Dead Man Walking

August 12, 2004 | 67 comments
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Sister Helen Prejean, a Catholic nun, published Dead Man Walking in 1993. I am just finishing the book, which reinforces my long-held disdain for the death penalty. I have not seen the movie, but the book is a powerful accounting of Sister Helen’s experiences counseling death-row inmates in Louisiana.

I will not engage in an extended examination of the death penalty from a Mormon perspective. If this post puts you in the mood for such reading, you might start with PoliticalJustice.com (which, for reasons not clear to me, does not link to Times & Seasons, despite having a Mormon blogroll … hint, hint). For present purposes, suffice it to say that my primary objection to the death penalty is based on my distrust of the state to get these decisions right. Not only are innocent men too often convicted and sentenced to death — see here, for example, or here for a description of the Wisconsin Innocence Project that is housed at my law school — but the death penalty is applied unevenly to the most disadvantaged criminal defendants.

We know, of course, that the Old Testament prescribes death as the penalty for murder (Genesis 9:6) and adultery (Leviticus 20:10). On the other hand, I think we can all agree that present circumstances are considerably different than those that prevailed at the time when these verses were written. Moreover, the modern Church has taken no official position on the death penalty, suggesting that these Old Testament verses are not binding on us today.

Actually, it is the Church’s statement refusing to take a position on the death penalty that inspired me to write this post. For many years, I assumed that the Church’s refusal to take a position on the death penalty was simply a matter of political restraint, but in light of the First Presidency’s recent endorsement of constitutional amendment to prohibit gay marriage, I am puzzled. Assuming inspired leadership, I wonder whether we can infer anything about the death penalty or SSM or their relative moral or social importance from the fact that the First Presidency is willing to expend political capital on SSM, but does not take a stand on the death penalty.

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67 Responses to Dead Man Walking

  1. Jordan Fowles on August 12, 2004 at 1:33 am

    Here, here, Brother Smith!

    I think it is immoral that our tax dollars are used to put innocent people to death in the name of the State. Although many of those executed have been guilty, there have been enough people on death row who have been proven innocent that I shudder to think of the innocents who may have been executed in my name (through the State).

    However, I am still trying to figure out if my opposition to the death penalty is based only on due process concerns, or if I am fundamentally opposed to it as a good Catholic would be.

    Whatever the case may be, I think there ought to be an instant moratorium on the death penalty in this country AT LEAST until we can figure out how so many innocent people landed on death row, if not forever more.

    Justice is God’s, and although a government may punish its criminals, the penalty of death is so irreversible that it ought to only be performed, in my opinion, if God Himself were to institute it and personally appoint someone to determine who is innocent and who is guilty.

  2. Jordan Fowles on August 12, 2004 at 1:38 am

    One more thing. The last time I discussed this issue with a Church Member, he waved the “Blood Atonement Doctrine” in my face. If there is such a doctrine, then I would guess it would have to be voluntary, like everything else in the Gospel. Meaning that being sentenced to death by a jury of your peers or a judge simply won’t pass muster for such a doctrine, if it even exists.

  3. john fowles on August 12, 2004 at 1:49 am

    I like to think that God is willing to leave a large number of things up to us in how we order our society and our punishments. I agree with you that societal circumstances are much different now than in OT times, when capital punishment for those sins was as much a cleansing tool for a society with a more collectivist mentality as it was a retributive punishment for the guilty. Such a concept of ritual cleansing is misplaced in our post-Enlightenment, fragmentalized and hyper-individualized society.

    So here’s the catch in my perspective: since God is willing to let us order society on issues that He has not provided specific guidance for through direct revelation, we can either use the death penalty or not. To take your inference about the absence of a statement on the death penalty by the First Presidency to its logical extreme, God is neither for nor against the American death penalty. If we as a society decide that justice demands the lives of depraved individuals who murder, then that is just fine with God–He can do whatever He wants with them once they get into spirit prison.

    I don’t know if you are “progressive” or “liberal” Gordon, but when you said my primary objection to the death penalty is based on my distrust of the state to get these decisions right I recognized a standard “progressive” argument for abolishing the death penalty. So here’s a question: why are “progressives” so distrusting of the state (i.e. courts) to get things right when it comes to the death penalty but put full faith into the courts on social issues like abortion and SSM? Is that an inconsistency? Does it reveal a hidden anti-democratic tendency within the Left in which on the one hand there is a disdain and distrust for juries who as peers of the accused have the power to send them to their death but on the other hand a shining faith in (certain) individual judges to create new social policy that many would argue is within the legitimate domain of democratically elected legislatures? That is, do “progressives” prefer judges to juries?

  4. ronin on August 12, 2004 at 1:57 am

    While I agree that there are a few people sitting on deth row who might be innocent, I did not find Sister Prejean’s account moving at all. She seemed to display a totally callous disregard for the victims, and seems to be a cheerleader for the kind of liberal-left viewpoint where all murderers are “victims of the racist, sexist, oppressive” society that America supposedly is.
    I have actually gone to see Sister Prejean speak in detroit a few years back when her book first came out, and I was not impressed by her. Not only did she did not make a strong case for why she believed that the death penalty was wrong, but, she said that seeking justice for the actual victim and for the victim’s family was ‘irrelevant”. This kind of total rejection fo the victim’s and the suffering t hey had to endure shocked me. Like one of my catholic friends told me – I think she is a lonely lesbian woman who chose to become a nun, and is now getting her kicks by trying to be the savior of the ‘bad guys”!!

