The resolution essentially says that the US Justice Systems are too irrepairably broken to admit a fair and just death penalty. In its own words:

.. more fundamentally Section 210.6 is simply inadequate to address the endemic flaws of the current system. Section 210.6, which in many respects provided the template for contemporary state capital schemes, represents a failed attempt to rationalize the administration of the death penalty and, for the reasons we discuss in greater detail below, its adoption rested on the false assumption that carefully-worded guidance to capital sentencers would meaningfully limit arbitrariness and discrimination in the administration of the American death penalty.

It lays out six important reasons for such disrepair [sourced from the actual text of the resolution (in PDF)]:

1. Section 210.6 advocates for an individualized determination of a crime (specifically murder, under certain circumstances) to be considered for death penalty as appropriate sentencing. However, several states have statutory identification of which murders should command the death penalty, and furthermore, such statuary discretion leaves the jury with a ‘formula’ to award the death sentence (rather than individualized determination).
2. Furthermore, the wide scope of murders/crimes that are currently eligible to extract the death sentence, under various state laws, is antithetical to the “spirit” and gravity of the punishment. The problem is that no state has successfully confined the death penalty to a narrow band of the most aggravated cases. Death eligibility in prevailing statutes remains breathtakingly broad, as aggravating
   factors or their functional equivalent often cover the spectrum of many if not most murders.
3. There is an almost unforgivable racial bias in the ratio of the number of minorities sentenced to death compared to the total number. Persistent efforts by various groups to address this issue has yielded little fruitful results in terms of a legal remedy to this issue.
4. The cost of administering the death-penalty is extremely high, and combined with the ineptitude of the defendants’ legal representation, the state incurs high costs in putting people to death who, arguably, do not deserve the punishment in the first place. The resolution noted: “Despite the fact that “effective assistance of counsel” is a recognized constitutional right, the scope of the right and the nature of the remedy have precluded the courts from being able to ensure the adequacy of representation in capital cases.”
5. In light of DNA evidence and upcoming forensic technologies, the acceptable risk of having some persons sentenced to death later, and perhaps too late, be shown to not have committed the crime for which they were sentenced. This issues is highlighted in House v. Bell, in which, the petitioner sought federal review with substantial new evidence challenging the accuracy of his murder conviction, including DNA evidence conclusively establishing that semen recovered from the victim’s body actually came from the victim’s husband, as well as evidence of a confession to the murder by the husbandthe Tennessee Supreme Court refused to consider whether new DNA evidence presented during death penalty appeals necessitates a new trial, and declined to answer other questions posed.
6. The politicization of judicial and gubernatorial elections has made death penalty a campaign issue, which leads to populist-style administration of the death penalty. Additionally, the politicization of the issue of capital punishment in the legislative sphere limits the capacity of legislatures to promote and maintain statutory reform. The kind of statutory reform that many regard as the most promising for ameliorating arbitrariness and discrimination in the application of the death penalty is strict narrowing of the category of those eligible for capital crimes.

In light of these observations, the resolution concludes: “these conditions strongly suggest that the Institute recognize that the preconditions for an adequately administered regime of capital punishment do not currently exist and cannot reasonably be expected to be achieved.”

Morality vs. Legality

The corner stone of Narayanan’s argument is the following: “The point is that drug consumption is NOT right”, and hence has to be illegal. My understanding of the argument is that recreational drugs are immoral, and hence have to be illegal, regardless of unfavorable economics. While that line of reasoning sound, its application for this case, in my opinion, is not. I question the premise that recreational drugs is immoral. I do not base this on the victimless crime argument, nor on the personal freedom argument. It is based on something entirely different.

During world war II, American farmers were encouraged to grow hemp for the war, and after world-war hemp was banned because it has the same psychoactive ingredient as marijuana (a fact which was known for a long time). So growing hemp was legal (and moral) before the end of world war II, and after it was made illegal, it has suddenly become immoral. This is just one example of how (im)morality of drugs actually follows its (il)legality, and is not the other way ’round.

