Deconstructing the arguments for and against the death penalty

A commenter left a very lengthy, insightful and thought-provoking comment to my recent post on the death penalty. The comment, in my opinion, is worthy of its own forum and so I’ve received permission to reproduce it here as a “guest post” of sorts. The name of the commenter will not be disclosed, for reasons relating to employment, but I do know this person in real life and all our interactions have left me thoroughly impressed. It is long, but I do hope you take the time to read through it all. Of course, if you disagree, the comments are open for further discussion.

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Alright, look. If someone asks me “why” I oppose the death penalty, my answers all ultimately reduce down to “because it’s just wrong, and that’s all there is to it.” Ultimately, that’s no better reasoned, no more intellectually sound, and no more compelling than the “I’d fry ‘em myself–let me at ‘em” folks who inhabit the comments sections of the Register, the Courant, and (fewer) this post. I acknowledge that–and I can’t, try as I might, articulate the reason that I oppose the death penalty in any coherent manner; just as the vast majority of the vocal proponents can’t articulate any coherent reason for their fervor.

(I will note, at the outset, that I most emphatically do NOT believe that it is wrong to take a life in all circumstances. Lethal self-defense/defense of others, certain instances of warfare, and even certain other instances certainly, in my mind, justify taking another person’s life. But that’s not a conclusion that any of us should take lightly, or treat as a given.)

So, stepping back from a viewpoint of belief, what are we left with?

Giving death penalty proponents the most credit possible, let’s lay out every conceivable argument in favor of the penalty (besides, of course, “fry ‘em! They’re animals! And let’s do it as cruelly as possible!”, since that’s not, in fact, an argument).

1. Vengeance makes us feel good.

2. This sends the clearest possible message that we, as a society, do not approve of the conduct of those we execute.

3. This is an effective deterrent against other potential future murders.

4. This is the only way we can guarantee that these specific individuals won’t kill again.

5. It costs less than incarcerating these people for the rest of their lives.

6. Death is ultimately more humane than the only other available (and often, only other reasonable) punishment; that is to say, life imprisonment.

7. They have, by virtue of taking another life in one of a certain set of ways, forfeited their own right to continue to live and enjoy day-to-day existence.

Let’s bracket #1 for a moment, and move to #2.

#2: It is not clear to me whether or not this is correct. It’s probably true, but I also think it’s possible that it sends no more clear a message than life in prison. It may send a less clear message, if those who buy into #6 are to be believed, or if the point of some of Gideon’s discussion of the irony of killing people to send a message that we don’t approve of killing people is well taken. In any event, continuing to give proponents as large a benefit of the doubt as possible, let’s say that capital punishment–both in sentencing and execution–sends a clearer message of condemnation than a true life sentence. I would simply ask: of what value is that marginal increase in message? What is accomplished by our society saying “we condemn this murder to the degree of death” that isn’t accomplished by saying “we condemn this murder to the degree of life in prison”? Accepting as a given (which it is not), that there is a difference in the strength of those statements, what is the real-world impact of that difference? I would contend that there isn’t one. This does not even begin to address the problems with a “means-to-an-end” approach to criminal justice which would need to be embraced to defend capital punishment on these grounds.

#3: This has been statistically disproven to a degree of scientific/mathematical certainty. The death penalty does not effectively deter violent crime or murders, and there is good evidence to suggest that, at the margins, it may in fact lead to more murders. Given the existence, however, of competing (though biased and methodologically flawed) studies on this point, I will once again give proponents the largest possible benefit of the doubt on this point–at best, there is competing evidence that would tend to support a conclusion suggesting there is no change, a conclusion that there is a slight deterrent effect, and a conclusion that there is a slight counter-deterrent effect. Taking those facts, which are as favorable as they can be for death penalty proponents, it would seem to me that the wisest course is to avoid taking lives on the basis of statistical conjecture that is, at best, ambiguous, and even if favorable, provides only a marginal benefit. Once again, reliance on this point requires an acceptance of an instrumental view of criminal justice with all of the problems that entails.

#4: The reasonable solution to this concern (which is, in some isolated instances, a valid one,) is twofold: 1) more effective administration of prisons. It is, in fact, possible, to ensure that individuals will a) not escape from prison and thus have the opportunity to kill again and b) not have opportunity to kill prison employees or fellow inmates. And 2) legal reform (probably legislative–and this should be a very popular initiative for legislators and governors nationwide to champion, in those states that haven’t already), ensuring that an individual sentenced to life in prison without the possibility of parole in fact serves life in prison without the possibility of parole. (There is, parenthetically, no reason why such a sentence cannot be imposed consistently with guarantees that later evidence of actual innocence, etc. would be properly considered.) I think even death penalty proponents would agree that killing people because we have flaws in our system is not an acceptable solution compared to the option of fixing the flaws in our system.

#5: Empirically false. In the vast majority of instances, it costs less to incarcerate a convicted capital murderer for the remainder of their natural life than it does to execute them. The only possible solution to this (because I assume people don’t favor arbitrarily increasing the cost of incarceration,) is to reduce the cost of executions. In order to do that, however, something will have to be sacrificed. The actual costs of an execution itself are quite small–the expense here comes from the legal proceedings that precede an execution. In other words, the only effective way to make an execution less expensive would be to either remove or seriously downsize a) the quality of legal assistance provided, b) the trial and sentencing themselves, or c) the appeals afforded to a person sentenced to die. Realize, first and foremost, that all three of these things are directed at significantly more than the determination of the binary question of guilt or innocence. In addition to being constitutional rights, (which should count for something), these three types of safeguards serve to ensure accuracy in a guilty verdict (the majority of capital cases are not nearly as clear a guilt question as the Hayes/Komisarjevsky trials), to protect against bias in prosecution and in sentencing, to ensure that a person sentenced to death “deserves” that penalty (as defined by the legislature, no less), to ensure that trials are in fact conducted fairly and in accordance with the principles of law, and to protect a host of other values that are, like it or not, integral to not only our criminal justice system, but also essential to ensure (ostensibly) the protection of each individual who stands as a defendant in that process. (Supposedly, anyway–the great irony here is that as most death penalty proponents decry what they view as the excessive protections and appeals in the process, many opponents bemoan what we consider to be the meaningless cursory review and rubber-stamping that constitute the death penalty assembly line from start to finish.) In any event, it would be wholly impossible to remove those protections and still support the death penalty as “fair” or “just”–setting aside my belief (and the belief of most other opponents) that the system is neither of those things, the legitimacy of those claims depends on the continued existence of these safeguards.

#6: Setting aside the practical problems with this argument, (most of which stem from the finality and irreversibility of capital punishment, as opposed to even the lengthiest period of incarceration), this argument still suffers from two major problems: it’s mutually exclusive to everything else, and it’s wrong. First of all, it is cannot co-exist with the other justifications for the death penalty–if one supports the death penalty for reasons of humanity to a convicted murderer, they necessarily cannot buy into any of the other (largely instrumentalist) justifications for killing that same person. To do so is, at best, intellectually inconsistent, and at worse, intellectually dishonest. Far more problematically, however, the argument just doesn’t hold water. It is, first of all, factually incorrect: the enormous majority of capital defendants fight their sentences. Why? Precisely because the instinct of self-preservation is among our most fundamental human characteristics. Those few who do not fight it (the widely touted-by-proponents Michael Ross, Hayes himself for a few brief days), have been nearly universally (if not universally) suffering from so-called death row syndrome: to whit, they have been mentally incapable of rationally making the decision to die. Our entire legal system protects individuals from the consequences of decisions that we believe them unfit to make–there is no intelligible reason why this situation should be any different.

#7: Believing that convicted murderers have the opportunity to “enjoy” their day-to-day existence is a bit of an exaggeration. And by a “bit of an exaggeration,” I mean that it is a colossal exaggeration. Despite what many death penalty and other “law-and-order” proponents believe, the existence of an inmate in prison–particularly those in the maximum security facilities that house convicted murderers–is (and probably should be) a highly unpleasant and Spartan one–to say nothing of the reality of living with the reality of having killed other human beings. “Ah-ha,” you say. “You said that you’re OK with lethal self-defense or defense of others! Someone who takes a life (or is trying to take a life) has lost their right to live, by your own admission.” Nope. Lethal self-defense or defense of others is justified, not because of the actions of the “target”, but because of its ability to preserve innocent life. In the calculus where we are presented with a choice between the life of an innocent and the life of someone who is anything but innocent, it follows naturally that we should protect the life of the innocent. That is not, however, the situation here: killing the person who is wholly morally culpable does not serve to protect any innocent life at all (see #3 above). Lethal self-defense and defense of others is justified to prevent a certain set of harms; the same “exemption” for killing someone does not extend to allow us (in my mind), to use lethal force against someone who has already committed that harm as, for example, they walk away from their victim. So to buy this argument, you simply must believe that an individual can, by virtue of a single choice, forfeit their right to continue to live on this planet.

