AG Harris) is allegedly not moving forward on the issue surrounding the “one drug cocktail” for executions.

The opponent’s argument:

Retired Judge Gerber stated he is a convert against the death penalty. In fact, he worked on the Arizona revision of the death penalty law, with Justice O’Connor, before she served on the Court. In the three main arguments that were proposed in favor of the death penalty, Gerber believes they do not hold water because of the following:

1) The philosophical argument; an eye for an eye. Gerber says this is repudiated repeatedly because we do not take one life for every life that is killed (for example, in crimes of negligent homicide, manslaughter and second degree murder).

2) The empirical argument; where the sentence serves as a deterrent. Gerber states that in over 100 studies the conclusion is that there is no deterrent effect at all on criminals and recidivism. In fact, criminologists believe that four things are necessary for deterrence: the punishment must be swift, certain, painful, and done in public. None of these things are true of the death penalty in America.

3) The therapeutic relief for the victim’s family; there is such a long delay between sentencing and the imposition of the punishment. The wound caused by the crime is reopened to the victim’s family when the criminal is sentenced and executed. Thus, there is no therapeutic effect at all.

Professor Cotsirilos believes the death penalty is a failed policy in the United States. He further his believes by saying that because very country, republic, and democracy in the western world has rejected the death penalty, the public would be safer if the money spent on the death penalty was appropriated in other more tangible ways to prevent crimes. He explains that the death penalty is a “complete violation of everything we stand for in this country” and offers the following in support of the opinion: economic status often determines what type of defense you receive as an accused individual; race and politics are big factors. In fact, in certain counties in California you will be very unlikely to be prosecuted for the death penalty (like San Francisco or San Diego), but even 40 miles north of San Diego you would be more likely to be prosecuted for the death penalty.

The 23 students who attended the panel encompassed a broad cross section of proponents and opponents to the punishment. The question and answer session was lively and informative. Overall, the death penalty will remain a strongly debated issue in this state. Professor Cohn cited statistics that the support is falling, but remains in the majority.