Going back Narayanan’s post, it can be argued that drugs are considered ‘NOT right’ simply because they have been made illegal. That also explains why Hindu have been sadhus using marijuana for hundreds of years now, and that hasn’t been considered immoral (until now). In fact, the same argument holds for practices like sati. Up until the time sati was banned, only a minority considered it immoral. After it was banned, the immorality of sati was a universal opinion. So this opens up the possibility that legalizing drugs might make its use moral after all.

All drugs are not the same

Another argument Narayanan makes is that drugs are more injurious (than cigarette and alcohol), and hence should be illegal. The critical failure in this argument is that all recreation drugs are assumes to be equally harmful, and hence should be made illegal. Unfortunately, its far from the truth. Recreational drugs can be loosely categorized as hard drugs, and soft drugs. In general terms (at the risk of oversimplification), hard drugs are more harmful than soft drugs. In fact, soft drugs like Marijuana, Hashish, and opiates were found to be less harmful than cigarettes and alcohol. Even surprising that coffee was found to be more addictive than marijuana, hashish, and psychoactive mushrooms! So the argument that drugs all bad just doesn’t hold water. If we talking about hard drugs, then its a different debate altogether (so lets not go there, not in this post).

Economic Viability

Narayanan makes an argument that the economic viability of drug laws cannot be a reason for legalizing it. A legitimate statement, but a misapplied argument. This argument was supposed to be a rebuttal of Jug Suraiya’s argument that drugs are not a moral issue, but an economic issue. But Jug Suraiya’s point was that recreational drugs are illegal (despite its widespread use) is that the large demand for drugs has driven the trade into the hands of underworld mafia. The nexus among law enforcement personnel, politicians, and mafia makes it profitable for law enforcement and law making officials to maintain the status quo of criminalizing drugs. Note the subtlety in the argument. The argument does NOT say that drugs should be legalized because it is too expensive to enforce existing laws and that there is money to be paid. The argument is that the reason why drugs are still illegal is that law enforcement agencies and law makers have a lot to gain (economically) by keeping drugs illegal. An entirely different argument which hasn’t been rebutted at all!

So from what I can make of it, Narayanan’s arguments are more an attempt at justifying one’s prejudice against drugs, and not than an exercise in interrogating Jug Suraiya’s arguments.

When stripped down to essentials, the Jury is a collection of ‘average’, ‘everyday’ people who decide on a court case based on the evidence presented to them. The basic idea being, if 9 (or whatever number of) common folk think you are guilty, then you probably are. And if they think you deserve to spend x number of years in jail for it, then you probably do.

The Jury is supposed to deliver Justice. But what is justice? According to Plato “Justice is the interest of the stronger”, but Criminal Justice, on the other hand, can be stated as “a system of legislation, practices, and organizations, used by the state to maintain social control, deter and control crime” (paraphrased from wikipedia). The jury, in the present context is expected to deliver Criminal Justice. Now the question is, does it?

Objectivity (or lack thereof)

Criminal Justice operates upon a set of Laws. If any individual or organization violates the law, a crime is said to have been committed. One of the duties of the Jury is to determine if the law has indeed been broken. This process involves interpreting the law (often done by the lawyers for the jury) and determining whether or not the law was indeed broken. Such interpretation should, ideally, be an objective exercise. This is necessary to ensure ‘fairness’.

Let me digress for a few sentences. How does one determine the validity of an argument in a scientific effort. Typically through peer-review among subject matter experts. Why? Because they know the subject best, and are the best judge in determining if an argument is valid or not.

In other words, a person who is an expert in a particular area is a good judge of arguments in that area. Why should law be any different? Why is it assumed that an argument about the law is somehow best judged by a group of laypeople?

The consequence of this is loss of objectivity, and fairness in the system. People are too easily swayed by emotions, they are prejudiced by their own views, opinions, and value system. It takes an expert (like a judge trained in law) to divorce all this from the case at hand and be able to weigh the evidence and arguments. Jury of laypeople are no where near as qualified or skilled.