So let’s consider that argument, along with the now-unbracketed #1 from above. The two arguments in favor of the death penalty that remain are: by taking a life in a prohibited manner, you forfeit your right to live; and that vengeance makes us feel good. Does vengeance make us feel good? I’d say the jury’s still out on this one–the survivors of murder victims, and those who have themselves survived attacks that murdered others (Dr. Petit would fall into both of these categories), don’t have a consistent answer. For every survivor who claims some sort of “closure” or other benefit from the moment of vengeance, there is another survivor who belongs to a group like www.mvfr.org.

So I don’t think we know that vengeance really does feel good. But let’s say that it does. It’s not clear to me that “feeling good” is the goal of our criminal justice system. The goal of our criminal justice system should be, first and foremost, to protect the members of our society who choose to remain within the boundaries of our laws, and second, to punish, and where possible, rehabilitate those who do not. Both of those goals are served by a true life sentence–neither is better served by the death penalty. I can’t find an articulable reason why vengeance and its possible psychic benefit should be justifications for doing something (though if you have one, please tell me–I’d be genuinely interested to hear it, and I think this discussion could be better for it), and it seems to me that allowing ourselves to pursue such a base and animalistic instinct flies in the face of a civilized society. (Note, please, that “they did it first,” is not an argument against this–what true murderers like Mr. Hayes did is unquestionably terrible, but that in and of itself is not a justification for us to behave in an animalistic way in our own conduct.) This seems closely linked with the argument that certain murderers have simply forfeited their right to live–to this claim, I would simply ask: “why?”

To deprive a human being of the most basic and precious right they have, a stronger logical argument should be required than “because they did something terrible and we’re really angry about it.” As I think I’ve established at this point, there’s no instrumental value to stripping that right, meaning that the justification must be something other than utilitarian—that, as far as I can tell, leaves only a vision that we strip the right because some of us would feel better by virtue of stripping the right. If that’s the standard by which we can strip others of their rights, however, society truly would crumble; I would feel better by stripping the rights of people wealthier than I to keep their money and taking it for myself—but the whole point of being in society is that I don’t get to do that. (In fact, if we think about it, the very people who death penalty proponents want to kill stripped other people of their right to live simply because killing those people benefitted in some way.) So either this argument doesn’t hold water, or I’m missing another explanation—once again, if someone has another good explanation, please share it.

I acknowledge, however, that my answers to the preceding two arguments aren’t entirely satisfying on an intellectual level. I think they get us part of the way there, but maybe not the whole way–I’d love to hear responses from people on both sides, especially on those points. But let’s say that there aren’t good answers to those two arguments, and so they’re left standing. Opposing them, as arguments against the death penalty, we have:

1. A broken system. Little, if anything, of the capital process and the lives of the defendants is fair. Capital defendants frequently begin life without favorable prospects–whether due to mental deficiencies, the conditions of their upbringing, or mental disorders; capital defendants of average or better intelligence, raised in stable, healthy environments, and free of mental disorders are, at best, rare, and in all probability, non-existent. The selection of which disadvantaged murderers will face the death penalty isn’t fair either. The race of the defendant and the race of the victim will have significantly more to do with the decision to prosecute than will any element of moral “desert” of the ultimate punishment in the crimes or the criminal. And once the decision to seek the death penalty has been made, the defendant will, (unless they are the rare capital defendant who can afford counsel,) generally be represented by an overworked public defender, who, even with all the best intentions and most serious effort, can never do everything possible to try to spare their client’s life. (There is no slight intended to public defenders here–it’s a simple statement of the reality that the vast majority of capital defendants will not receive adequate representation; there are certainly exceptions among both private and public counsel.) On the other side of the courtroom, the defendant will likely face a prosecutor who will have tremendous resources on his side. (In one case, that prosecutor will already have the faces of seven condemned men hanging on the wall of his office like hunting trophies (note that this is true–and while not universal, highly indicative of the mentality of many death-hungry prosecutors; people out for convictions and death sentences, in place of justice, truth, or appropriate punishment)). To help make sure that the prosecutor gets that sentence, he then gets to ensure that the jury impaneled to decide whether the defendant lives or dies is ready to condemn him to death as soon as they follow their likely predisposition to conviction—and this is, in fact, the only context in our criminal system where such a predisposed jury not only can be impaneled, but as a matter of law must be and will be impaneled. In their considerations, statistics indicate, the jury is often unlikely to give significant weight to the sorts of mitigating arguments that best explain the conduct of many capital defendants–things like mental illness, an abusive childhood, or drug addiction (studies indicate that fewer than half of jurors would consider the latter two as mitigation.) Following the likely death sentence, the defendant is faced with an appeals process that is notoriously reluctant to grant relief. Even in the face of atrocious misconduct, grievous procedural errors, and serious doubt as to guilt, the appeals process almost never vacates a death sentence or revisits the issues raised by the defendant. In short, once the death-qualified jury sentences the defendant to death, the death sentence is more than likely the final judgment on a defendant’s place in the human community.

2. I already got ahead of myself a little bit, but capital defendants, far more so than any other group of criminal defendants, almost universally, suffer from all sorts of mental and developmental challenges, and almost to a person, are from our lowest socioeconomic classes.

3. There is a well-documented virtual guarantee of bias and arbitrariness in the selection of who is sentenced to die and who is not.

4. The ever-present risk of executing an innocent person. Saying that we should limit the death penalty to cases of clear guilt does not solve this–clear guilt to many of us (Hayes) is not the same as clear guilt to many other (Cameron Todd Willingham, Larry Griffin, who knows how many other innocents)?

And I’m only giving brief lip service to the problems with capital punishment as a system here–that says nothing about the moral conundrums that it raises; the most powerful argument against capital punishment is one, that like the two proponents’ arguments I concede are hardest to address, that is not rooted in hard numbers. The simple reality of the death penalty is that no matter how you slice it, society is declaring that an individual is not fit to continue to live—and then meting out that punishment. Given that this is almost certainly the worst (and definitely the most final and irreversible) thing that a person can do to a fellow human being, the justifications for doing so should, in my mind, and the minds of many other abolitionists, be absolute and beyond reproach—that simply is not the case with capital punishment. Nor have I done justice to the full host of problems that plague the system and make it–even if you believe the death penalty to be totally acceptable as a concept–wholly unworkable and unfair. My point is simply that there is much sitting on the side of the scale that weighs against the death penalty, and very little (if anything) sitting in its favor. Besides, of course, raw human emotion–and obviously, I don’t discount that, given my admission that I don’t need to consider everything I’ve just said in reaching my conclusion that the death penalty is “just plain wrong.” But for all of us–myself included–I think we would be better off if we stopped relying on that emotion (be it anger, sympathy, or something else,) and approached this question from a place of logic and reason.

Of course, at the end of the day, none of this stuff matters to my ultimate conclusion–I never get past my unshakable belief that “it’s just wrong. End of discussion.”

28 thoughts on “Deconstructing the arguments for and against the death penalty

    1. AnonymousAbolitionist

      Thanks, Gideon. And thanks for posting this, too–I’m flattered… and hopeful that it might generate a little more discussion… or even just a few thoughts on the places where I’m not really sure how to reason through some of these problems.

      Reply
  1. Pauline

    One thing to add to the vengeance part: what good does it really do? So the person was executed. Vengeance achieved. Yay. Will that “good feeling” last? It doesn’t change what happened. It doesn’t bring back those who were killed. Would the closure obtained from the death penalty be so much more/better than that obtained by LWOP?

    But I’m really only repeating the arguments made by this anonymous comment-writer in a less-eloquent manner. Ultimately, I think it comes down to belief:

    Of course, at the end of the day, none of this stuff matters to my ultimate conclusion–I never get past my unshakable belief that “it’s just wrong. End of discussion.”

    And I think that’s true of both sides of the argument, for this issue and many others.

    Reply
    1. AnonymousAbolitionist

      Not to mention (I had a hard time articulating this)–is there something else that “we” derive from vengeance in the “it feels good” department? Something that goes beyond closure? I’m not sure what that would be, exactly. Satisfaction? Satisfying some sort of a primal bloodthirst? I’m sure there’s more to it than merely closure–the people calling in online forums (fora?) for Hayes’ execution (I hate to use this most over-covered of capital cases as an example, but it is helpful…) to be as painful and as quick as possible are certainly looking for vengeance, but they’re not looking for closure. Most of them never knew these victims, and had no involvement with the crime, so even if executions can provide closure, this execution can’t provide that closure to them… so it must be something else. I just have a hard time thinking of what that “something else” might be that would still be a desirable thing for people in a society to seek.

