Update – I note that Blue State California, once again, has upheld the death penalty.  Lives will be saved.  JBG


Analysis by

Jay B Gaskill, Attorney at Law

The possible repeal of the death penalty in California (on Tuesday’s ballot as proposition 34 ) and a proposed change in the three strikes law to weaken its application to thugs with two violent felonies who merely possess a deadly and prohibited fire arm (proposition 36), will be a public safety disaster, especially if both pass. These measures will cost innocent lives.  I am deadly serious. They will cost innocent lives.

First, allow me to describe a bizarre utopian political agenda on Planet Blue State.  It is currently being sold under the label progressivism. Now, traditional liberals and conservatives share a great many values, and both want a better world and sincerely think that the policies they favor will help bring that out.  Each side is ready, from time to time, to borrow good ideas from the other. But progressive liberals have wrested effective control of the Democratic Party, part of the Republican Party[1] and almost all of the conventional media from the old fashioned liberals and the common sense conservatives.

One perverse idea separates progressives from old fashioned liberals and the rest: The progressives actually believe that it is possible and appropriate to use the power of government to remodel basic human nature in order to make a better social order.  Some of them are even so naïve as to believe that human nature can be improved if the criminal justice system puts on a smiley face, i.e., “shows them a better way” by becoming an exemplar of “enlightened” and “merciful” justice.  This is just the latest and most politically acceptable iteration of the “use a gun, go to your room” progressive school of crime control policy.  It is a tell about the nature of the progressive movement generally.

The rest of us reject the idea of human nature remodeling, as dangerously naïve (as in the foregoing example) or unworkable, or truly dangerous because, as a practical matter, actually creating a better human nature is almost impossible to implement short of a Brave New World level of invasive totalitarian controls.  Traditional liberals and conservatives simply accept human nature as a given and seek to implement policies that will realistically optimize the human condition.  Rhetorical flourishes aside, neither group honestly pursues Utopia.

About the death penalty:

As a dedicated public criminal defense lawyer for the indigent, I devoted all my energy, talent and expertise to preventing the execution of my clients, much as a well-qualified surgeon would do the same to save the life of his or her patients, in spite of their sins. But I was gradually persuaded by the evidence that the death penalty, selectively and appropriately administered on those who are legally convicted of qualifying murders, has a lifesaving deterrent effect.

There once was a joint pilot study by the Brookings Institute (liberal think tank) and the American Enterprise Institute (conservative think tank) on the question of whether the death penalty saves more lives that it costs.  Yes, the death penalty deters far more murders, saving many more lives than are taken via post-conviction executions. The answer disappointed the progressives.  The study was quietly buried[2].

And, no, the progressives will not be able to remake human nature to eliminate murderous thugs from society.  And, yes, some of these thugs are always deterred by the prospect of ultimate justice for cold murder – the death penalty.  The elimination of the death penalty will allow more innocent lives to be taken by murderers than would otherwise the case.[3]

About three strikes laws:

California’s three strikes law has dramatically reduced the crime rate[4], and in concert with the death penalty, I am persuaded that it has actually saved lives. The repeal of the death penalty is on the California ballot. And so is a measure to weaken the three strikes law.

The new three strikes version on the CA ballot weakens that law by raising the bar for the third strike trigger, currently “any violent felony” (noting that strikes one and two are violent felonies in each version).  This means that fewer crooks will face the third strike penalty – life in prison after having done two prior violent felonies.  At present, a felon with two qualifying strikes is strongly inhibited from carrying a firearm because a convicted felon carrying a firearm is a third strike. That means two time violent felons cannot pack heat without risking a life sentence. But this would no longer be the case under the proposed weakening of the three strikes law.  Merely carrying a handgun, unlawful for any felon, would no longer constitute a qualifying third strike.  In my opinion, the new statutory language was either badly drafted in that respect or its authors actually intended to exclude “merely” carrying a firearm from the list of third strike offenses.[5]

Here is the unintended deadly consequence scenario:

Suppose these two “progressive” changes are enacted. Let’s consider the circumstances of a two strike felon who has just committed a single-witness violent felony, like a carjacking.  Without the death penalty, the carjacker who kills the only witness just gets life in prison, assuming he is caught and convicted. But if this same criminal is convicted only of a third strike (say, as a result of allowing the one witness to live), the punishment is still life in prison.  Hmmm.  As many thugs tend to think, the witness killing is not only a prudent precaution, it is a punishment freebee[6].

At the level of thug reasoning (something I know all too well)[7] the situation actually presents a legal invitation to kill the witness, because there is no death penalty. And because, if the three strikes law is weakened, there will be no strong disincentive not to carry a gun in the first instance.

Do you think that thugs can be deterred by lesser penalties and better role models?  Progressives actually tend to believe that human nature can be improved by state action.  Some of them seem to think that thugs can be induced to avoid committing murder, even when it is in their best short term interests, by simply by making a better society and “not descending to their level”. Progressives oppose enforcing rough justice when necessary to save innocent lives.  The criminal justice progressives are dead wrong about this.  The progressive agenda dangerously diverges from traditional liberalism, not to mention from common sense. Don’t bet your life on it.


Copyright © 2012 by Jay B Gaskill, Attorney at Law.  Forwards, links and pull quotes with attribution are encouraged.  For everything else, please contact the author via e-mail at law@jaygaskill.com.

[1] As exhibit A, there are a number of Republicans and otherwise rational players who have bought into the progressive agenda in the criminal justice area.  Undue leniency in the law and justice realm is dangerous in the very real sense that it costs innocent lives.

[2] You can read it in full at http://jaygaskill.com/AEIBrookingsDeathPenalty.pdf .

[3] Read the author’s article, Death Deterrence and Reform at http://jaygaskill.com/DeathDeterrenceReform.htm

[4] Partly because of its deterrent effect but mainly because it keeps repeat-the-crime-prone thugs locked up longer. Many home burglars, for example do 30 houses a week until they are apprehended.  Just cost out the benefits of keeping just one of them in the can five years longer.  I’ve actually seen a local spike in the crime rate correlated with the release of as few as three miscreants.

[5] A felony is a third strike if “the defendant used a firearm, was armed with a firearm or deadly weapon” … “during the commission of the current offense.” Trust my analysis – the offense of a felon carrying a firearm, by itself, while supporting a new felony conviction (PC 1220)will not trigger (pun intended) a third strike under the new law.

[6] There is a difference, almost trivial for the common thug.  While the murder would be punished by life without parole, the third strike would only get life with the possibility of parole after serving two decades or more.  In the real world, whether a life term is with or without parole is rarely, if ever, considered by the typical thug.

[7] See the author’s lecture at – http://jaygaskill.com/outlawyer/2012/10/15/a-journey-inside-the-criminal-mind/ .

Leave a Reply