[Peace-discuss] FW: [nppryan] FW: Teaching Against the Death Penalty
Boyle, Francis A
fboyle at illinois.edu
Sat Jun 9 16:46:38 UTC 2018
In accordance with Anglo-American Common law, there is no "human being" who can be murdered unless and until a fetus is born and born alive. Fab.
Francis A. Boyle
Law Building
504 E. Pennsylvania Ave.
Champaign IL 61820 USA
217-333-7954 (phone)
217-244-1478 (fax)
(personal comments only)
-----Original Message-----
From: C G Estabrook [mailto:cgestabrook at gmail.com]
Sent: Saturday, June 09, 2018 11:24 AM
To: Boyle, Francis A <fboyle at illinois.edu>
Cc: Peace-discuss List (peace-discuss at lists.chambana.net) <peace-discuss at lists.chambana.net>
Subject: Re: [Peace-discuss] FW: [nppryan] FW: Teaching Against the Death Penalty
Importance: High
A compelling argument, Francis. Does it also apply to abortion?
> On Jun 9, 2018, at 11:17 AM, Boyle, Francis A via Peace-discuss <peace-discuss at lists.chambana.net> wrote:
>
> From: Boyle, Francis [mailto:FBOYLE at LAW.UIUC.EDU]
> Sent: Sunday, October 26, 2003 10:02 AM
> To: 'nppryan at compar.com' <nppryan at compar.com>
> Subject: [nppryan] FW: Teaching Against the Death Penalty
> Importance: High
>
> Over my past two decades as a teacher, it has oftentimes proven to be the case that the lectures I have delivered in the classroom returned several years later in order to stare me directly in the face. Thus, in April of 1994, I was asked by one of my former first year criminal law students, Ms. Karen Conti (Class of 1986) of the Chicago law firm of Adamski & Conti, to become Co-Counsel with her in order to prevent the pending execution of convicted mass-murderer John Wayne Gacy by the State of Illinois. Pursuant to my recommendation, we obtained a request for a stay of execution on his behalf from the Inter-American Commission on Human Rights that was directed to Governor Jim Edgar on the grounds that the method of execution by lethal injection would constitute torture. Governor Edgar announced that he would ignore this request. Mr. Gacy declined my offer to try to get this request enforced in federal court.
>
> Amidst a public circus and a news media feeding frenzy, Mr. Gacy was executed on May 10, 1994. To the best of my knowledge, however, this was the first time ever that the Inter-American Commission on Human Rights intervened to prevent an execution in the United States on such grounds. See 33 Int'l L. Mats. 838 (1994). Hopefully, this precedent can be used to prevent the execution of some other human being in the United States in the future.
>
> Certainly, in the estimation of the U.S. news media, Mr. Gacy seemed to be the paradigmatic example of why there should be a death penalty in America. Even the usual opponents to capital punishment kept their distance from Mr. Gacy and did not do much more than go through the motions to oppose his execution. Apparently, on the supposition that there were more worthy candidates on death row in Illinois, they did not want to expend much capital or credibility on Mr. Gacy's behalf. Fortunately, that was not the way Ms. Conti saw the matter. She threw herself heart and soul into the cause of preventing Mr. Gacy's execution. Going all out to stop the execution of John Wayne Gacy proved to be the "acid test" of principled opposition to the death penalty in America today.
>
> This is not the first time that I have worked unsuccessfully to prevent the execution of a human being, and I am sure it will not be the last: State sponsored murders of human beings in America must be stopped. But if we as teachers are not prepared to stop it with someone like Mr. Gacy, then we are deluding ourselves. We become nothing more than so-called country club liberals who enjoy spouting off our commitments to high-sounding principles over cocktails and hors d'oeuvres to like-minded people at faculty clubs.
>
> Human life must be valued and protected from the State under all circumstances. According to Article 3 of the 1948 Universal Declaration of Human Rights: "Everyone has the right to life, liberty and security of person." John Wayne Gacy had the exact same right to life as the rest of us. So long as the State can kill the Gacys of the world, it can kill any one or more of us.