      Reply
  2. Small Pink Bunny

    It is frightening how many people who comment on articles do seem to fall into the “Can I volunteer to excute them myself in some particularly heinous way” category?Most often it seems to involve sticking sharp things into their nether cavities. Honestly. I’m not sure why there seem to be so many of these people or why they seem to feel its ok to share these thoughts with us. I can’t help but wonder how they are much different than the defendants. I think Helen Ubinas was a little right with her odd column about the changing appearance of Hayes and what bad people look like. When ever we arraign someone who’s done something particularly awful, everyone from the building turns out to get a look at them and then is usually disappointed because they just look kind of ordinary and a lot like the rest of us.
    I think there must be some kind of “no man is an island” and “ask not for whom the bell tolls” quality to it all. Maybe there is a little capital murderer in all of us. Mine of course, is much smaller than the average persons, but then again, I would have been satisfied with life in prison.

    [Ed: Added link to John Donne poem, just for the heck of it.]

    Reply
  3. LJS

    Sadly, the cries for a death penalty law are sounding again in Massachusetts in light of the recent shooting of a toddler in Boston. The folks for it seem to have no clue what is involved in actual capital investigation, prosecution, and defense. SIGH!

    Reply
  4. spo

    There are studies that show that an effective death penalty does deter murder (not all murders, but some murders).

    And no offense, but how colossally stupid is this comment: “I think even death penalty proponents would agree that killing people because we have flaws in our system is not an acceptable solution compared to the option of fixing the flaws in our system.” Guess what, guys, we live in an imperfect world, which means that murderers behind bars will always have the chance to kill again (and that’s to say nothing of parole, which most of you people think murderers should eventually get) no matter what “fixes” we make to the “system”.

    As for LJS’ last comment–give me a break. Do you realize how arrogant you sound? In a democracy, people get to choose things.

    Reply
    1. AnonymousAbolitionist

      There are studies that show that an effective death penalty does deter murder (not all murders, but some murders).

      And I acknowledge that. I point out that they’re biased and methodologically flawed, but I acknowledge that, taking all data as favorably as possible for proponents, there are sufficient data suggesting that murders are deterred to lead to a conclusion that we just don’t know whether or not there’s a deterrent effect. There is really no argument to be made that, in light of all of the studies produced, (especially if you take the time to evaluate them on their internal merits), we could say that it does deter murders. Taking all of the evidence (and treating the flawed pro-death studies as unflawed), the best possible case a death penalty proponent can make in good faith is that the data are inconclusive. Which is what I said.

      And no offense, but how colossally stupid is this comment

      Sorry, you don’t get to say something nasty and insulting and then be absolved simply by saying “no offense”. Generally, calling someone or something they’ve taken the time to put serious thought and effort into “colossally stupid” is going to offend–there may be a context where it wouldn’t, but this isn’t it. I’ve gone out of my way to remain completely civil and respectful of those who reasonably disagree with me. I don’t think it’s unreasonable to expect the same from you.

      You want to disagree with the comment? Please do–the bulk of the reason I wrote this was the possibility of having some sort of conversation with people who hold different views from my own–whether it be for the benefit of my views, theirs, or simply the value of discussion. It was not so that someone with whom I disagree could call me “colossally stupid.” That’s rude, unnecessary, and counterproductive.

      That said, you’re correct that we live in an imperfect world–we do not, however, live in a world that could not be subjected to serious improvements.

      murderers behind bars will always have the chance to kill again

      It’s possible to make our prisons significantly safer for prison employees and for inmates (if the possibility of convicted murderers killing fellow inmates is something that concerns proponents who buy into argument #4–I don’t know whether or not it is). It is, in fact, possible to make prisons every bit as safe for employees (guards, etc.), as every other workplace. You’ll never make them 100% safe, but I work in an office and I’m not 100% safe at work. None of us are. Doing this would cost more, but it seems worth it to me (especially if you consider that plenty of prisoners who are not under sentence of death have tried (and sometimes succeeded in killing guards–we should be protecting these people better independent of any argument about the death penalty).

      that’s to say nothing of parole, which most of you people think murderers should eventually get

      First of all, I’m not sure who “you people” are. Again, this is unnecessarily offensive and unhelpful.

      Setting that aside, life without the possibility of parole is both real and widespread, despite what certain media outlets and pro-death penalty campaigns depict. Every single capital jurisdiction in the United States has LWOP on the books (the only state without LWOP is, randomly enough, the non-capital state of Alaska)–and again, even if that weren’t the case, it is preferable to enact legislation allowing for a life sentence without parole than it is to kill someone because of a gap in statutes. I realize that we’ve all heard nightmare stories of people being paroled from “life sentences” and then killing again. To be perfectly clear, those tragedies have nothing to do with LWOP–there is a difference between life sentences and life without the possibility of parole. The only ways you get out of prison if you’ve been sentenced to LWOP: 1) a judicial adjudication of innocence. These are nearly impossible to get, even harder to prevail. But if someone can prevail, surely we can all agree that it would be good to release that innocent person. 2) a judicial modification of the sentence. This is (as far as I can think of) impossible absent certain irregularities or problems which would, incidentally, also be adequate to reduce a sentence of death to a sub-LWOP sentence. So that’s not a failing of LWOP, but a guarantee that sentences be appropriate and properly determined. And 3) an executive modification or pardon. Random pardons and commutations are incredibly poor politics–that’s why they’re so rare, and in almost all cases, are used only as a final check against the continued incarceration of a possible or probable innocent or in other equally compelling circumstances. Again, there are ways to protect against these powers being used inappropriately, and that would again seem preferable to killing people rather than doing some heavy lifting to fix some undesirable elements of the system.

      As a sidenote, take a look at Simmons v. South Carolina and Shafer v. South Carolina (both US Supreme Court) for some pretty interesting discussion of LWOP at sentencing.

      As for LJS’ last comment–give me a break. Do you realize how arrogant you sound? In a democracy, people get to choose things.

      I think LJS did a nice job explaining in more detail what (s)he was concerned about in her post. But (maybe just because (s)he is nicer than I am), LJS didn’t point out that once again, this is gratuitously vitriolic. There’s no need to be so angry about things, and there’s no reason to be condescending and nasty with a remark like:

      In a democracy, people get to choose things.

      You raise some good concerns here–I hope I’ve addressed them at least somewhat. And I’m completely serious when I say that it would be really interesting to hear your (non-rude) responses and possibly continue the dialogue.

      Reply
  5. John Beaty

    Yes, including deliberate and willing ignorance.

    SInce we live in an imperfect world, should we 1) kill someone who may be innocent or 2) NOT kill them because we are imperfect?

    And please, by all means, link to (multiple) studies that show that an effective death penalty does deter murders. Or even post the names, I’ll get the links.

    (BTW, starting your comment “no offense, but how colossally stupid..” is per se offensive. Which isn’t a problem for me, but it labels you as a hypocrite. Which I doubt you are.)

    Given the horrors of having a family member killed, I cannot rationalize away the possibility of killing an innocent man. GIven the inequity with which the death penalty is applied, this is inevitable.

    Reply
  6. LJS

    As for LJS’ last comment–give me a break. Do you realize how arrogant you sound? In a democracy, people get to choose things.

    Sure, folks get to make informed choices in a democracy. But there are very few folks in Massachusetts, or anywhere in the northeast that have direct experience with a capital investigation or prosecution. And even fewer folks with experience in more than one of these cases. That makes it hard to have an informed debate about it — the reality is very different from theory or speculation. What we get instead is sound bites and arguments in the wake of tragety, not a rational discussion of the costs, risks, benefits, etc. of capital punishment.

    CT and Mass, have life without possiblity of parole for certain homicides — and it means just that, zero possiblity of parole.

    (A summary of the Mass law is here: http://www.massmurderdefense.com/pages/murder-1st.html)

    Reply
  7. LJS

    As to the risks — at the end of August, the CT Supreme Court seemed to agree that its existing law discouraging, if not historically banning, eyewitness ID experts was flawed, but chose not to overturn it, waiting for a hypothetical perfect case that may never come.

    OPINION:
    http://www.jud.ct.gov/external/supapp/Cases/AROcr/CR298/298CR153.pdf

    CONCURRING OPINIONS
    http://www.jud.ct.gov/external/supapp/Cases/AROcr/CR298/298CR153A.pdf
    http://www.jud.ct.gov/external/supapp/Cases/AROcr/CR298/298CR153B.pdf

    This Friday, the CT Supreme Court decided that while recorded custodial interrogation was a great idea, it wasn’t going to require that either — instead it was going to hope the legislature and the police do the right thing.

