I have a problem-solving habit I jokingly call “running it past my 1812 brain.” Some years ago I spent the better part of two years reading the London Times, cover to cover, including the classified ads, for the years 1812-1822. This archive, on which I took extensive notes, included the complete texts of debates in both houses of Parliament, transcripts of Old Bailey criminal trials, transcripts of Chancery court cases (civil), a blow-by-blow account of the War of 1812, the last three years of the Napoleonic wars, the diplomatic aftermath, and the social consequences of the early Industrial Revolution. This curious exercise, presumably unique, provides me with a rich store of knowledge from which to draw, and I often refer to it for a different perspective on some problem, either in my personal life or the world at large, which persistently defies efforts at resolution using the tools of the twenty-first century.
For narrative purposes I am framing this process as Robert Banks Jenkinson (1770-1828), Second Earl of Liverpool, speaking to a 2013 social issue. The arguments presented represent an attempt to employ the known attitudes of an early-19th-century conservative to insert a fresh perspective into a debate. There is a much quoted saying by the philosopher George Santayana that those who are ignorant of history are condemned to repeat it. In the same book, The Life of Reason, Santayana also remarked, “Memory itself is an internal rumour; and when to this hearsay within the mind we add the falsified echoes that reach us from others, we have but a shifting and unseizable basis to build upon. The picture we frame of the past changes continually and grows every day less similar to the original experience which it purports to describe.” A virtue of the transcripts of Parliamentary debates I read, as a narrative of the events and attitudes of 1812-1822, is their unfiltered and unedited similarity to the original.
At present there is an ongoing debate about whether to entirely abolish the death penalty in Oregon. It has been abolished and reinstated twice in my lifetime. At present we are under a moratorium from Governor Kitzhaber and are not conducting executions.There were 37 people on death row in 2011 awaiting the outcome of appeals. Two men have been executed since 1978, both for multiple murders. As Lord Liverpool had extensive experience with death penalty debates and also served for most of his long career as an advisor to the King or Prince Regent on whether to commute individual sentences, it seemed his opinion was worth considering.
Here, then, is Lord Liverpool.
I understand that the only crime susceptible to the death penalty in Oregon is murder with malice aforethought. There was considerable debate in my day about whether it was appropriate to execute men for less heinous crimes, for example, forgery and burglary, but not murder. In my capacity as advisor to the King I almost always recommended leniency, but I was cautious about repealing statutes. There were two reasons for this. First, the heinousness of a crime lies in the degree of damage to society and to individuals, something that can only be assessed on a case-by-case basis. My colleague Lord Castlereagh cited a case of a forged seaman’s will that would have left a grieving widow and orphans destitute, a deliberately malicious act far worse in intent and consequences than many murders. Second, reducing the penalty for one crime either forces reducing the penalty for acts of lesser severity, or treats lesser offenders unjustly.
My informant tells me that in the absence of the death penalty the maximum sentence for murder would be life imprisonment, with the possibility of parole, in most cases, after fifteen years. Evidently there are many people serving sentences as long or longer for nonviolent property crimes or selling illegal drugs, either because each offense was treated as a separate crime and the sentences do not run concurrently, or because they are repeat offenders. It appears to me that, with respect to meting out penalties in proportion to the seriousness of the offense, and using the courts to further the aims of a just and orderly society, the criminal justice system of Oregon is at least as much in need of a systematic overhaul as England’s was in 1812.
I am also informed that in Oregon and other states condemned murderers may sit on death row for years while their cases are being appealed, and that as much as a decade may elapse between the time a man is indicted for a capital offense and the day he is actually executed. Some states initiate an appeal against the condemned man’s will. I find this hard to believe. One of the main justifications for installing Prince George as Regent in 1810 was having someone empowered to review capital sentences, as there were, at that time, several hundred people (of whom only fourteen were actually executed) on death row, some of whom had waited as long as ten months to learn their fates. To a man, Spencer Perceval’s cabinet considered this cruel treatment. It does not seem any less cruel in the modern American context.
I confess I do not understand the concept of automatic appeal, save, perhaps, as make-work for attorneys. If a man is guilty and wishes to pay the penalty the state imposes for his crimes, is it not arrogant and disrespectful for the courts and the governor to gainsay him? In 1807 I had the difficult task of advising George III on whether to commute the capital sentence of a man whose conviction for murder, rather than manslaughter, rested on his own confession of having plotted a killing, when the facts suggested he had struck the victim in a fit of rage, without clear lethal intent. The man believed he deserved to die, and a jury of twelve men chose to believe his confession. To have gone against either would have been to usurp another man’s conscience and put myself above the law.
Image Credit
Image #1: “Lord Liverpool” Wikipedia Images. In the public domain.
