On the issue of capital punishment people often position themselves either firmly for or firmly against it. Others look at the nature of each crime, the number of offenses, and the history of the defendant as factors used in determining whether the death penalty should be available. The argument presented here supports the availability of capital punishment as a sentencing option, but expands the breadth of a variable used prior to sentencing in capital crimes. The variable relates not to the crime or to the defendant, but rather to the process of trying and convicting the defendant.
When a jury is considering the evidence in a non-capital case, the personal and societal cost of wrongly convicting the defendant is that we are taking away their freedom for a long period of time. That may amount to the rest of his or her entire life if the mistake is never corrected. The family and friends, however, are still able to visit him or her and offer hope that the verdict will one day be corrected. In a capital murder case, however, the personal cost to the defendant of being wrongly sentenced to death is immeasurable, and the societal cost is great. We will have collectively sanctioned the murder of an innocent person. At the moment the sentence is carried out, we are unable to correct it. In that situation, we would be collectively committing a crime comparable to the one for which the defendant was being tried.
The standard of conviction in criminal cases is "beyond reasonable doubt". But if the defendant is eligible to be put to death for the crime, is "beyond reasonable doubt" strong enough of a standard? Should there be a higher standard?
If there is currently any recognition in our legal system of the variability of certainty of the guilt of defendants, it is not acknowledged in criminal court cases. In other words, when defendants are judged as to their guilt of a particular crime, the potential outcomes are polar opposites: guilty or not guilty (except, of course, those cases in which juries may convict defendants on a lesser crime if evidence was not strong enough for a greater one). This masks the reality behind the verdict - that some or all of the jurors may not have been 100% sure of the suspect's guilt, but were at least convinced beyond reasonable doubt. For each juror, that threshold of "beyond reasonable doubt" was based on their own life experiences and training, and was likely different from the each of the other jurors with whom they deliberated. Still, the sliver of doubt that was judged by each juror to have not reached the level of "reasonable" casts a very slight shadow of uncertainty on guilty verdicts.
The inclusion of 12 people on juries is a systemic counterweight to that uncertainty. If a jury has decided that the defendant's guilt is beyond reasonable doubt, then we know that even the most hard-to-convince juror has rejected any portion of doubt that would reach the level of "reasonable". Just as a chain is no stronger than its weakest link, a verdict is no more certain than its most skeptical member. Since juries are small samples of citizens selected (ostensibly) at random from the population, there is certain to be a high degree of variability in the level of skepticism of the most skeptical member. This variability degrades the overall quality of decisions in criminal cases in general. In capital crime verdicts in particular, that lack of quality is unacceptable.
What is needed is a higher standard of certainty of guilt in order for defendants to be eligible for the death penalty. For this to be attempted, however, our justice system needs to formally recognize the the varying degree of certainty associated with criminal convictions. Accordingly, for capital cases, an new standard of guilt needs to be formalized: "beyond any doubt".
What exactly does "beyond any doubt" mean? It means that in each juror's mind there should be no doubt that the defendant committed the crime and no doubt about the methods, actions, tools, and time frame of the crime. Each state might develop their own versions of a definition, but some models could include a requirement for video evidence of the crime, DNA matching, multiple witness corroborations, or other combinations of physical evidence with one or more of the above. (A commission in Massachusetts recently proposed a revision to capital punishment guidelines there that incorporates stronger requirements of physical evidence.) These are just suggestions. The focus of any enabling legislation or jury instructions, however, should rely less on the details of such suggestions to jurors and more on the idea that they must use those suggestions to decide on their own when the evidence reaches a point of being "beyond any doubt".
It is important to point out that this standard has nothing to do with the heinousness of any individual crime, nor with the unpleasantness or criminal history of a defendant. It has only to do with the quality and sufficiency of evidence presented at trial. Those other variables are certainly relevant in the sentencing phase once it is determined that the defendant's guilt is certain "beyond any doubt", but they have no role in determining guilt.
As with "beyond reasonable doubt", there will be variations among people about when evidence might meet that standard. This is accepted in the current legal arena and no structural changes would be needed to accept it as applied to a new, alternate standard of guilt.
It will require that the guilt and/or sentencing phases be adapted to the newly-recognized, varying level of certainty. It will require juries on capital cases to distinguish between those whose guilt is "beyond reasonable doubt" and those "beyond any doubt". Taken further, this will force us to affirm that we are willing to incarcerate someone who we are not completely sure is guilty ("beyond reasonable doubt" versus "beyond any doubt"), but it also provides us a mechanism by which we can confidently sentence individuals to death when evidence is determined to be irrefutable.
What does this do to the perception of the current standard, "beyond reasonable doubt"? Just bringing the potential weakness in it into the public consciousness as subject matter on its own will cause much hand-wringing. However, numerous highly publicized cases of wrongful imprisonment discovered through DNA testing in recent years has made the public aware that some convictions are erroneous. At the time of those cases, the juries were applying the same standard as today. Anyone who fails to recognize that such wrongful convictions are also occurring today is just being unrealistic.
This recognition and its failure so far to bring any changes to the standard of guilt expose the willingness of our society to err on the side of public safety when it's a close call. In other words, it exposes that we are sometimes willing to take away the freedom of our citizens when we are not completely sure they did anything to deserve that. That's an important point when we consider what reaction the public might have to a new, higher standard of guilt for certain cases.
For example, if the more important standard in capital cases is no longer "beyond reasonable doubt", what does that do to the perception of that standard among potential jurors? Do they then consider it weaker and therefore be more willing to allow a defendant to go free because they determined a higher standard was not met? Or would they be more willing to convict under that "lower" standard because criminal law had recognized that wrongful convictions are an acceptable risk? And what of non-capital cases? Do these same questions apply because jurors have become aware of the differing standards, even though the cases before them involve only the one, pre-existing standard.
There is ultimately no reason, however, that jurors need to alter their thinking on "beyond reasonable doubt". It will remain the threshold of guilt in almost all cases. Even in capital cases, that standard would remain as the applicable one for determining whether the defendant can go free. The additional standard, "beyond any doubt", is the one that would need to be met in order to allow the possibility of the death sentence being applied in any individual case.
In summary, the current trial and sentencing standard for capital cases is flawed and everyone realizes it. The model presented here offers a solution to the worst flaw - sentencing innocent persons to death - without gutting the effectiveness of the rest of the system. It is time to update our thinking on the certainty and quality of criminal sentencing and recognize that we can mitigate risks to ourselves and innocent defendants at the same time. A new standard of "beyond any doubt" should become the required finding of guilt to allow for a sentence of death.