    OPINION:
    http://www.jud.ct.gov/external/supapp/Cases/AROcr/CR298/298CR101.pdf

    CONCURRENCE:
    http://www.jud.ct.gov/external/supapp/Cases/AROcr/CR298/298CR101A.pdf

    These are two of the most common factors in the DNA exoneration cases. “Snitch” testimony being another top one (and a huge problem in capital cases when the State can offer a cooperating offender life without possibility of parole, or some long, but finite sentence in return for inculpatory testimony against the perceived worst offender.)

    When CT decides to take serious steps on those problems, then, maybe, I’d have some faith in being able to reliably investigate capital cases.

    Reply
  8. former lwop inmate

    the enormous majority of capital defendants fight their sentences. Why? Precisely because the instinct of self-preservation is among our most fundamental human characteristics.

    Capital Defendants fight their sentences because their sentences do not have finality and they have a chance (even if small) of being released. At least every Defendant (Capital or not) that I’ve met feels that way. With even a small hope a person will subject themselves to the most inhumane life as long as that hope of a better life exists.

    Clearly you’ve never been under this kind of sentence or you’ve never done that kind of time. Our current method of incarcerating Death-Row Inmates (Locking someone down in a six-by-six pen for sixty+ years) is inhumane. You cannot make an argument that it is humane and I would make the argument (having once been under a LWOP Sentence) that Death is a more humane alternative if the LWOP Sentence is final.

    As a solution, society could make Capital Punishment opt-in for LWOP prisoners. Offer them the choice once their sentence is final. I would put money that you will find the vast majority opting to go to sleep rather than suffer without hope for sixty+ years. I know that I would have. In the meantime, advocates on either side who have never experienced a LWOP sentence should refrain from using the ‘humane’ argument because experientially they are in no position to do so.

    Reply
    1. AnonymousAbolitionist

      You’re definitely right on some points here–I overgeneralized to too great of a degree about “capital defendants” as some sort of homogeneous class, which they most emphatically are not. However, there are certainly capital defendants who have fought their sentences in unbelievable ways, not seeking release, but merely seeking sentence reduction to life in prison, because, to their minds, as awful as life under LWOP may be, it beats not being alive at all. Whether that’s right or wrong, and whether you or I are correct (I suspect it’s a bit of both) as to why they’re fighting their death sentences, I think we can both agree that supporting the death penalty on the grounds that it’s more humane for the people you’re killing is inconsistent with any other argument in favor of capital punishment, and may very well, in many cases, simply be intellectually dishonest.

      You’re absolutely spot-on about something else, though. I’ve never done time on death row, under LWOP, or even in a local lockup. My exposure to the insides of jails and prisons has been limited to visits to clients or in preparation of representation. And I can’t even begin to imagine what you and every other inmate endures during the course of incarceration. Make no mistake, though: I’m not saying that it’s humane within any meaningful definition of that word… I am saying, however, that I believe it must be less inhumane and less immoral than being killed. You’re certainly right that my lack of personal experience with either option undercuts my ability to defend this opinion, but the empirics are, as I understand it, not conclusive one way or the other.

      I think you may be right, by the way, that giving LWOP prisoners the option of execution might be a good idea, as long as we have adequate protections in place to make sure that it’s done properly (psychiatric checks for competence, etc.), but I think that’s a totally separate discussion. Probably a good one for Gideon to consider having at some point, too.

      Reply
  9. Sonny

    Very interesting post. I think for a lot of people who oppose Capital Punishment in practice (due to concerns about executing a potentially innocent person, costs, efficiency, fairness, etc.) but not in principle, like myself, these arguments seem to reduce the complexity of the issue.

    To say that the state is killing someone to prove that killing someone is wrong is to purposely overgeneralize the actions involved. If someone kidnapped a person and locked them in a room, and then that person was later sentenced to prison, would you say that the state was locking someone up against their will to prove that locking someone up against their will was wrong?

    The point is, not all killing is equal. Is involuntary manslaughter the same as first-degree murder, the same as criminally negligent homicide? To say that killing is killing, and thats that, is remove the elements of intentions, causes, justifications and justice from crime and punishment.

    Sure, these are things people will always disagree about because they’re vague terms. But for a lot of people, justice means that when you wrongfully kill an innocent person (let alone rape and murder an 11 year old), then you no longer deserve to live because of what you have done. You may disagree with their “eye for an eye” mentality about this, but to say that people who want to see someone like Hayes executed are no better than he is, seems to me, to be a really unfair characterization.

    Reply
    1. AnonymousAbolitionist

      Thanks, Sonny! Very interesting comment, too. A few thoughts, though:

      To say that the state is killing someone to prove that killing someone is wrong is to purposely overgeneralize the actions involved. If someone kidnapped a person and locked them in a room, and then that person was later sentenced to prison, would you say that the state was locking someone up against their will to prove that locking someone up against their will was wrong?

      I don’t think I ever said that in this post–I think I simply said that if someone believes that the death penalty is “killing people to prove that killing people is wrong” and disagrees with it as a result, that was an independent reason to reject argument #2. I gave a second independent reason (one borrowed from death penalty proponents,) and argued against it through a third means as well. As it happens, I agree with you that “the state kills people who kill people to show that killing people is wrong” is a gross oversimplification of the issue–that’s why I didn’t present it as an argument.

      I think your second point here is very interesting, though. Assuming for a second that I buy into the “killing to show the wrongness of killing is wrong” vision (and once again, I don’t,) your question about imprisoning a kidnapper is an interesting one. This would be my answer, though it’d be great if someone from the “killing killers to show killing is wrong” school (Gideon?) could also weigh in. In short, the mere fact that locking up a kidnapper is, at bottom, equivalent to an eye-for-an-eye doesn’t make it wrong in and of itself. There’s no coherent principle that says “eye-for-an-eye justice can’t ever be right;” there’s merely no coherent principle that says “eye-for-an-eye justice will always be right.” There will be instances where things that are just or necessary (like, for instance, the very real need to incarcerate kidnappers for a whole hot of reasons,) will happen to coincide with eye-for-an-eye justice. Locking up kidnappers is one of them. Financial penalties for certain financial crimes is another–these are not just because they are eye-for-an-eye; they are just, and happen to be eye-for-an-eye.

      The point is, not all killing is equal. Is involuntary manslaughter the same as first-degree murder, the same as criminally negligent homicide? To say that killing is killing, and thats that, is remove the elements of intentions, causes, justifications and justice from crime and punishment.

      I’m not entirely clear what you’re replying to here; if I’ve misunderstood your point, please tell me, and I’ll be happy to re-reply. I agree that all killing is not equal; your discussion of gradations of homicide is the perfect illustration of that. But to draw a moral distinction between capital punishment and intentional murder (please note that I am talking about a moral distinction; I certainly acknowledge, as a simple reality, the existence of a critical legal distinction), I think we need to draw a distinction between a murder victim and an executed murderer, or between murderers and executioners, or between the act of a murder and the act of a lethal injection.

      If it’s the distinction between the murder victim and the executed murderer on which we rely, I think we run into the same problem I’ve described above: there’s no coherent theory (that I’ve heard yet) for revoking someone’s right to live–I’ve explained why I don’t think any of the theories I’ve heard make sense, and nobody’s provided us with a different one yet. If it’s the distinction between the murderer and the executioner on which we rely, I agree that there is probably some strange difference in culpability–though, strictly speaking, both are responsible for intentional killing, there is clearly a level of legal justification on the side of the executioner. Again, however, until someone can explain in a consistent manner why the executed murderer has forfeited his/her right to live, that legal justification cannot be a moral one. Relying on a distinction between the acts themselves obviously does nothing to resolve the moral quandary–both acts deliberately end a life; the only way one can be moral and the other immoral is if there is something fundamentally different about those lives or if the actor is ending that life in the service of some legitimate purpose. I’ve argued that neither of those things is true, and I’ve asked someone to explain to me either how the lives are fundamentally different (why a murderer forfeits their right to live) or how the death penalty is in the service of some morally legitimate purpose; thus far, we still haven’t heard an answer to either question.

      But for a lot of people, justice means that when you wrongfully kill an innocent person (let alone rape and murder an 11 year old), then you no longer deserve to live because of what you have done. You may disagree with their “eye for an eye” mentality about this, but to say that people who want to see someone like Hayes executed are no better than he is, seems to me, to be a really unfair characterization.