>
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> File:5.2\deathpen.#2
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> Francis A. Boyle
> Law Building
> 504 E. Pennsylvania Ave.
> Champaign, IL 61820 USA
> 217-333-7954 (voice)
> 217-244-1478 (fax)
> fboyle at law.uiuc.edu
> (personal comments only)
>
>
>
> -----Original Message-----
> From: Boyle, Francis
> Sent: Thursday, June 26, 1997 9:15 AM
> To: 'Multiple recipients of list'
> Subject: Teaching Against the Death Penalty
>
>
> TEACHING AGAINST THE DEATH PENALTY:
> THE EXECUTION OF JOHN WAYNE GACY
>
> by
>
> Francis A. Boyle
>
> Professor of Law
>
> During almost two decades of teaching, one of the many subjects I taught for several years was substantive criminal law to about 70 first year law students. Each semester I would set aside in my course about two weeks of class sessions to deal with the death penalty. I believe that at the outset of my course a majority of the students probably supported the death penalty for one reason or another. Therefore, the task I always set for myself over those six or so class sessions was to turn that majority into a minority and thus to produce an abolitionist majority.
>
> During the course of this process, there were a number of arguments put forth by my obviously intelligent students to justify the death penalty. First came their argument based on deterrence. As we know, however, there is no unequivocal empirical evidence to prove that the death penalty deters anything. Indeed, over 50% of all homicides committed in the United States of America are what we law professors call "crimes of passion," which, by definition, cannot be deterred in the first place. In these cases, people kill in the heat of emotional and physical passion when the mental calculations presumed by the theory of deterrence are irrelevant. Likewise, a large percentage of homicides occur under the influence of alcohol when mental reasoning processes are substantially impaired and thus cannot be deterred.
>
> To the contrary, what little empirical evidence we have seems to indicate that in fact the imposition of the death penalty has a brutalizing effect on the target population by increasing the number of homicides that occur after an execution. In other words, more lives can be saved than lost by abolishing the death penalty. Since the argument for deterrence as a theory of punishment is based upon such utilitarian calculations going all the way back to Jeremy Bentham, considerations of utility demand the abolition of the death penalty.
>
> In any event, the United States Constitution requires proof beyond a reasonable doubt before someone can be found guilty of a crime. A defendant is presumed to be innocent until proven guilty beyond a reasonable doubt to the satisfaction of twelve men and women sitting on a jury. Consistent with that overriding constitutional philosophy, those who support the death penalty must prove beyond a reasonable doubt that the imposition of the death penalty (1) deters homicides; and (2) saves more lives than it takes. Clearly, the proponents of the death penalty have failed to discharge this constitutional burden of proof. Yet, we in the United States continue to execute people when we know that there exists more than a reasonable doubt that the death penalty does not deter homicides, but indeed encourages homicides.
>
> Moreover, we also know that many innocent people in the history of this country have been sentenced to death and that many innocent people have been executed. It is beyond a reasonable doubt that the death penalty in the United States kills innocent people. Therefore, consistent with the overriding constitutional philosophy of proof beyond a reasonable doubt in substantive criminal law, we must abolish the death penalty.
>
> Furthermore, it is beyond a reasonable doubt that historically in this country the death penalty has been disproportionately imposed upon People of Color and the Poor. This violates the fundamental guarantee found in the Fourteenth Amendment to the United States Constitution which provides that everyone in this country is entitled to the Equal Protection of the Laws. The death penalty has always discriminated against People of Color and the Poor, and this is due to the intrinsic nature of American society. Namely, whether we like it or not, American society is inherently racist and capitalist. For this reason, the death penalty in America has always discriminated against People of Color and the Poor and will continue to do so as long as we remain a racist and capitalist society.