  5. Gordon Smith on August 12, 2004 at 1:57 am

    Jordan, “… if I am fundamentally opposed to it as a good Catholic would be.”

    Is it true that a “good Catholic” is fundamentally opposed to the death penalty? Sister Helen often refers to the “good Catholics” in Louisiana who chastised her for opposing executions.

    Blood Atonement Doctrine? Yuck.

    I used to wonder whether my opposition to the death penalty was “fundamental,” too, but I have largely given up on coming to an answer. But given my doubts about the ability of any secular tribunal to make this decision in a consistently just manner, the fundamental moral issue — would the death penalty be justified in a perfectly administered state — seems irrelevant.

  6. Jordan Fowles on August 12, 2004 at 1:58 am

    John, you’d have to ask a real “progressive”. (I know you were addressing Gordon, but still…)

    All I know is that neither judge nor jury gets it right, and I don’t think they get it right in other arenas either. But I’m more willing to live with that in other arenas, since people’s lives aren’t extinguished.

    Per JBF: If we as a society decide that justice demands the lives of depraved individuals who murder, then that is just fine with God–He can do whatever He wants with them once they get into spirit prison.

    That’s all good and fine, but what about the people who AREN’T guilty? To me, the thought of even one mistake here justifies using tax dollars to pay for the rest to spend life in prison rather than face execution. But I know we disagree on this…

    Gordon: Here’s a question for Gordon- what if a person CONFESSED to murder, and wanted to be put to death by the State because he or she thought it was the only way to atone for that sin? Would you say that the State STILL couldn’t do it even in that circumstance? (I’m not even sure what I think on that, so I am tossing it around in my mind…)

  7. Jordan Fowles on August 12, 2004 at 2:05 am

    Gordon,

    I never really thought there was much doubt that (officially) Catholics were consistent on their pro-life stance all the way to the death penalty (regardless of what INDIVIDUAL Catholics may have said about it). Maybe I was wrong… it has happened before. :)

  8. Jordan Fowles on August 12, 2004 at 2:10 am

    Gordon: Re “blood atonement”- I agree. That was in response to a comment posted on my death penalty thoughts (on my blog) by Lyle. I had assumed that other mormons might have similar sentiments so I wanted to address it.

    I don’t think there is one, but “if there were…”

  9. Gordon Smith on August 12, 2004 at 2:14 am

    John: “To take your inference about the absence of a statement on the death penalty by the First Presidency to its logical extreme, God is neither for nor against the American death penalty.”

    I didn’t infer anything about God’s view of the death penalty. I said only that we are not bound by Old Testament commands. As for God’s view, I know well-intentioned people on both sides of this debate who purport to be pretty certain about God’s view on the death penalty.

    John: “I don’t know if you are ‘progressive’ or ‘liberal’ Gordon …”

    Happy to hear it! I am a bit befuddled as to why this is view as a left-right issue. I am perfectly content to be tough on crime without endorsing state-sanctioned killing.

    Jordan: “Would you say that the State STILL couldn’t do it even in that circumstance?”

    Yes.

  10. Renee on August 12, 2004 at 2:20 am

    The more cases come out with dna overturning convictions, the more I question the death penalty.

    I think I’d be just fine without it if prisons were physically demanding, tough, difficult places to live. It might be scary but I don’t know that hanging out in a cell all day with access to a library, exercise equipment and tv is “hard time”.

  11. john fowles on August 12, 2004 at 2:21 am

    Jordan, I understand your concerns about the possibility that an innocent person might die. That is a perfectly justifiable reason to oppose the death penalty.

    What I don’t understand is why liberals don’t trust “the state” on the death penalty but seem to trust it so much on their other social issues.

  12. Gordon Smith on August 12, 2004 at 2:23 am

    Ronin, You might disagree with Sister Helen’s position on the death penalty. Indeed, most people in the U.S. do disagree with her. But your ad hominem attack is disgusting and low, certainly not up to your normal standards.

    By the way, she talks extensively about victims’ families in her book, at one point making the argument that they would be better served emotionally and spiritually by abolition of the death penalty.

  13. john fowles on August 12, 2004 at 2:33 am

    Gordon: In your original post you wrote, Assuming inspired leadership, I wonder whether we can infer anything about the death penalty or SSM or their relative moral or social importance from the fact that the First Presidency is willing to expend political capital on SSM, but does not take a stand on the death penalty.

    Then in your comment/response to my questions you stated I didn’t infer anything about God’s view of the death penalty. I said only that we are not bound by Old Testament commands. As for God’s view, I know well-intentioned people on both sides of this debate who purport to be pretty certain about God’s view on the death penalty. If I understood your original post correctly, you were looking at the First Presidency’s willingness to take a stand on SSM and asking if one could infer from that something about God’s will on the death penalty through the First Presidency’s apparent ambivalence on that topic. (Since you defined “inspired leadership” as one of your starting assumptions, it seemed like asking about the First Presidency’s position on the issue implied something about the source for that inspiration.) I shared my personal view about God’s willingness to let us order certain aspects of our own society where no direct revelation lies, but then posed a question that stands even fully independent of any LDS ramifications/speculations about the will of God. So ignore that if you will (even though that inference seems to have been the point of your original post) and humor me with your thoughts on my question: why distrust “the state” on the death penalty but then trust the state on the rest of the social agenda?