      I understand that anger and those feelings wholeheartedly. But what I said above was that anger and vengeance are insufficient justifications to strip the right of life from someone. To take that step, we as a society need a better reason. (And, as I note above, “they did it first, and did some other terrible stuff” is not a reason–first of all, “he hit me first” is not acceptable, even in first grade, but more importantly, the state exists, in large part, to prevent our anger, hatred, and animalistic instincts from taking over all of our interactions with our fellow humans, in an effort to maintain some level of civilization. Murderers have absolutely violated the basic code of our society and our need for civility; in so doing, they have lost countless of their rights; they have lost the right to walk among us (and they should), they have lost the right to their own freedom (and I would argue that they should), they have lost the right to set their own course in life (and I would argue they should), they have even lost the right to participate in our democratic society in the most basic way imaginable (and again, I would argue they should). But there is a clear justification that can be provided for the loss of each of these rights that they have forfeited–I am still waiting for a clear moral justification for the loss of the right to life. Absent that justification, and absent any non-psychic benefits (assuming, which is a big leap, that even psychic benefits exist), it seems to me indefensible to take the most basic and fundamental of rights from another human being.

      Finally, I never said

      that people who want to see someone like Hayes executed are no better than he is

      To say that I did is, in your words,

      a really unfair characterization.

      I would also agree that it would have been “really unfair” for me to make such a suggestion. I didn’t–I suggested that the desire of society to kill murderers is animalistic and flies in the face of the principles of civilized society without moral or practical justification. That’s a far cry from saying that those who support the death penalty are “no better than” murderers themselves. There are degrees of wrong here; while I believe that supporting the death penalty is morally unjustifiable, I do not believe, and have never suggested, that wanting the execution of a convicted murderer approaches the immorality of a murder itself.

      Reply
        1. AnonymousAbolitionist

          So, that’s sort of the challenge here, isn’t it? When talking about something that raises the sort of moral questions that the death penalty does, or that crosses the sorts of moral boundaries that murder does, all of this stuff becomes sort of squishy, and it’s hard to establish anything to a standard of any sort of real rigor.

          So, here’s my attempt, boiled down from the full post. Tell me with which step (or steps)you disagree–if we can pinpoint the spot where we disagree, that’s going to be a way more fruitful discussion for both of us.

          I would suggest that, given that the death penalty is a very serious thing to do to another person, and something that should not be undertaken lightly or without serious moral consideration and thought (I think both proponents and opponents of the death penalty can agree on that point), that you need to have some sort of justification; practical or moral for the penalty to be legitimate. I think this is particularly true given all of the things that ultimately weigh against the death penalty–even setting aside the things that I, or other abolitionists, may view as downsides and harms, there are objective harms to the continued existence of the death penalty that everyone can recognize. I’ve tried to walk through every practical justification I’ve heard and explain why they ultimately don’t hold water. So that leaves a need for a moral justification if we’re going to conclude that the death penalty is legitimate. “Moral justification” is obviously a broad category–it encompasses things beyond “this is a moral imperative.” But I’ve also tried to systematically argue against each of the moral justifications I’ve heard–if you buy my arguments against them (and you may not–tell me which and why, if that’s the case), all that’s really left is that vengeance is somehow desirable and that we’re (totally justifiably, in most cases), really angry at these people for the things that they’ve done. I’ve explained why those two reasons aren’t sufficient to undertake the awesome task of ending another human being’s life. But I guess their failings could also be summarized as follows: neither reason is philosophically defensible as a justification for the consequences–either it simply doesn’t justify a rational leap to the consequence, or a leap from the reason to the consequence, if the same logic is applied in other circumstances, is objectively unacceptable. (This is definitely the “squishiest” part of my post, but I still think I’ve laid out a coherent and consistent framework for evaluating the morality of a justification for the death penalty.)

          I guess, then, what I’d need to hear to say that something was a morally legitimate justification/reason would be to hear a reason that is internally consistent, logically leads to the conclusion that the death penalty is desirable, and can be extrapolated to other circumstances without producing crazy results.

          Here’s a useful example… the biggest reason that I’m philosophically OK with locking other people in jail or prison (setting aside all questions of our system being broken, our jails and prisons being awful, etc.), is a concern of safety–by separating people who have done bad things to other people from those other people and the instrumentalities of doing bad things, we are doing a decent (though imperfect) job of protecting ourselves from those who would maliciously hurt us. This is internally consistent, the desire to protect ourselves from people who do bad things logically leads to the conclusion that we should separate them from ourselves somehow, and the principle at play (our collective right to safety trumps the right to freedom of someone who would deliberately undercut that safety) can be universalized without producing anything like the “I take money from the rich because it feels good” scenario I talked about in my post.

          I’m sorry this is so long–it’s definitely not an easy question, and I’m just trying to make sure I at least give you some form of an answer.

          Reply
      1. Sonny

        AnonymousAbolitionist,

        Thanks for your well thought out reply. You make some really good points, and I was speaking more to some of the other comments regarding the characterization of a pro-capital punishment as morally equivalent to murder. You certainly made no such argument in your post.

        I understand what you mean when you say that:

        There’s no coherent principle that says “eye-for-an-eye justice can’t ever be right;” there’s merely no coherent principle that says “eye-for-an-eye justice will always be right…”

        Again, however, until someone can explain in a consistent manner why the executed murderer has forfeited his/her right to live, that legal justification cannot be a moral one.

        but I think that you’re viewing one type of punishment, the most drastic one that we have, differently than all other kinds of punishment.

        To elucidate my point a little bit: I think that it is possible to draw a line between crime and punishment of crime, in the sense that the punishment for a crime is only a response to the seriousness or magnitude of the crime committed (seriousness and magnitude being determined by the legislature and the courts).

        For example, I don’t know if you remember this, but a few years back an American was sentenced to caning in Singapore for spraying graffiti. Can anyone explain why the graffiti artist has forfeited his right to be free of bodily harm? Sure, you could say that he committed the crime, and the punishment for that crime is caning, but that explanation posits no logical relationship between the act of spraying graffiti and being caned.

        You stated that:

        Murderers have absolutely violated the basic code of our society and our need for civility; in so doing, they have lost countless of their rights; they have lost the right to walk among us (and they should), they have lost the right to their own freedom (and I would argue that they should), they have lost the right to set their own course in life (and I would argue they should), they have even lost the right to participate in our democratic society in the most basic way imaginable (and again, I would argue they should). But there is a clear justification that can be provided for the loss of each of these rights that they have forfeited–I am still waiting for a clear moral justification for the loss of the right to life.

        What is the justification for taking away all of the rights you mentioned? Is it not simply that they have been found guilty of committing a crime and the punishment for that crime dictates that they be sentenced to 20/30/40/life in prison?

        Ultimately what I’m trying to understand is, why you feel the death penalty warrants greater justification above and beyond the justifications for any punishment.

        We have a sliding scale of penalties for criminals, and the death penalty is reserved for what the legislature and the people view as the worst crimes. This means that the death penalty is a greater penalty than life in prison, for when the crime committed is a greater crime than one that would warrant life in prison.

        In short, I don’t think the justifications for this issue come down to eye-for-an-eye, because there are many situations where you can willfully kill someone and not be sentenced to death, for example 2nd degree non-felony murder. Rather, this punishment is the most extreme one that we can impose for acts that we consider to be the most harmful/depraved/evil (at least thats when I think it should be used). I just don’t think it needs any justification above and beyond the justification for any punishment.

        Again, great post, and nice conversing with you.

        Reply
        1. AnonymousAbolitionist

          Sonny-

          Sorry (once again) about the length of this comment. But thanks for the reply; I hope I’ve responded to your thoughts here–if I’ve misunderstood something, please tell me.

          AnonymousAbolitionist,
          Thanks for your well thought out reply. You make some really good points, and I was speaking more to some of the other comments regarding the characterization of a pro-capital punishment as morally equivalent to murder. You certainly made no such argument in your post.

          Isn’t “AnonymousAbolitionist” the worst username of all time? Gideon had some amusing suggestions for alternatives that would completely destroy my efforts at anonymity, but sadly, I like being employed. I’m sorry for jumping down your throat there–thanks for clarifying, and thanks for your comments–I hope you’re finding this interesting too.

          To elucidate my point a little bit: I think that it is possible to draw a line between crime and punishment of crime, in the sense that the punishment for a crime is only a response to the seriousness or magnitude of the crime committed (seriousness and magnitude being determined by the legislature and the courts).

          I’m not totally sure I understand what you’re saying here; descriptively, I think you’re spot-on. But I would argue that to be legitimate, that determination by the legislature and the courts still has to be a just one. If I’m still missing what you’re saying here by the end of this comment (dissertation?), let me know.