>
> Due to the fact that America has always been a heterogeneous society consisting of men and women drawn from different races whose ancestors came from other countries around the world, or else were brought here against their will (e.g., African Americans), or else were already here when the rest of our ancestors arrived (e.g., Native Americans), I doubt very seriously that we will ever be able to eliminate all vestiges of racism and racial discrimination from America. And I make that statement with a great deal of regret. Nevertheless, I believe it to be true. America's inherent racism has always been manifest in the disproportionate imposition of the death penalty on African Americans, Latinos, and other People of Color in this country.
>
> Similarly, America is a capitalist society run on the principle: "You get what you pay for." This is true for education, housing, health care, justice, and just about anything else. There is a direct correlation between the amount of money you can pay and the quantity and quality of justice you can obtain in America. I make that statement based upon my experience of having practiced law for over seventeen years, including stints with three large corporate law firms.
>
> Recent confirmation of this proposition can be found in the double-murder trial of O.J. Simpson. He got a lot of "justice" because he had a lot of money. Indeed, the prosecutors purposely chose not to seek the death penalty in the first place for what was obviously a capital offense under California law.
>
> By comparison, those who are charged with first-degree murder are typically left to the vicissitudes of the public defender's office -- where they exist. This is not to call into question the competence and integrity of public defenders. But I am sure most public defenders would agree that they are overworked, understaffed and underpaid. How can we in the United States allow the most critical issue our courts are ever called upon to decide--life or death--to be determined on the basis of anything but the best legal representation that can be provided. Yet, the contrary happens every day here in the United States of America.
>
> I always found it particularly distressing when my students would then argue that it is cheaper to execute a convicted murderer than to keep him or her alive. Under the pernicious influence of the so-called Law and Economics Movement originating out of the now reactionary University of Chicago (where I attended college), arguments based upon principles of economic efficiency, utility, profit and outright greed have come to supplant considerations of justice, fairness, and compassion at an increasingly larger number of law schools in America today. Nevertheless, the statistics prove this economic argument in favor of the death penalty to be false as well. It is far more expensive to execute someone than to keep that individual alive for the rest of his or her natural life in prison.
>
> Indeed, the leading econometric study of the death penalty -- Ehrlich, The Deterrent Effect of Capital Punishment: A Question of Life and Death, 65 Amer. Econ. Rev. 397 (1975) -- found in part that the murder rate is negatively related to the labor force participation rate and positively to the unemployment rate. Hence, the rate of murder and other related crimes can be reduced through increased employment and earnings opportunities. Thus, I argued to my first year law students, perhaps the most effective way to prevent homicides was to make it a serious federal crime for government decision-makers to pursue economic policies that they know will increase the rate of unemployment in the United States.
>
> Furthermore, as a teacher I always objected to the immoral premises that underlie the economic argument in favor of the death penalty. The State has absolutely no right to take a human life because it is allegedly cheaper to kill that person than to keep him or her alive for any reason. Otherwise, the State would have a license to kill anyone that it does not deem to be economically productive or efficient: premature infants in neonatology wards; paraplegics and quadriplegics; the mentally retarded; the physically handicapped; the psychologically disturbed; the welfare mother; the senior citizen with Alzheimer's disease, etc. There would be no end in sight to the human carnage if America were to make decisions on whether the State should put people to death for economic reasons. If this self-styled principle of economic efficiency is allowed to prevail in America, then our society will become not much different from Nazi Germany where the terror of execution was used to produce a master race. In other words, we would be using the principle of economic efficiency to exterminate all those whom a certain group of us believe do not live up to some minimal criteria for existence.
>
> The Second World War and the Nazi Holocaust against the Jewish People, the Slavic Peoples--such as Russians and Poles--as well as Gypsies was the ultimate working-out of this philosophy: the so-called Final Solution. Yet, we here in the United States use the death penalty as our "Final Solution" to the most serious problems that confront our society today--poverty, racism, unemployment, drug abuse, etc. For example, a few years ago our so-called drug czar, William Bennett, publicly called for the beheading of drug dealers.