  14. Derek on August 12, 2004 at 2:55 am

    If the guarantee can’t be made that a person will never be punished for a crime he or she didn’t commit, does it make a difference whether the punishment is or isn’t death?

  15. Gordon Smith on August 12, 2004 at 3:06 am

    John, “If I understood your original post correctly, you were looking at the First Presidency’s willingness to take a stand on SSM and asking if one could infer from that something about God’s will on the death penalty through the First Presidency’s apparent ambivalence on that topic.”

    That is correct, and I am interested to hear ideas on that. You suggested some ideas (to which I will respond below), but you also wrote, “To take your inference about the absence of a statement on the death penalty by the First Presidency to its logical extreme, God is neither for nor against the American death penalty.” You seemed to be suggesting that my original post was making an inference about God’s will from the statement of the First Presidency, and I was simply trying to clarify that I didn’t intend to infer anything about God’s view of the death penalty in my original post because that is the very issue I wanted to raise.

    For the record, I think you are right that God often allows us to work things out on our own, though I am not sure why He would allow us to work out the death penalty and not SSM. That was the thrust of my post. Do you have a theory about that?

    John: “why distrust ‘the state’ on the death penalty but then trust the state on the rest of the social agenda?”

    I have no idea. I distrust the state always: “We have learned by sad experience that it is the nature and disposition of almost all men, as soon as they get a little authority, as they suppose, they will immediately begin to exercise unrighteous dominion.” D&C 121:39. Of course, the state performs some useful functions, and we authorize such performance, but that does not mean that we should assume that their performance is honest and faithful to our interests.

  16. ronin on August 12, 2004 at 3:07 am

    Gordon, Sorry for my post. I was quite angry when I posted it. mainly, because having heard her speak, I am not at all convinced that she has the slightest amount of sympathy for the victims or their families, except that she pays lipservice. Her sympathies lie very much with the condemned, and she is even unwilling to admit that the condemned are where they are due to the choices they made. She tends to brush those kinds of questions off by making specious allegations of racism, oppression etc. For her, all people on death row are the “victims”, not murderers.
    Again, I apologise for the tone and choice of words in my previous post.

  17. Derek on August 12, 2004 at 3:13 am

    In other words, should the degree of certainty that the person committed the crime dictate how that person may be punished? “We’re only 99% certain the defendent committed the murder, so we can only lock him away for 5 years.”

  18. Gordon Smith on August 12, 2004 at 3:17 am

    Derek: “does it make a difference whether the punishment is or isn’t death?”

    Certainly many injustices occur outside of death penalty cases. Even if the death penalty were abolished, people could be wrongly convicted of murders and sentenced to life in prison. Of course, the problem with death is that any attempts to right the injustice, at least in this world, will inevitably be too late.

    Ronin: Thanks. That was a nice reply. By the way, I noticed this on her web site after my last comment: “As the founder of “Survive,” a victim’s advocacy group in New Orleans, she continues to counsel not only inmates on death row, but the families of murder victims, as well.”

  19. Josiah on August 12, 2004 at 4:04 am

    The current Catholic teaching on the death penalty is laid out in section 2267, which reads as follows:

    “Assuming that the guilty party’s identity and responsibility have been fully determined, the traditional teaching of the Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust agressor.

    “If, however, non-lethal means are sufficient to defend and protect people’s safety from the aggresor, authority will limit itself to such means, as these are more in keeping with the dignity of the human person.

    “Today, in fact, as a consequence of the possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm – without definitively taking away from him the possibility of redeeming himself – the cases in which the execution of the offender is an absolute necessity are very rare, if not practically non-existent.”

  20. Josiah on August 12, 2004 at 4:12 am

    I should also say that I saw Sister Prejan speak once, and in her talk she focused a great deal both on the victims of crime and on the need for justice. So my experience was I little different than some others.

  21. Kaimi on August 12, 2004 at 7:37 am

    John,

    Again, you’re painting with a broad brush, and your theme is the same as it often is when you paint with that brush:

    “Liberals say X! But they also say Y! Inconsistent!!”

    As is often the case when such assertions (about any political group) are made, the inconsistency is entirely in the manner of framing the question.

    A liberal or progressive viewpoint may include:

    -Lack of trust about state decisions to apply the death penalty, particularly when such decisions disparately affect a particular class

    -Lack of trust about state decisions to exclude groups of people from the legal benefits of marriage, particularly when such decisions disparately affect a particular class

    -Lack of trust about state decisions to restrict access to abortion, particularly when such decisions disparately affect a particular class

    Inconsistent? Sure, if you want to frame it that way.

    On a broader level, what exactly is the purpose of those kinds of arguments, which you so appear to enjoy making? They don’t accurately represent the views of your targets. (And yes, I’m aware that some liberal critics make similar arguments about conservative positions — which doesn’t make it any more right.)