          For example, I don’t know if you remember this, but a few years back an American was sentenced to caning in Singapore for spraying graffiti. Can anyone explain why the graffiti artist has forfeited his right to be free of bodily harm? Sure, you could say that he committed the crime, and the punishment for that crime is caning, but that explanation posits no logical relationship between the act of spraying graffiti and being caned.

          I actually remember it pretty well… and I just Googled it for a few details. Michael Fay, an American, allegedly spraypainted some graffiti on cars, stole a few street signs, and was sentenced to four months, fined in excess of $2000 US, and caned four times (originally six, reduced to four after Bill Clinton convinced the Singaporean government to be “lenient.”

          (Also, interesting sidenote, a similar case (graffiti, foreigner, punishments that many Westerners would view as excessive) has just recently popped up in Singapore. Check it out here: http://en.wikipedia.org/wiki/Oliver_Fricker. Don’t miss the fascinating comparative law fact that the appellate court increased his sentence above that imposed by the trial court.)

          Anyway, sorry for the aside there. I guess the short version of my answer to your question is that Fay didn’t forfeit his right to be free from bodily harm when he (allegedly) committed vandalism. The long answer is that I agree with you that there is no relationship (except the fact that the Singaporean code does make one the legal sentence for the other) between the act of the graffiti and the punishment of caning (or the punishment of a four month sentence, or the punishment of more than $2000 in fines, or the punishment (albeit informal) of enduring interrogation and investigation at the hands of the Singaporean police force). But I also think that nearly the entire system of Singaporean “justice” is illegitimate from top-to-bottom. We’re talking about a country that restricts a whole category of criminal punishment (caning) based on the gender of the defendant. We’re talking about a country that canes foreigners who overstay their visas. We’re talking about a country with a mandatory death penalty for anyone caught with .07 grams of heroin or half an ounce of weed. We’re talking about a country that relies on despicable interrogation methods to extract dubious confessions and sentences people to jail time, caning, or death on those grounds. In short, we’re talking about a country which, I would argue, lacks any moral legitimacy in their criminal justice system–the only legitimacy their system and its operation have is that they’re created by the laws of that country.

          But (and this is true in any system, even ones that aren’t Singapore,) the fact that something is the law is a far cry from the conclusion that something ought be the law. So I hear what you’re saying, but I think that to use the Singaporean system or anything they do as instructive just doesn’t work. So in many ways, the way I view the caning is similar to the way I view the death penalty–yes, it is the law, but it is, to my mind, a law that lacks any reasonable justification for its imposition.

          I think that you’re viewing one type of punishment, the most drastic one that we have, differently than all other kinds of punishment.

          You’re absolutely right–I am viewing the death penalty very differently from all other forms of punishment. For ease of discussion, I’ll oversimplify things here and say that the other forms of available punishment are pretty much just incarceration and fines. Fair?

          I think a fine can be justified pretty simply and easily. There are certain acts that are bad acts (I hesitate to call them crimes, simply because I think that word overstates the nature of these things) which are, we have decided, harmful for our society. Accordingly, we want to dissuade people from acting in those ways, we want to punish those who do, we want to dissuade people from repeatedly acting in those ways, and we want to put a manifestation of societal disapproval on that conduct. But these same bad acts are not dangerous to others, do not evidence anything to suggest that the actor is dangerous, are easily remedied, and are not places where a failure to punish would be a catastrophe or a problem–it’s simply that some level of punishment would be desirable. So we fine people–it’s the most minor penalty of which I can think that will still be felt by people in such a way that it may have an impact on behavior. (If you can think of an alternative to fines, tell Gideon; I’d love to read that post.)

          So we’re left with incarceration, and all of its attendant rights restrictions… and you ask:

          What is the justification for taking away all of the rights you mentioned? Is it not simply that they have been found guilty of committing a crime and the punishment for that crime dictates that they be sentenced to 20/30/40/life in prison?

          You’re right that, as with caning or the death penalty, independent of the morality of the punishment and our decision to impose it, the formal and factual legal imprimatur on the imposition of the punishment matters–in a very real sense, though it shouldn’t matter to our considerations of whether something is “moral” or “just.” It would be ridiculous for me to deny that the sanction of those punishments doesn’t change them in terms of what they actually are; I’m simply arguing that the sanction doesn’t change them in terms of their morality or desirability.

          So what is the justification for taking away liberty and all of its attendant rights when we lock someone up? There are a few possibilities I can think of, and I’d be lying if I said that I found any one of them particularly persuasive on its own merits. On the flip side, I think taken together, they make a pretty compelling case that incarceration (though not necessarily as it exists in its present form–that’s a subject for a whole separate post from Gideon, (hint hint) if not a whole separate blog) is justified. First of all, looking at the rough rubric I sketched out for why fines are OK, assuming a reasonably functional facsimile of our criminal justice system, incarceration is the best tailored penalty for the people who ultimately face it. Take all of the so-called purposes of punishment (deterrence, incapacitation, expression, rehabilitation, and retribution); all of these are served by incarceration (except rehabilitation, arguably, though I’m not sure that there’s another way to attempt to rehabilitate someone while effecting the other four purposes… Gideon?). A more lenient punishment will be insufficient in most instances, and the only greater punishments would be corporal or capital; I would argue that those can’t ever be justified. So incarceration is, quite literally, the middle ground. Is there a feasible alternative that serves all of the reasons we should punish? Maybe–I can’t think of it, though.

          Specifically to the rights I mentioned and you asked about, though, the right to liberty is lost simply because it has to be; without stripping convicted criminals of that right, we would be powerless to punish them in the most appropriate possible way–once you’ve stripped the right to liberty, all of the attendant rights which are lost when incarcerated are stripped to ensure that incarceration is possible and safe–on a right-by-right individual level, I think we probably overstrip, but that seems to be a more practical inquiry into effective prison administration than a philosophical one. In this calculus, the most important purpose of punishment to be considered is incapacitation. Most of the people who face exposure to incarceration have done something with harmful consequences to others, and for the protection of society, we have to ensure that they, as a criminal defense friend once put it, go hang out by themselves somewhere. Setting aside any questions of punishment, expression, anger, or anything, that’s a question of protecting ourselves and our safety–given that to ensure our protection we must strip either the freedom or the life of these individuals, clearly stripping their freedom is preferable. (I don’t have too hard of a time answering the rights-balancing question between the safety of innocents and the liberty of someone who puts them at risk; it’s in fact slightly easier than my conclusion that lethal self-defense/defense of others is justified.) Obviously, this argument runs into the problem that plenty of people who face incarceration are extremely unlikely to recidivize. True, but many of them are going to recidivize given the choice–and if Dr. Death has taught us anything, it’s that we’re exceptionally bad at figuring out who falls into which category. Still, in the instance of the people where we don’t know whether they’ll recidivize, pull in the arguments about the other purposes of punishment and the arguments about incarceration being the best-tailored punishment, and I still come down on the side of “incarceration is meaningfully linked to what it’s supposed to do, justified in terms of what it’s supposed to be punishing, and justified in terms of its place within a society.”

          Ultimately what I’m trying to understand is, why you feel the death penalty warrants greater justification above and beyond the justifications for any punishment.

          I think one of the unspoken themes running through my original post is that I can’t find a single affirmative argument in favor of the death penalty that holds any water. There aren’t too many things in our society, our legal system, or even in our criminal justice system, where I can’t find a single argument on each side. So I’m not sure that I even would require greater justification; I just haven’t seen any yet–and the justification that I require for fines and incarceration is not a low bar, either.

          But let’s assume, for the sake of discussion, that I would require greater justification than I do for incarceration or fines–part of that would be because of the fact that there is so much more weighing on the opposite side of the scale when it comes to the death penalty; pragmatics, the reality of its implementation, and the psychic cost which is, in fact, simply unique from the psychic cost of being in a society that locks people in cages. So while I might require greater justification in absolute terms, in terms relative to the amount weighing against the use of the punishment, I don’t think it would be greater–it would simply be that the weight on the other side of the balance is greater, so more is required to tip it.

          We have a sliding scale of penalties for criminals, and the death penalty is reserved for what the legislature and the people view as the worst crimes. This means that the death penalty is a greater penalty than life in prison, for when the crime committed is a greater crime than one that would warrant life in prison.