>
> Our government decision-makers wield the death penalty as the ultimate form of state terrorism in order to keep the enormous injustices, inequalities, hypocrisies, and deficiencies of American society within what they believe to be tolerable limits. This calls to mind the critique of the Reign of Terror during the French Revolution put forth by Edmund Burke, the great conservative: At the end of every vista, one sees nothing but the gallows. That is an incredibly accurate description of America today. Yet, somewhat paradoxically, Burke has always been the great philosophical hero to the conservative movement in the United States.
>
> The final argument in support of the death penalty goes back, supposedly, to the Bible. In other words, the Law of the Talon--an eye for an eye, tooth for tooth, stripe for stripe, etc. Of course, you cannot find that argument in the New Testament, but to the contrary a philosophy that is premised on a diametrically opposed operational rationale: turn the other cheek, give the other cloak, walk the extra mile, etc. This is not to argue that the New Testament is better or worse than the Old Testament on this or any other matter. But rather, that those who cite the Bible in support of the death penalty conveniently overlook the philosophy of love, forgiveness and compassion preached by Jesus Christ and his immediate disciples.
>
> Thus, when publicly asked his opinion about the pending execution of an adulterous woman by stoning as required by law, Christ retorted: "He who is without sin among you, let him throw a stone at her first." Certainly "Christian" proponents of the death penalty in America should ponder the meaning of this injunction. After all, Christ himself was the ultimate victim of capital punishment.
>
> Nevertheless, the Law of the Talon did not originate with the Bible, but rather with Hammurabi, the first great king of Babylon, around 1700 B.C. At that time, Hammurabi promulgated what has come to be known as Hammurabi's Code, the essence of which was the Law of the Talon. Yet, originally, Hammurabi intended this principle to be progressive, not regressive. The Law of the Talon was designed to establish some degree of proportionality between the punishment and the crime.
>
> Before Hammurabi's Code, in the customary practice of ancient Babylon, there was no necessary requirement of proportionality between punishment and crime. Rather, a system of blood feud based upon revenge prevailed whereby the victim's family would wreak vengeance against the perpetrator or his family that oftentimes was completely disproportionate to the original offense. Hammurabi wanted to take the enforcement of criminal law out of the hands of private individuals and put it into the hands of the state to prevent the private anarchy of the blood feud. In addition, he also wanted to institute some degree of proportionality between the punishment and the crime, and thus to impose some humanitarian limitations upon the enforcement of criminal law penalties.
>
> Hammurabi's Code was promulgated around the year 1700 B.C. by the ruler of one of the Middle Eastern world's first great military empires. And yet today, almost four millennia later, we here in the American Empire still have people citing Hammurabi's Law of the Talon to justify the death penalty despite the fact that we are supposed to be a popular democracy with a commitment to the Rule of Law. Indeed, here in the United States of America, we instituted a Constitution for all the people over 200 years ago. The Eighth Amendment to that Constitution prohibits the infliction of "cruel and unusual punishments." It seems to me that our degree of civilization should have improved considerably beyond the days of Hammurabi to the point that the death penalty has indeed become a cruel and unusual punishment. This conclusion becomes crystal clear when America's practice of capital punishment is contrasted with the abolitionist policies of so many Western liberal democracies that we like to compare ourselves to. It is about time for the United States of America to relegate this barbarous remnant of ancient times to the dustbin of history.
>
> At the end of spending six or seven class days patiently going through all the arguments for and against the death penalty with my 70 or so first year law students, almost every year it was the case that I was able to turn a tentative majority in favor of the death penalty into a solid abolitionist majority. Both at the time and in retrospect, this reversal of opinion has always given me great hope that some day the majority of the American people who supposedly support the death penalty can be educated into becoming an abolitionist majority.
>
> In this regard, the U.S. news media all tell us that a solid majority of the American people support the death penalty. I submit this is because the news media have constantly told the American people that a majority of them support the death penalty and so a majority of them do indeed support the death penalty. The U.S. news media's coverage and presentation of the death penalty in America constitutes the classic example of a self-fulfilling prophecy.