    I’m by nature very suspicious of any argument that “the X position is internally inconsistent” when X is a position held by 100 million Americans. In particular, the ultra-simplified soundbite-level arguments like those you’ve employed here (and which are often employed in low-level political discourse). Do you really think that 100 million people are that dumb or misguided? (And the corrollary that you’re not so dumb/misguided– and that you can point out the obvous problem of 100 million others with a simple soundbite). That’s some hubris.

    There are not major internal inconsistencies in either of the major political positions. (Any of the three, if you want to include libertarianism). They rely on different initial assumptions, yes. There are some parts of each each political group that are in tension, yes. (That’s the nature of political alliance).

    There may be moments when a particular politician adopts inconsistent positions, and that’s of course fair game. But statements of “the liberal position is inconsistent” or “the conservative position is inconsistent” are almost certain to be relying on oversimplified, possibly misrepresented portrayals of that position, and / or on question-framing to create an apparent inconsistency. Why engage in dialogue at that kind of level?

  22. Matt Evans on August 12, 2004 at 8:08 am

    I’m on my way to catch a plane, but wanted to highlight the flip side to our deferential due process system: more murders. Ted Bundy escaped from jail TWICE after being arrested as a serial killer. He killed two more young women and maimed another two before he was finally captured for good. No doubt hundreds of other murders are committed by people who have been released by the the criminal justice system.

    Story about Bundy here

  23. Ethesis (Stephen M) on August 12, 2004 at 9:29 am

    [quote]I think I’d be just fine without it if prisons were physically demanding, tough, difficult places to live. It might be scary but I don’t know that hanging out in a cell all day with access to a library, exercise equipment and tv is “hard time”.[end quote]

    You need to tour a prison. You really, really need to tour a prison. Get a guide to prison life (they have a number published for people going in), consider life as a catcher in prison and then tour one.

    There are three major categories of people on death row, and then a fourth group that isn’t as large.

    Two of them feel justified in what they did, and feel if you only listened to them, you would too. The third group doesn’t talk (though people talk for them). The fourth collection doesn’t really belong.

    I’m talking about serial killers, crimes of passion killers, professional criminals, and the odd men out (who are the most often likely to be truly innocent).

    Professional criminals, by the numbers, are the most likely to (a) have committed other death penalty offenses and (b) to be executed for a particular offense they were not responsible for. Odell Barnes comes to mind (drat, did I spell his first name right). While everything that the French advocacy group claimed to have uncovered came up in his first trial (I consulted on that), Barnes raped and murdered women all over North Texas.

    I’m convinced he did not commit the murder he was executed for — that the primary witness caught with the murder weapon did — but I knew the two trial attorneys and while usually “true believers” neither of them had much righteous indignation about it all. I’d say Barnes crossed categories, being a professional criminal who also was starting to become a serial killer.

    However, just looking at the cost of the death penalty, a “life without parole” with the death penalty as an option chosen by the criminal, not the state, seems like a compromise that would save a very significant amount of money.

    Gee, I should only log on when I have enough time to post a real comment.

  24. danithew on August 12, 2004 at 10:13 am

    To arrive at a correct approach to the death penalty, one would have to consider many factors — the rights of the victims, the rights of the perpetrators, the actual weight of the crimes being punished, the flaws of the government and legal processes in determining who is innocent or guilty, etc. and etc.

    Though in an ideal or fantasy world, I sometimes ponder the possibility that justice and violence might be separable partners, I cannot entirely see that happening in the here and now (or the forseeable future). When the Messiah comes (and I’m being serious when i say this), who knows?

    In the meantime, I am as stubborn and unwilling to oppose the death penalty as I am unwilling to embrace pacifism — because neither of these approaches is crafted to deal with the more ugly realities of this world.

    I’ll never be willing to look upon the death penalty purely as an economic issue — that is, I wouldn’t decide this issue on whether it is more or less expensive to execute or imprison a criminal. Both are expensive anyway.

    There are especially heinous, vicious and brutal crimes where it has been proven, without a doubt, who is the perpetrator. In such cases justice not only finds the death penalty tolerable but necessary. In cases of genocide or where murder is accompanied by acts of rape and/or cannibalism, a quick death by execution is the only sentence that appears to approach justice.

    In addition to the death penalty being used for only the most vicious and lethal crimes — the bar and requirements to execution should be very high. A criminal who might be sentenced to death should have the best representation. If a shred of doubt exists as to whether the accused is guilty, then the death penalty should be removed and another weighty alternative (such as life imprisonment) should be placed in its stead. How that standard would be ascertained, I’m not sure. But I believe in some cases (I’m thinking of the reeking barrels, fetid corpses and body parts that were pulled out of Dahmer’s apartment and refrigerator) there really isn’t any doubt as to what happened and who was guilty.

    I am not fond of the doctrine of “blood atonement.” It doesn’t actually matter to me if a vicious criminal has his blood spilt or not — just that his/her life is taken. I do care about how the execution takes place — it should not be public and it should be as quick and as painless as medical doctor or scientist can devise. The purpose of the punishment is justice, not vengeance. It’s enough in such cases to say a permanent goodbye.

  25. Gordon Smith on August 12, 2004 at 11:46 am

    Josiah, Thanks for quoting that. It sounds like the Catholic Church is attempting to steer a middle course here, though the last paragraph comes pretty close to my position: “… the cases in which the execution of the offender is an absolute necessity are very rare, if not practically non-existent.”