          I agree with everything you’ve said here. (So, in theory, does the death penalty system–hence the need to “qualify” to be death-eligible and the additional procedural requirement that the jury weigh aggravating and mitigating evidence in determining whether any death-eligible defendant actually be sentenced to die.) I also think it illustrates what I’m saying about balancing, though–as we increase the length of time that someone serves in prison, the weight on the scale against giving that punishment increases because the right to liberty and its attendant rights are revoked for longer, someone’s life is destroyed to a greater degree, etc. But on the other side of the scale, we have the added weight that the conduct for which they are being punished is worse–which is exactly why we can justify the increased weight on the side of the scale that weighs against the punishment.

          (I hadn’t ever combined the idea that we reserve the death penalty for the “worst” murders with the balancing scale idea before–this is really interesting… and in some ways, very much a bird’s eye view of the whole battle between aggravating and mitigating factors at the penalty phase of a capital trial… the way you’ve mixed the two issues of “extra justification” with what you view as that extra justification is really interesting… thanks for making that connection.)

          In short, I don’t think the justifications for this issue come down to eye-for-an-eye, because there are many situations where you can willfully kill someone and not be sentenced to death, for example 2nd degree non-felony murder. Rather, this punishment is the most extreme one that we can impose for acts that we consider to be the most harmful/depraved/evil (at least thats when I think it should be used). I just don’t think it needs any justification above and beyond the justification for any punishment.

          So, it naturally follows from my agreement with your last paragraph that I agree that if you’re going to have the death penalty, it should be

          the most extreme one that we can impose for acts that we consider to be the most harmful/depraved/evil

          And I suppose that the harmfulness/depravity/evil etc. of the crime would be a weight in favor of the massively increased penalty. But the jump from life in prison to death is a big jump; both of kind and of degree. And when you make that jump, you sweep many of the arguments that support a lengthy (or permanent) incarceration straight off the scale, and sweep a host of new arguments on to the opposing side of the scale. So from that perspective (and I apologize for beating the scale metaphor to death), you’ve got one small new weight in favor of death standing without too much else, against a host of new weights against death.

          I would also just note, that, as I said to Gerard, this stuff is really “squishy,” and that on some level, as much as I do try to put this in rational terms, and try to unpack the issues into coherent and consistent blocks, a man much smarter than I was, to my mind, totally correct when he said “death is different.”

          Again, great post, and nice conversing with you.

          You too! Thanks so much for all of your thoughts and discussion so far–it’s been a really interesting conversation. If you’re up for it, I’m more than happy to keep going; this is exactly what I was hoping would happen when Gideon put the post up.

          Reply
          1. Gerard

            In one of his books, Dirk Gently’s Holistic Detective Agency, if memory serves, Douglas Adams write a scene where a software developer is discussing decision-making software. (This is a paraphrase from memory)

            The problem with most decision making software is you put in all the factors regarding a situation and it produces the logical conclusion. This just annoys people. What my software does is you put in the factors and the conclusion you want and it constructs the arguments to get there.

            Your rhetoric is reminiscent of that scene for me. There’s no evidence you would accept any argument in favor of a death penalty. Studies showing deterrence effect? Flawed. LWOP being released alive? Rare and insignificant.

            Your argument contains, in Wikipedia terminology “weasel” words. e.g. “philosophically defensible”,”rational leap,” et. al. (“Weasel” is this case meaning words of mutable meaning depending on point of view.) Presumably any leap made by a death penalty proponent would be irrational.

            As noted by Sonny nearby, the state routinely deprives people of various natural liberties and we routinely accept homicide by the state in other circumstances (line of duty shooting by police). There’s a reasonable argument that the death penalty differs only in the severity of punishment.

            “is meaningfully linked to what it’s supposed to do, justified in terms of what it’s supposed to be punishing, and justified in terms of its place within a society,” could very well be used a justification for the death penalty itself.

            There’s a certain asymmetry to your arguments: concerns about convicted offenders killing again can be managed by increased efficiency of the state in
            prison administration, but concerns about executing innocents are intractable. The ‘life without parole means exactly that’ is invalid; future legislatures are not bound by current law and could change the rules in the future.

            Vengeance has been mentioned: of course it’s about vengeance. (A sense of fairness is biology intrinsic to primates.) Part of the social contract is we give up our individual claims to vengeance — which causes multiple societal problems — in favor of the state. The state, however, is expected to extract vengeance on our behalf.

            The state derives it’s authority from the “consent of the governed.” As the people of CT support the death penalty (as does the nation), the state is reflecting the will of the people.
            (As an aside, politically the legal system does itself no favors when it uses terms like “life sentence” and “life without parole” (LWOP) as distinct entities. Publicity about “life” prisoners being paroled is easily confused in the public with the so-called LWOP prisoners, increases cynicism about the legal system and thereby generates greater acceptance of the death penalty.)

            You have yet to provide any reason why your moral compass is superior to that of the population as a whole. The argument for the death penalty is that is what the greater “we” feel is appropriate for certain crimes.

            Personally, I oppose the death penalty on pragmatic grounds. Either we expend more public resources enacting the death penalty with adequate protections that LWOP would cost, or we execute willy-nilly, even if our PD was asleep during the trial, like certain other states. Additionally, we perceive a distinction between acts of commission and omission. A person intentionally setting fire to a house containing a baby in a crib would be condemned (and hopefully imprisoned) yet a person who fails to run into a burning house to save the baby is not.

            For me, the state using it’s power to execute an innocent is both more egregious (and more likely) than a convicted murderer killing again.

          2. Pauline

            Part of the social contract is we give up our individual claims to vengeance — which causes multiple societal problems — in favor of the state. The state, however, is expected to extract vengeance on our behalf.

            I respectfully disagree with the latter part of this statement. The state is not supposed to act with an idea of “vengeance”–the state is expected to be fair and impartial. (Whether it actually does act this way is, of course, open to debate.) I understand vengeance is a sort of primal instinct for humans, but that’s why it shouldn’t be a factor in what the state does. I would be concerned if the state was looking to exact revenge, because that’s not its role, in my opinion. The state is not meant to be a vigilante. Justice and vengeance are two very different things.

          3. AnonymousAbolitionist

            You’ve made an awful lot of presumptions here about me and about what I’m willing to do and what I would do in various scenarios–I’m more than open to the possibility of an argument in favor of the death penalty being persuasive–I just haven’t heard it yet. What I have done is go through each argument I’ve heard and explain exactly why I don’t find it persuasive, in plain terms, laying out each logical step. I’ve also acknowledged the flaws in my own arguments. Rather than making presumptions about what I will or won’t do in a hypothetical scenario, if you disagree, explain why–it’d be much more fruitful to have a discussion.

            You characterization of my responses to LWOP and studies suggesting deterrence is entirely oversimplified and unfair. The fact that the studies favoring deterrence are biased and methodologically flawed was one small part of my response; I placed the flaws and bias as observations before saying that if we consider all of the studies as being equally valid, the evidence is, at best, inconclusive. That’s a far cry from your characterization of my argument. Similarly, my argument to LWOP wasn’t that releases are “rare and insignificant,” my argument was to consider the only actual ways that someone can be released from such a sentence and discuss why those ways need to exist, and why they don’t pose a real danger. I don’t have easy access to the statistics of how many LWOP inmates have been released for a reason other than a demonstration of innocence–maybe you do; if you do, please share them; it would be a helpful data point to have for this.

            To simply say:

            “is meaningfully linked to what it’s supposed to do, justified in terms of what it’s supposed to be punishing, and justified in terms of its place within a society,” could very well be used a justification for the death penalty itself.

            falls into the same Douglas Adams trap you’ve described above. You may be right–maybe that could be used as a justification for the death penalty, but nobody has yet explained to me why those statements are true about the death penalty. And I have presented arguments in logical progression explaining why I believe they don’t. That’s not to say that my arguments can’t be refuted. They can be challenged and subjected to counter-arguments and alternative visions and interpretations–simply repeating what I’ve said and saying that it could be used to support capital punishment doesn’t articulate why that’s true, however–I’ve walked through the links and explained them–I’m waiting for someone to do that on the other side. Here it is again, in short form.

            1. Meaningfully linked to what it’s supposed to do. I’ve explained why, in practical terms, the death penalty doesn’t do what it’s supposed to do. You (apparently–not entirely sure about your argument), seem to agree. So what’s left is that it also allows us to sate vengeance and allows us to feel good about what we’ve done. I explained why those aren’t valid goals for our system. That my explanation includes “weasel words” because I’ve used terminology that Wikipedia doesn’t like doesn’t mean I haven’t started from a premise (which can be challenged), and then used logic (which can be challenged), to reach an ultimate conclusion (which, if one challenges the premise or the logic, is also challenged). So, it’s not, according to my arguments, logically linked to anything it’s supposed to do. You can tell me where I’ve erred, or what it is linked to that I’ve forgotten–I’ve been more than happy to listen to and engage with these arguments; I would think that showing of good faith should be enough on its own to suggest that if I encounter a persuasive counter-argument, I am in fact open to it.