>
> As someone who reads five or six newspapers almost every day except when I am on the road, it seems to me that the news media have purposefully failed to present the abolitionist side of the death penalty debate to the American people. In the United States the editorial party line of most media seems to be that since a majority of the American people support the death penalty, there is not much point in devoting too much time, too much energy, or too much coverage to the abolitionist side of the debate. This self-induced tautology is critical because the United States Supreme Court has indicated that so long as a majority of the American people continue to support the death penalty, then it cannot be said that the death penalty is cruel and unusual punishment that is prohibited by the Eighth Amendment to the United States Constitution.
>
> Nevertheless, the U.S. news media is itself protected by the First Amendment to that same Constitution. Therefore, because of the pivotal role played by the news media in shaping public opinion, I would submit that the news media have a constitutional responsibility to cover the abolitionist side of the debate over the death penalty on a level of complete equality with those who favor the imposition of the death penalty -- which they have so far failed to discharge. On this crucial question, whether rightly or wrongly, the Supreme Court has deferred to the judgment of U.S. public opinion. Therefore, it is up to those who shape U.S. public opinion to make sure that both sides of the death penalty debate are adequately, fairly, and equally presented. Thus, it must be the task of teachers not only to educate their students and the American people to the abolitionist point of view, but also to explain to the U.S. news media why they have a constitutional obligation to provide equal, adequate, and fair coverage of the abolitionist case against the death penalty.
>
> Over my past two decades as a teacher, it has oftentimes proven to be the case that the lectures I have delivered in the classroom returned several years later in order to stare me directly in the face. Thus, in April of 1994, I was asked by one of my former first year criminal law students, Ms. Karen Conti (Class of 1986) of the Chicago law firm of Adamski & Conti, to become Co-Counsel with her in order to prevent the pending execution of convicted mass-murderer John Wayne Gacy by the State of Illinois. Pursuant to my recommendation, we obtained a request for a stay of execution on his behalf from the Inter-American Commission on Human Rights that was directed to Governor Jim Edgar on the grounds that the method of execution by lethal injection would constitute torture. Governor Edgar announced that he would ignore this request. Mr. Gacy declined my offer to try to get this request enforced in federal court.
>
> Amidst a public circus and a news media feeding frenzy, Mr. Gacy was executed on May 10, 1994. To the best of my knowledge, however, this was the first time ever that the Inter-American Commission on Human Rights intervened to prevent an execution in the United States on such grounds. See 33 Int'l L. Mats. 838 (1994). Hopefully, this precedent can be used to prevent the execution of some other human being in the United States in the future.
>
> Certainly, in the estimation of the U.S. news media, Mr. Gacy seemed to be the paradigmatic example of why there should be a death penalty in America. Even the usual opponents to capital punishment kept their distance from Mr. Gacy and did not do much more than go through the motions to oppose his execution. Apparently, on the supposition that there were more worthy candidates on death row in Illinois, they did not want to expend much capital or credibility on Mr. Gacy's behalf. Fortunately, that was not the way Ms. Conti saw the matter. She threw herself heart and soul into the cause of preventing Mr. Gacy's execution. Going all out to stop the execution of John Wayne Gacy proved to be the "acid test" of principled opposition to the death penalty in America today.
>
> This is not the first time that I have worked unsuccessfully to prevent the execution of a human being, and I am sure it will not be the last: State sponsored murders of human beings in America must be stopped. But if we as teachers are not prepared to stop it with someone like Mr. Gacy, then we are deluding ourselves. We become nothing more than so-called country club liberals who enjoy spouting off our commitments to high-sounding principles over cocktails and hors d'oeuvres to like-minded people at faculty clubs.
>
> Human life must be valued and protected from the State under all circumstances. According to Article 3 of the 1948 Universal Declaration of Human Rights: "Everyone has the right to life, liberty and security of person." John Wayne Gacy had the exact same right to life as the rest of us. So long as the State can kill the Gacys of the world, it can kill any one or more of us.
>
>
>
>
>
>
>
>
>
>
> File:5.2\deathpen.#2
>
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