    Matt, I know that you are getting on a plane, but I don’t care much for the argument based on specific deterrence. Among other problems, it could easily justify a much escalated use of the death penalty. Killing people is a pretty rough form of crime control.

    Danithew, it sounds to me like you are saying, “if we could administer the death penalty perfectly, it would be a good thing.” I am not unsympathetic to that argument, but it seems to be beside the point given our present system.

  26. Bryce I on August 12, 2004 at 12:02 pm

    Most of the argument here seems to be centered around the possibility that an innocent person might be executed. A thought on this: the possibility of the death penalty, in the current POLITICAL climate, may in fact make it more likely that an innocent person might be punished for a crime that he or she did not commit. I say this because for some reason, a pro-death penalty stance has become essential (in some parts of the country) to a “tough on crime” political platform. Consequently, there are political benefits for attorneys general and governors to pursue death penalty cases, and disincentives for governors to consider clemency or commutation as an option. The politicization of the issue, while completely understandable, is one of the most dangerous aspects of the current implementation of the death penalty in the US. Decisions may not be made entirely on the merits of the case, but may instead be influenced by pressures external to the case. The influence may not be great, but it is there.

    Derek is correct to ask “should the degree of certainty that the person committed the crime dictate how that person may be punished?” If there is doubt about a person’s guilt, the person should not be convicted. There are no degrees of certainty in the justice system as it is set up. Either you’re guilty or you’re not. I’m no legal scholar, but it seems to me that one reason that the penalty phase of a trial is separate from the trial itself is to prevent the jurors from letting their considerations of the possible punishment influence their deliberations over guilt or innocence. The appeals process is set up to address the possibility of mistakes.

    The real question to ask is “what is the State’s interest in having a death penalty option?” Again, I’m no expert, but I come up with deterrence, retribution, and public safety. Of these three, the only deterrence passes the sniff test as a reasonable justification for a society such as ours (public safety can be reasonably assured through incarceration). The deterrence argument is questionable, as there is no strong evidence supporting the efficacy of the death penalty as a deterrent to crime. I’m not saying that there is no deterrent effect, only that its existence can still be debated by reasonable people.

    Furthermore, there’s no question that the death penalty as it exists today in the United States is an arbitrarily applied penalty, or if it is not arbitary, is disproportionately applied to males, minorities, and the poor. There’s a reason that the calls for moratoria on the death penalty have been growing over the past few years — the system doesn’t work.

    I’m especially interested to hear what other people think about the State’s interest in having the death penalty. I’m sure I’ve missed something.

  27. Adam Greenwood on August 12, 2004 at 12:27 pm

    The alleged failure in due process in the death penalty are wildly overstated, as best as I can see; most of the cases of reversal aren’t exoneration, just the raising of a few cognizable doubts. As for the outsized application to males, minorities, and the poor, the simple fact is that one applies the death penalty where the murderers are.

    I don’t buy the argument that we can trust our courts to send people to jail but not to send them to the chair. Jail time too is also irreversible–no one gives you the years back–, and normal criminal trials are much more subject to error.

    So I’m left to ask: if a murderer is guilty, by is own admission, by forensic evidence, by DNA evidence, by circumstantial evidence, by his knowledge of where the body is buried, etc., (as a great, great many people who are put to death are) why should he not recieve the just penalty of his crimes?

  28. Nate Oman on August 12, 2004 at 12:31 pm

    Kaimi: I am not sure how much weight to put by your “100 million people believe this” argument. Surely, a widely accepted belief system ought to be treated carefully, and one can probably safely assume that it is not something that can only be believed by imbiciles. On the other hand, once you have made this caveat, I don’t see that there is anything illegitimate or hubiristic about criticizing some set of beliefs or looking for internal contradictions. If brilliance or perfection were a precondition of criticism, no set of beliefs would every be challenged.

    BTW, contradictions are not simply a way of showing that the other guy is dumb — although that is how they generally get used in debates. They also show that whatever conclusions the belief system purports to generate are not valid. For example, the belief “The state must be trusted and the state must not be trusted” logically implies that the world is flat (or anything else for that matter). Here is the argument.

    1. The state must be trusted and the state must not be trusted.
    2. The state must be trusted. (implication of 1)
    3. The state must be trusted, or the world is flat (implication of 2; note the or in this statement should not read a negative conditional. We are simply saying that the firt part of the statement is true or the second part of the statement is true.)
    4. The state must not be trusted. (implication of 1)
    5. ERGO, the world is flat. (implication of 4 and 3)

    Hence, internal contradition is a real problem because it calls into question the truth of the statements that the contradiction is used to demonstrate.

  29. Jeremy on August 12, 2004 at 1:13 pm

    As for the outsized application to males, minorities, and the poor, the simple fact is that one applies the death penalty where the murderers are.

    This perfunctory analysis is simply not true. The death penalty is given to minority males disproportionately within the context of criminal population, not just general population. In other words, a black man convicted of the same crime as a white man is more likely to get the death penalty.

    Racial issues figure into the equation in another way as well: when the victim is white, the perpetrator is much more likely to receive the death penalty than when the victim is a minority. (See here and here.)