            There’s a certain asymmetry to your arguments: concerns about convicted offenders killing again can be managed by increased efficiency of the state in
            prison administration, but concerns about executing innocents are intractable. The ‘life without parole means exactly that’ is invalid; future legislatures are not bound by current law and could change the rules in the future.

            I’m not sure that assymetry is inappropriate, however. Prisons can be fixed, or, at a minimum, made substantially safer. Superior training for CO’s, better protocol for ensuring that no inmate is ever in direct contact with anyone else without sufficient restraints, and additional perimeter physical security measures could substantially improve the safety of existing facilities, and the science of incarceration design and safety can have remarkable effects for future buildings. On the flip side, so long as human beings are left to make decisions with all of the emotions that guide them, there will be a risk of killing innocents–that’s a problem of human nature, not institutional design. And furthermore, you’ve simply latched on to two arguments I’ve made as part of a large group of arguments that I have then weighed against each other. (As to your LWOP point, my knowledge of retroactivity after changes in sentencing law is, admittedly, limited, but I believe that someone under an LWOP sentence would not get relief if LWOP was subsequently eliminated in a state–this may be wrong, however. In any event, if I am wrong, then the death penalty is no better of a guarantee of the sentence actually being carried out.)

            I think Pauline effectively addressed your social contract point below.

            (As an aside, politically the legal system does itself no favors when it uses terms like “life sentence” and “life without parole” (LWOP) as distinct entities. Publicity about “life” prisoners being paroled is easily confused in the public with the so-called LWOP prisoners, increases cynicism about the legal system and thereby generates greater acceptance of the death penalty.)

            As an aside, I totally agree with your aside.

            You have yet to provide any reason why your moral compass is superior to that of the population as a whole. The argument for the death penalty is that is what the greater “we” feel is appropriate for certain crimes.

            This is interesting,. You’re right–I haven’t provided a reason that my moral compass is intrinsically good. What I have done is explain why the moral compass you’ve just dexcribed is intrinsically bad. At that point, mine is better because it’s not that one, and because I haven’t yet found logical flaws in its concept and operation. This, incidentially, is a large part of why I’m open to counter-arguments. Or even to alternative moral compasses, if they’re based in something more rational than anger and vengeance.

          4. Gerard

            In one of his books, Dirk Gently’s Holistic Detective Agency, if memory serves, Douglas Adams write a scene where a software developer is discussing decision-making software. (This is a paraphrase from memory)

            The problem with most decision making software is you put in all the factors regarding a situation and it produces the logical conclusion. This just annoys people. What my software does is you put in the factors and the conclusion you want and it constructs the arguments to get there.

            Your rhetoric is reminiscent of that scene for me. There’s no evidence you would accept any argument in favor of a death penalty. Studies showing deterrence effect? Flawed.
            LWOP being released alive? Rare and insignificant. Perhaps.

            (As an aside, politically the legal system does itself no favors when it uses terms like “life sentence” and “life without parole” (LWOP) as distinct entities.
            Publicity about “life” prisoners being paroled is easily confused in the public with the so-called LWOP prisoners, increases cynicism about the
            legal system and thereby generates greater acceptance of the death penalty.)

            Your argument contains, in Wikipedia terminology “weasel” words. e.g. “philosophically defensible”,”rational leap,” et. al. (“Weasel” is this case meaning words of mutable meaning depending on point of view.) Presumably any leap made by a death penalty proponent would be irrational.

            As noted by Sonny nearby, the state routinely deprives people of various natural liberties and we routinely accept homicide by the state in other circumstances (line of duty shooting by police). There’s a reasonable argument that the death penalty differs only in the severity of punishment.

            “is meaningfully linked to what it’s supposed to do, justified in terms of what it’s supposed to be punishing, and justified in terms of its place within a society,” could very well be used a justification for the death penalty itself.

            There’s a certain insymmetry to your arguments: concerns about convicted offfenders killing again can be managed by increased effiency of the state in
            prison administration, but concerns about executing innocents are intractable. The ‘life without parole means exactly that’ is invalid; future
            legislatures are not bound by current law and could change the rules in the future.

            The state derives it’s authority from the “consent of the governed.” As the people of CT support the death penalty
            (as does the nation), the state is reflecting the will of the people.
            You have yet to provide any reason why your moral compass is superior to that of the population as a whole.

  10. LJS

    Ultimately what I’m trying to understand is, why you feel the death penalty warrants greater justification above and beyond the justifications for any punishment.

    I think I’d start with the US Supreme Court, which has consistenty said that “death is different”. See e.g. Gregg v. Georgia, 428 U.S. 153 (1976). I mentioned above the problem of many of the folks discussing the death penalty who have no in-depth experience with a capital case.

    You can see the differences, and the misunderstandings, in voir dire. In Connecticut we have a state constitutional right to individual voir dire and that offers a window into what hundreds of everyday citizens think about capital punishment. One sees the folks who, when faced with being the person to make that decision, say they cannot possibily vote to kill another person, regardless of the evidence. One sees the folks who say that given a brief description of the likely facts say they could not possibly consider any mitigation evidence and would always vote to kill a person who committed such a crime. One sees folks honestly strugging with whether they can make that decision, and utimately say that they will do their best to be fair and follow the law. One hears all sorts of folks who, prior to the case at hand, had no idea that not all murders were death penalty eligible. And all sorts of views about what life in a maximum security prison is like. And from the jurors, to the judge, to the attorneys, one sees the awesome responsiblity of this decision.

    My concerns, I must say, are more procedural than moral, at this point. Until and unless the criminal justice system can show me that it can reliablity convict folks given the known problems with eyewitness ID, forensics, false confession, and snitch/co-offender testimony; the known problems with “death-qualified” jurors being more prone to convict and to ignore mitigation evidence; and the known problems with death penalty defendants being disproportionalty minority, poor, and with mental health issues, I can’t get past the pratical issue to decide the moral question.

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  11. Sonny

    LJS,

    I agree with you completely, regarding reliability and bias issues, and I wasn’t referring to the legal problems with capital punishment in my post… as I stated in my first post:

    I think for a lot of people who oppose Capital Punishment in practice (due to concerns about executing a potentially innocent person, costs, efficiency, fairness, etc.) but not in principle, like myself,

    So yeah, practically, capital punishment is unworkable and raises too many red flags. I just think that it doesn’t require greater moral justification in principle than other punishments.

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  12. LJS

    So yeah, practically, capital punishment is unworkable and raises too many red flags. I just think that it doesn’t require greater moral justification in principle than other punishments.

    Byits nature, the death penaly involves moral questions — what makes some homicides more heinous than others to make them eligible for the death penalty in the first place? Gen. Stat. s. 53a-54b gives us a list of specific kinds of murders. Even if the criminal has done one of those eight really heinous acts, the jury still has to find beyond a reasonable doubt that there is at least one statutory aggravating factor (Gen. Stat. s. 53-46a), and that the defense hasn’t proven a statutory mitigating factor by a preponderance of the evidence (s. 53a-46a), AND that any non-statutory mitigating factors proven by the defense by a prepondernace of the evidence do not outweight the statutory aggravating factors.
    See http://www.cga.ct.gov/2005/rpt/2005-R-0136.htm

    Confused? Think about the poor jurors in these cases. I don’t envy them the task.

    Death is inherently different — you can feel it in a courtroom from the moment the first juror comes in for a voir dire in a case where the death penalty is on the table. It is there for each attorney, and for the appellate and habeas attorneys. Even if you have had clients who faced sentences so long that they will without doubt die in prison, it is different emotionally than a capital case. I’m not sure I can say why this is so, but it seems universally felt by everyone involved.

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  13. John

    I believe in God, and I also believe in Reason. The two are not incompatible. In the first case, to kill without reason is immoral. This raises a couple of questions: is punishment a sufficient reason? Are any of the others you discuss? I have my doubts. Second, the only place we hear God saying, “put them to death”, is in the Old Testament making laws for Jews, referred to as Mosaic Law. But for Christians, Jesus instructed us to no longer follow the Mosaic Law. So I (and other Christians) do not find a defense in the Bible for the death penalty. And I am personally confused as to whether in fact, a death sentence is judgment of the soul, which we are also not allowed to do.
    Reason: one theory of what is moral classifies a belief (etc) that best serves the society, that improves it, that provides happiness for the greatest number of people and so on, is moral. And I’d say without an extreme exercise in logic, that the death penalty _does not_, make any marked improvement in society and therefore, is probably immoral.

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