Tuesday, December 13, 2011

Legal Issues of Death Penalty

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Legal Process of Death Penalty

To be eligible for a death sentence, a defendant must be convicted of first-degree murder and meet at least one of the twenty aggravating factors. Each state started out with having seven, but since then the legislature has added 1 more. If a judge or jury finds the defendant eligible for death, then a sentencing authority must weigh aggravating factors against any number of so-called “mitigating” factors, such as when a defendant has clear history of criminal activity. If there are no sufficient mitigating factors, then the court must sentence the defendant to death. This happens to comply with the U.S. Supreme Court’s decision in Furman v. Georgia and that decision’s progeny. The 17 decision in Furman held that capital punishment, as it was administered in Georgia and Texas, constituted cruel and unusual punishment in violation of the Eighth and Fourteenth amendments because it could be arbitrarily applied. That decision effectively was not valid with the death penalty. Other decisions have held that a state’s sentencing scheme must narrow the class of people eligible for the death penalty. The statutes also must give judges and juries clear guidelines for determining an appropriate sentence (Chambers).

A list of some of the aggravating factors include killing a police officer or firefighter while they were on duty, murder of a department of corrections victim, first degree murder, murder of an individual while hijacking a plane, train, ship or bus, killing someone under the age of twelve or over the age of sixty, murder of a physically or mentally disabled person, an intentional murder involving torture, and murder of a victim that had an order of protection against the defendant. These are just a few of the twenty factors included to possibly make the defendant eligible for the death penalty (ACLU.org).

The process by which a defendant is found guilty to have the death penalty on them is very long and has many processes. The first process is aggravation. This is where the jury may find that the defendant’s statements are false. It is also when the defendant remains silent and does not show any remorse for what he/she is convicted of, and also that the defendant violates the due process law. The next process is the appeal. This is where years of delay violate amendments from the defendant. Also the weighing out of whether life without parole is even a possibility compared to the death penalty. A factor also determined here is having to make sure the supreme court doesn’t violate any of the defendants rights, because no matter how people feel toward the defendant (anger, hurt, fear) they have to be given the same rights as written in the constitution. You next get into the constitutionality of the death penalty. This is where the weighing out all the possibility if anything may violate the constitution i.e. judgement based on race. This is also where the decision is made about if evidence of mitigation is under-weighed or possibly over-weighed, and where a decision can not be fully made to persuade either the defendant or the prosecuting side (Defender).

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The next process is counsel. This includes ineffective assistance and right to self-representation. Ineffective assistance could include the counsel’s failure to present witnesses, proper evidence, and no investigative history. Self-representation is allowed by the 8th amendment and a defendant may do this is he/she feels they are competent to waive counsel and feel they can do a better job themselves.

After counsel, the fifth part of the process, double jeopardy comes into play. This is only where if the defendant has multiple murder convictions, and it is a decision to impose the death penalty on one case and it has nothing to do with the defendant’s other cases. Next process is eligibility. Most states have a non-weighing statutory scheme for determination of the penalty. Counsel needs more than one aggravating circumstance to determine the penalty, and they can not be prejudicial, and evidence must be proved beyond reasonable doubt. Counsel then turns to experts. Experts determine if a psychiatrist is needed to examine mitigating psychiatric conditions by not including persuasive evidence. After experts determine the conditions, the judge then sentences a memo concerning his/her reaction. His reaction may not include bribes to “fix” criminal cases, but it can include rejection to mitigation (Governor.)

Then the jury gets their say in the matter. Their process is by deliberations, instructions, selections, and unanimous voting. Deliberations include statements concerning the duration of life in prison, and any single error that could possibly block the death penalty. Instructions are evidence to the jury from surveys and the discussion of possibly of life without parole. Selection is the removal of a juror who says he “may not” vote for the death penalty, or the refusal to dismiss a pro-death penalty juror. Unanimous refers to the process of voting to include the death penalty on the defendant. There must be a unanimous vote from the jury to impose the death penalty.

The last two processes in determining if the death penalty will be passed are mitigation and prosecution. Mitigation is the process of determining if the evidence is any violation to impose the death penalty. Prosecution is the sentencing argument and cross-examination. It is just the argument that the jury should or should not recommend the death penalty and the evidence that they have, and any last feelings the prosecution may have towards not imposing the death penalty. The decision is the made by the judge

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