  30. john fowles on August 12, 2004 at 1:18 pm

    Kaimi, I am harping on this ad nauseum because of my interest in the countermajoritarian difficulty and judicial activism. It fascinates me–and, quite frankly, your assertion on another thread that you don’t believe there is a such thing as judicial activism really surprised me. So when I resorted to pointing out that liberals almost uniformly oppose the death penalty because the state cannot be trusted with such a weighty matter, I genuinely do not feel that this is a broad overgeneralization or a misconstrual of the liberal position. With “the state” in this instance, the courts are meant. Thus, I was truly interested in why liberals who are putting full trust in the courts to achieve other aspects of their social agenda such as SSM, and who have already trusted in the courts to achieve the creation of a “right” to abortion, then so easily villify the courts when it comes to the death penalty. The added irony is that juries are the ones who play the crucial role in capital cases whereas the other aspects of the social agenda are being achieved by activist judges.

    The death penalty is an issue where the moral considerations that we have been discussing on this thread (not trusting the state do administer the death penalty justly, not empowering the state over life and death, disproportionate impact of the death penalty, etc.) overlap with the concepts of judicial activism/judicial restraint. I am a fan of judicial restraint (a concept which in no way implies that the Toncray case that you cited elsewhere was wrong) because anything seem to me to be overreaching by the courts.

    Justice Scalia also prefers judicial restraint. Thus, with regards to judges who entertain a personal belief that the death penalty is immoral, he writes:

    I pause here to emphasize the point that in my view the choice for the judge who believes the death penalty to be immoral is resignation, rather than simply ignoring duly enacted, constitutional laws and sabotaging death penalty cases. He has, after all, taken an oath to apply the laws and has been given no power to supplant them with rules of his own. Of course if he feels strongly enough he can go beyond mere resignation and lead a political campaign to abolish the death penalty–and if that fails, lead a revolution. But rewrite the laws he cannot do. This dilemma, of course, need not be confronted by a proponent of the “living Constitution,” who believes that it means what it ought to mean. If the death penalty is (in his view) immoral, then it is (hey, presto!) automatically unconstitutional, and he can continue to sit while nullifying a sanction that has been imposed, with no suggestion of its unconstitutionality, since the beginning of the Republic. (You can see why the “living Constitution” has such attraction for us judges.)

    So I hope that clarifies for you that I have some legitimate questions about the use and support of judicial activism by the Left. I am not trying to annoy you or degrade the level of discourse on this forum by coming back to it repeatedly. I just thought we could discuss it; I didn’t anticipate getting accused of hubris.

  31. Jordan Fowles on August 12, 2004 at 1:23 pm

    John, the State in death penalty disputes cannot refer to the court, but to the legislature, since that is the source of any statutes allowing the death penalty.

    Thus, it is entirely consistent to be against both “activist judges” and a state-imposed death penalty because in each case the source of the law is different.

  32. Kaimi on August 12, 2004 at 1:29 pm

    Nate,

    Yes, widely-held belief systems are capable of containing inconsistencies. However, it is incredibly easy to create apparent inconsistencies through the use of framing. A common trope used by the left goes along these lines:

    Conservatives say that they are opposed to abortion, because they are pro-life. But they’re also in favor of the death penalty, despite the fact that it kills people. So, are they in favor of preserving life, or not? Inconsistency!!

    It’s easy to frame an opponents views at some level of generality that create an apparent inconsistency. And of course, an opponent’s views are probably more nuanced, and relying on more factors — “what kind of person is being killed?” — than are used in the oversimplified, apparent-inconsistency equation.

    Thus, my approach tends to be extreme skepticism when someone says that a widely held belief system is inconsistent. Especially when it’s done at a broadly general level, and involving a dichotomy — “Do you believe in the courts, or not?” “Do you believe in preserving life, or not?” “Do you believe in freedom, or not?”

  33. Charles on August 12, 2004 at 1:35 pm

    Several things concern me in the debates on the death penalty.

    1) People are being exhonorated by DNA evidence. This clearly demonstrates a need to review all current death penalty cases. Once completed the death penalty should be reserved for the most heinous crimes that have exausted the best evidence available. Much like “conviction beyond a reasonable doubt” there must be no reasonable hesitation that any evidence can be found to clear the person. This is, after all, a sentence that cannot be reversed.

    2) Punishment should accomplish three things. It should deter future acts, rehabilitate the offender, and repay the debt to the victim and society. When the offendor is not able to be rehabilitated and the debt cannot be repayed and it is a heinous crime then I see no reason the death penalty cannot be enforced.

    3) I don’t know the exact statistics and polls, but it is often demonstrated in the media that the groups that oppose the death penalty are also those who support abortion. I find it disgusting that they oppose death when a trial has taken place someone found guilty and endorse it when 100% of the victims are innocent without a trial.

    Those are just a few of my thoughts.

  34. john fowles on August 12, 2004 at 1:40 pm

    Jordan, death penalty opponents can have their campaign against the legislatures then. But I have often gotten the feeling that what death penalty opponents are arguing is that we can’t allow the death penalty because the courts can’t administer it justly (pointing to alleged disparate impact etc.). So it gets back to the legislature, you are right, but the reasoning seems to go over the courts (i.e. the courts are named as the reason the legislature shouldn’t allow the death penalty).

