The US should adopt a revised death penalty system

Con has made a thoughtful response. I'm surprised he didn't attack the basic validity of applying a death penalty, but that's perfectly fair. It's a good debate. We are debating a "should" resolution. Consequently, if the resolution is otherwise found sound and is affirmed, and present law does not allow implementation of the resolution, then the law should be changed. This applies to the Constitution as well. If the Constitution does not recognize the special nature of forensic evidence, then the Constitution should be amended so that it does. It is in any case reasonable to provide an additional standard of proof for applying the death penalty. If the Constitution is found not to allow such a reasonable approach, then by all means it should be amended. We should not be surprised that the implications of forensic evidence were not contemplated in the late 1700's when the Constitution was enacted. Con poses a false dichotomy, claiming: "The only feasible standard above a reasonable doubt is beyond all doubt." This is not true. Forensic evidence does not provide proof beyond all doubt. Defense attorneys routinely challenge forensic evidence on many grounds. If forensic evidence were beyond all doubt, then all such challenges would be baseless, and we know they are not. It might have been true in the 19th century that there was no practical middle ground between "beyond a reasonable doubt" and "beyond all doubt," but that is not true today. That fact is demonstrated by the use of DNA evidence to free wrongly-convicted people. In such cases, the results of a DNA test immediately and convincingly outweigh the evidence of witnesses. One must acknowledge that forensic evidence is in fact better than other types of evidence, and once that fact is acknowledged then it follows that there is a higher standard that is still below "beyond all doubt." Con argues that if forensic evidence is required for the death penalty then defense attorneys will argue that forensic evidence is required for conviction. However, defense attorneys now make the argument that forensic evidence ought to be required for conviction. Prosecutors attribute this argument to the prevalence of forensic crime shows on television, fiction in which every case is determined by forensic evidence. Juries are conditioned to expect forensic proof. It's called "the CSI effect," http://www.govtech.com... It has been verified: "The results of a moderated regression suggest that, when the outcome of the forensic test was negative, those who reported higher viewing frequencies rated a complainant's claim to be more credible and were therefore more sensitive to the reliability of the evidence." http://www.allacademic.com... Even if such a bias does not already exist, it is inevitable that forensics will be recognized as more reliable, because they are. Whether the law acknowledges it or not, juries often apply levels of certainty above "beyond a reasonable doubt." If they are not certain enough to apply the death penalty, they may convict the perpetrator of murder in the second degree, or some offense that does not allow the death penalty. It is much better to have this informal process of jury mediation of sentence made formal. There will be greater justice because the law will better fit the reality, so guilt will be more appropriately be determined. 1. My claim was that for certain heinous crimes justice demands a death penalty. This is a justification for having a death penalty at all. Pro did not deny that argument, and if anything seemed to agree. Therefore we agree that having a death penalty is justified. Pro argued that "Only heinous crimes with forensic evidence will be subject to this punishment." I agree. However, the net result of the new system is that justice will be done more often than it is now. That is because the main argument against having the death penalty is there are a significant chance of wrongful convictions. With that argument diminished, the death penalty will be carried out to serve justice rather than avoiding the penalty entirely for fear of error. My example was merely an illustration of the type of case. Pro did not deny that such cases occur. 2. Pro argues "If the death penalty has any positive affect, leveraging killers is it." I think he means "plea bargaining with killers." Pro claims that using the death penalty as part of a plea bargain is unconstitutional. Such plea bargains are done openly in states that have the death penalty, such as in the case I cited. Prosecutors would not do this if there were a generally applicable constitutional prohibition. The case Pro cites is a prohibition in a narrow circumstance that rarely applies. Pro argued that it would be a bad practice to extract a confession under threat of the death penalty. Since under the revised system confessions are not forensic evidence, there is no threat of the death penalty unless there is independent forensic evidence. If there is independent forensic evidence providing proof beyond a reasonable doubt, the prosecutors have no reason to seek a confession. What prosecutors do want are additional details of the crime and information on other crimes. It is reasonable to take the death penalty off the table under certain circumstances. However, the defendant's guilt of at least one murder must be established forensically for this strategy to apply. 3. Pro did not deny my contention that a death penalty would deter those under life sentence from further murders. The logic is there in foreign cases as well as domestic. Pro questioned the number of cases, not the validity of the argument or even that it occurs. It is a fact that a convict under life sentence has a free pass to murder fellow inmates, guards, or innocent people in an escape. The argument stands. 4. I asserted at the outset that appeals are based on errors of law, or as Pro calls it, "procedures." I accept Pro's argument that the standard is "harmless." However, many cases are appealed solely to avoid imposition of the death penalty. Since cases without forensic evidence are not subject to the death penalty, those cases will not be appealed. In the revised systems, appeals related to the defendant not being properly Mirandized, line ups for witness identification being properly conducted, and all the grounds related to the procedures for dealing with human subjects are minimized. Even if procedures are ruled in error, the forensic evidence stands for retrial. Consequently fewer appeals will be foil justice when witness or confessions are thrown out on legal technicalities. 5. Pro agrees, for the purposes of this debate, that the death penalty is justified, both in terms of the general justice of the system and, in (1), to provide justice to perpetrators of heinous crimes. With that agreement, the question is solely whether the proposed revised system requiring forensic evidence is superior to the present death penalty system. The proposed system is superior to the present system because it will lead to fewer wrongful convictions, it better reflects the degree of certainty that juries now apply ad hoc, it will take away the free pass for those under life sentence to murder others, it provides a reasonable basis for plea bargaining, and will eliminate some appeals entirely and allow convictions to be sustained in others. Technology has outdated the notion that there is no level of certainty between "beyond a reasonable doubt" and "beyond all doubt." Forensic evidence is more reliable than witness testimony and confessions, but still short of certainty. The justice system should reflect this reality in order to achieve greater justice.