Awarding a Sentence

Often, the jury is also asked to determine the sentence (in terms of prison time, or financial payments) in many cases. This is an exercise that the jury is hopelessly ill-equipped for.

The prison system is often referred to as a ‘correctional system’. This is so because functionally, a prison is meant to serve as a place where the criminal does ‘penance’ for his/her crime and at the end of the term comes out as a ‘reformed’ person. So when a person is being sent to prison for x number of years, it has been determined that it will take the correctional facility x number of years to reform the person into a productive member of the society.

So my question is:By what (justifiable) qualification does the jury possess the authority to determine the time necessary for a criminal to be ‘corrected’ or ‘reformed’? The jury is regular people like you and I. If someone were to ask me how long does it take for (say) a street thug to be reformed, my honest answer would be “I dont know”. Then how can a jury, who have no knowledge or training in this matter, possibly know the time it takes for such a reform? Then how can they determine the right magnitude of sentence?

Restorative Justice vs. Retributive Justice

Most criminal justice systems in the world are based on restorative justice. Restorative justice focuses on establishing social harmony and mutual responsibility. So when determining whether or not a crime has been committed, and if so, then what the magnitude of sentence should be, it is important that social harmony be established by the justice system in that process. There have been many cases where the social harmony has been a major motivation for certain decisions by courts, eg:Brown vs. Board of Education, Gay Student Services vs. Texas A&M University, etc.

Such exercises in restorative justice, however, requires a excellent and thorough understanding of factors at the regional as well as global level. Even with local cases, because any case can become a precedent for future cases. The individual engaging in restorative justice must be aware of the implications that his/her decision will have on the landscape of law and justice in general.

Often, jury based justice system is only as smart as the jury (who are often average-joe-kind-of people), and hence not in any way enabled to engage in restorative justice. In the absence of specialized training, jury has no choice but to resort to a more primitive form of justice: retributive justice. Which essentially says that the punishment must fit the crime. An easy, but flawed yardstick to go by. Such retributive justice can result in denial of justice, and worse, become a precedent for future cases to follow, thus propagating this denial to future parties.

All of the above deficiencies can be remedied by moving away from a jury based trial to a trial by judge (under the assumption that the judge is a trained subject matter expert in law). Based on the above arguments, it hard not a conclude that the jury system is a model that is designed to fault undetectably. The undetectability of its faulting provides a false sense of confidence in the system. It is best done away with.

For starts, the case itself was resolved in a somewhat shady manner. The judge required that the jury merely conclude whether or not the music files were made available for sharing. There was no requirement to prove that the files were actually copied illegally. This is like having to pay a hefty sum for leaving your CD out in public for anyone to copy. How can I be held responsible for what someone else does with my CD? I have no control over that! I am not saying Jaimme Thomas is innocent, but I am arguing that she has not been proven guilty. That in my opinion makes all the difference.

Secondly, there is no way for the recording industry to put any figure on how much money they are losing due to illegal file sharing. So I cannot understand what the basis of the figure $220K which was arrived at. Typically such fines serve two purposes: (a) they serve as a deterrent for against the crime, and (b) compensate the aggrieved party adequately. This fine does neither.

Jaimme Thomas makes $36,000 a year. It will take her over 8 years to pay that sum if she subsists on food stamps, sells her kidney, puts her kids up for adoption and lives under the bridge. Practically speaking, if she is forced to pay the fine, she will have to declare bankruptcy. Hardly fitting punishment for the crime! If over-reaction works, then why not send everyone to the gallows?

Secondly, when the RIAA has no idea how much money it loses to illegal file sharing, and does not know if the the files in question in this case were shared or not, then on what basis can anyone state that the RIAA has been adequately compensated? Especially if the files were never illegally downloaded at all!

If RIAA continues this war path, it will only serve to make people more militant, and serve to detract artists from the recording labels. The internet is serving to be a great equalizer. Artists can now sell their music independently on the internet through sites like Myspace.

So where is RIAA going with this? I suspect to their own demise, or at the least to a self inflicted embarrassment.