  35. Kaimi on August 12, 2004 at 1:42 pm

    Charles,

    Re (3), abortion isn’t about guilt or innocence, and I’m not aware of any pro-choice groups that frame it that way. It’s about the fetus living in someone else’s abdomen and about that person’s right to control her body. As such, the two groups aren’t similarly situated.

    Perhaps we should only kill the absolutely uncontroversial cases: Convicted murderers who live in someone else’s abdomen.

  36. Aaron Brown on August 12, 2004 at 1:49 pm

    Gordon said:
    “ … but the death penalty is applied unevenly to the most disadvantaged criminal defendants.”

    Putting aside the issue of “innocence” (and yes, I realize that’s a HUGE issue to be putting aside), what is this observation supposed to accomplish exactly? If inordinate numbers of African-Americans, for example, are being sentenced to death, relative to the severity of their crimes, why is that an argument for abolishing the death penalty, anymore than racial disparities in sentencing for non-capital crimes is an argument for emptying our prisons? It seems to me that if one is morally in favor of capital punishment, the observation that “too many minorities are being sentenced to death” can be easily reformulated as “too few non-minorities are being put to death.” This would then indeed become a motivator for reforming the system, but perhaps not in a matter you’d find palatable.

    Adam said:
    “As for the outsized application to males, minorities, and the poor, the simple fact is that one applies the death penalty where the murderers are.”

    Scandalous as this sounds, Adam may have a point. But I think the crucial question is this: What kind of “racial disparities” really characterize our system? Can it be empirically demonstrated that inordinate numbers of minorities (for example) are being sentenced to death or executed, relative to non-minorities, when the “heinouness” of their crimes are compared across the two groups? Or can it only be shown that inordinate numbers of minorities are being sentenced to death or executed relative to their numbers in the general population? The answer would seem to matter enormously. If the former, than I agree we have a problem that needs addressing. If the latter, than Adam’s point seems to hold. (I honestly don’t know the answer to the question, and would appreciate hearing from someone who does).

    Adam said:
    “The alleged failure in due process in the death penalty are wildly overstated, as best as I can see; most of the cases of reversal aren’t exoneration, just the raising of a few cognizable doubts.”

    This has also been my understanding. The distinction between full exoneration and reasonable doubt matters in any death penalty debate where claims of “innocence” are bandied about. I also would like someone more knowledgeable than myself to point me to something definitive on this question.

    Adam said:
    “Jail time too is also irreversible–no one gives you the years back—“

    This seems to highlight a crucial dividing line between proponents and opponents of capital punishment. Is death a qualitiatively distinct form of punishment from life imprisonment, or merely a quantitative one? On the one hand, it seems like a stupid question (in one sense it is obviously the former), but I think many believe that life imprisonment based on a wrongful conviction would only be moderately less horrific than being sentenced to death. I confess I often feel this way myself.

    Aaron B

  37. Aaron Brown on August 12, 2004 at 2:02 pm

    Oops. I just saw that Jeremy had already addressed my second question above. My oversight.

    Aaron B

  38. danithew on August 12, 2004 at 2:14 pm

    Bryce brought up an interesting thought … what is the interest to the State of the death penalty?

    I was mulling this over a little and it occurred to me that the death penalty is useful in getting complete confessions and admissions to a crime, in exchange for a deal to take the death penalty off of the table. I’ve seen my share of these Cold Case Mystery stories or whatever they’re called (those late-night real-life crime stories on t.v.) and they’ve shown serial killers who led police and state officials to the scenes where victims were buried, in exchange for enough leniency to spare them from execution.

    This is of interest to citizens and the state because murderers often refuse to divulge what they’ve done and simultaneously, the families of the victims have a desperate need to know for sure whether their relative has died, how that relative died, where the body has been deposited, etc.

    Taking the death penalty completely off the table removes a major lever that the State can use to negotiate with murderers for more information.

    I’ll be someone said this and I missed it. If so, my apologies. I was kind of in a rush.

  39. Adam Greenwood on August 12, 2004 at 2:16 pm

    I’m not sure that he did. When I looked into this awhile back, I thought I remember finding that the only studies that held up were those that found a discrepancy in the race of the victim, not in the race of the killer.
    Jeremy talks about the ‘criminal population’ but the relevant population is really the ‘murderer population.’ Perhaps that is what he meant (I don’t want to make him an ‘offender for a word’) but some clarification would be in order.

    In any case, as you say, proof of discrimination is merely proof that more white killers need to die.

  40. Josiah on August 12, 2004 at 2:21 pm

    The racial disparities argument cuts both ways. If, as is the case, a person is far more likely to receive the death penalty if he kills a white person than if he kills a black person, this could be for one of two reasons. Either juries are valuing the life of the white victim too highly, or they are not valuing the life of the black victim highly enough. If the latter, then the answer would seem to be more executions, not less.

  41. danithew on August 12, 2004 at 2:34 pm

    Gordon Smith wrote:

    Danithew, it sounds to me like you are saying, “if we could administer the death penalty perfectly, it would be a good thing.” I am not unsympathetic to that argument, but it seems to be beside the point given our present system.