Image #2: “The Death Penalty” by Truthout.org. Creative Commons Flickr. Some rights reserved.
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The Headline in the Morning’s paper calls into sharp focus the absurdity of automatic appeal against the convicted person’s wishes. The case of Gary Haugen, a convicted murderer whose execution is on hold because of the Governor’s moratorium on executions, is now before the Oregon Supreme Court to determine whether the Governor’s action is legal. “If death-row inmate Gary Haugen could personally address the Oregon Supreme Court justices who will decide his fate, he would simply say this: “Please. Follow the law.”
“Don’t follow emotion. Don’t follow politics,” Haugen, 50, said this week in a phone interview.
http://www.oregonlive.com/pacific-northwest-news/index.ssf/2013/03/gov_john_kitzhabers_reprieve_o.html
Lord Liverpool thinks that Gary Haugen has a better understanding of the legal respoinsibilities of an elected official than Governor Kitzhaber.
Thanks for this thought-provoking article and the interesting discussion. This is an important issue in California as well. Here we have over 700 people on death row; in some cases they have been there for more than 20 years.. One reason for the seemingly-endless appeals is the scarcity of appeals court judges and death penalty defense lawyers. I agree that the entire sentencing structure needs to be overhauled, to say nothing of police interrogation procedures and other factors that contribute to the parade of shocking cases of people found to be innocent years after they have been condemned to death.
There is no shortage of people qualified to be appeals court judges or attorneys willing to take on death penalty cases. What’s short is the money to pay them, because society seems more interested in paying to lock up people than in paying to determine whether they actually deserve to be locked up.Another perversity of the system that contributes to the massive injustice you describe is the common practice of bringing far more serious charges than are warranted by the evidence or could be proved in court, in order to coerce a confession by offering a plea bargain. The criminal who is actually guilty as charged, in most cases, will accept the plea bargain, as will the person who is guilty of the lesser charge. In the case of aggravated murder this ensures that the person who ends up on death row is more likely to be innocent of the crime for which they were charged than the person who plea bargains and receives a long prison sentence. I say “of which they were charged” because the presence of a lot of inconclusive circumstantial evidence often points to some criminal activity and the fault of the prosecution lies in presenting good evidence of, say, kidnapping and statutory rape, as if it were conclusive evidence of murder, and not seeking or presenting evidence that two criminals were involved.
I find it interesting that in Liverpool’s day 10 months was considered too long a wait for a determination of appeals. I think the appeals process is ludicrously prolonged, yet then an Innocence Project comes along and finds someone who is innocent . . . it’s not a simple situation.
I’m personally leaning more toward approving the death penalty only in cases where the murder or other ghastly crime was witnessed and clear beyond any refutation . . . as in the case of Kip Kinkel or other mass shooters. I think of a man in CA who raped a young woman and then chopped off her arms, leaving her along a road to die. He eventually got out of jail, moved to Florida, and murdered a prostitute. I do think that there are heinous things that people do that forfeit any right they have to continue to live and be maintained at society’s expense. I would rather see the money spent on helping those who obey the law — education, poor relief, health care, etc.
The relative weight of sentences in our judicial system definitely needs attention. Our laws about automatic sentencing that take the determination out of the hands of a judge and away from any case by case consideration negate the idea of a judge. It’ s a response by literal minded people who don’t trust anyone and only understand rigid rules, not justice or context.
I’d amend ” murder or other ghastly crime was witnessed and clear beyond any refutation” to “proven in court beyond a reasonable doubt,, AND the accused did not appeal based on a claim of innocence of the crime for which he or she was convicted” Consider for example the case of a man who shot and killed a policeman. Considered a capital crime in many states even though, under identical circumstances, the shooting of a private security guard would not be aggravated murder. Witness (another police officer) claims man shot his fellow officer in cold blood. Accused claims arresting officer grabbed for his gun and in the ensuing scuffle was accidentally shot. There is an analogous case which Lord Liverpool might have been called upon to rule in 1817 following the Spa Fields Riots, except that the accused, James Watson Sr., was acquitted. Watson, who was on the run after having spoken at the political rally that sparked the riot, was accosted by a night watchman investigating a burglary complaint. He pulled a knife, slightly injuring the watchman, and in his defense on trial said that he believed he was being assaulted and pulled the knife in self defense. The jury accepted his story and acquitted him.
Well done!
No right thinking gentleman would think to raise a cane against you for such a well reasoned speech!
I happen to agree with Lord Liverpool, and appreciate your facilitating his appearance.
a/s
Automatic appeal is “make-work for attorneys,” indeed. The automatic appeal exists to ease the consciences of the law makers, and adds thousands to the enormous cost of keeping inmates on death row. Thank you, Lord Liverpool, for your comments.