    I doubt we could achieve perfection, but we can err on the side of caution when it comes to utilizing the death penalty. That’s really what I’m trying to say. I believe there are cases where the authorities have an incredible mound of negative evidence against a particular individual — to such a degree that there is no question about what has happened and who did what. With DNA evidence and other scientific techniques, it is becoming more and more possible to tie a criminal to the scene of the crime. So there are in fact cases where the death penalty is deserved and should be exercised. Like I said before, in cases where there is less evidence, or the evidence is circumstantial (yet still very convincing) then the death penalty shouldn’t be an option.

    Another issue has also come up … racial inequity with the death penalty. I’m not quite sure what to make of racial statistics regarding the death penalty. One part of me wonders — how important is it that we execute equal percentages of whites, blacks, hispanics, asians, etc? Of course it would be observe to set up a quota percentage of some sort, as that won’t match up with reality.

    The ideal would be to treat heinous crimes and criminals equally, regardless of race.

    At the same time I really am convinced that black people in general (criminal or not) particularly suffer from discrimination and stereotypes, and I believe this discrimination does show up in the courtroom just like everywhere else. So perhaps some kind of safeguards or studies need to be performed with the object of figuring out how to change this.

  42. ronin on August 12, 2004 at 2:40 pm

    Most studies showing results one way or the other need to be taken with agrain of salt – reason beingthat given that a lotof academic research is undertaken by people with a certain ideological bent, especially when concerning an issue as heavily disputed as the death penalty. For example, is it even possible that a study, sponsored by, say, ACLU , will ever come up with a finding that does go counter to the ACLU’s very strong anti-deathpenalty stance? I wonder what the results will be, if the same study questions are an impartial group? Just wondering…….

  43. danithew on August 12, 2004 at 2:43 pm

    Of course it would be observe to set up a quota percentage of some sort, as that won’t match up with reality.

    Observe? I meant “absurd.”

  44. john fowles on August 12, 2004 at 2:52 pm

    Josiah: if the disparity is that there are more executions for the murderers of white victims than black victims, does that really lead to a conclusion at all about discimination?

    I think that race is a red herring in this discussion. If a white person kills, he or she gets the death penalty just the same as a black or hispanic killer. In fact, death row is populated by far more whites than minorities, if I remember correctly.

  45. Jeremy on August 12, 2004 at 3:03 pm

    Ronin,

    The type of caveat you offer must also be taken with a grain of salt, though, as it runs the risk of being negligently dismissive of evidence offered by those with whom one might disagree. For example, I posted a link to an ACLU report in my previous comment, which might lead some to roll their eyes reflexively and discount the information therein; but that report cites statistics from a wide variety of sources, including articles published in peer-reviewed criminology journals, reports issued the United States Department of Justice, and information provided by the U.S. General Accounting Office.

  46. J. Max Wilson on August 12, 2004 at 3:12 pm

    Here are three interesting articles related to this topic. The author, Ian Murry, is personally against the Death Penalty.

    Numbers Unreliable on Death Penalty
    September 01 2000

    The International Politics of Death
    January 14 2002

    More Executions, Fewer Deaths?
    September 01 2002

  47. Gordon Smith on August 12, 2004 at 3:12 pm

    Aaron, “Putting aside the issue of ‘innocence’ (and yes, I realize that’s a HUGE issue to be putting aside) …”

    I hereby nominate Aaron for understatement of the thread. If you set aside innocence, you miss the whole point of my argument. The innocence problem coupled with a disproportionate use of death penalty against the disadvantaged — not just minorities, but also poor whites — means that the disadvantaged are more likely to be sentenced to death unjustly. Without the innocence problem, you are just arguing about how often we should kill people for their crimes.

  48. Josiah on August 12, 2004 at 3:20 pm

    John,

    You are absolutely right that the disparity needn’t be the result of discrimination in sentencing. It could be the result of some other factor, or it could just be a coincidence. But even if we suppose there was discrimination, this doesn’t settle the question of whether there should be more execution or less.

    I would note, though, that the fact there are more whites on death row than minorities doesn’t mean there is no disparity. Non-whites make up, I believe, about 26% of the population, so they could be over represented in the death row population without being a majority.

  49. J. Max Wilson on August 12, 2004 at 3:24 pm

    Here is the original study cited in Murry’s third article (.pdf):

    Does Capital Punishment Have a Deterrent Effect?

  50. john fowles on August 12, 2004 at 3:28 pm

    In the thread “are we less righteous,” many people argued against my bleak views of the moral state of society by pointing out that murders are down. Is there a causal connection between the reinvigoration of the death penalty and the lower murder rate?

    Thanks to J. Max for the linked articles. From one of them (“More executions, fewer deaths”) I find an answer to my question:

    But there now come impressive new findings from a trio of economists at Emory University in Georgia. Hashem Dezhbakhsh, Paul Rubin, and Joanna Mehlhop Shepherd released their paper “Does Capital Punishment Have a Deterrent Effect? New Evidence from Post-Moratorium Panel Data” in January 2001 (a working paper online at the National Bureau of Economic Research). Its findings are striking. The authors conclude that each execution deters other murders to the extent of saving between eight and twenty-eight innocent lives, with a best-estimate average of eighteen lives saved per execution.

  51. Josiah on August 12, 2004 at 3:35 pm

    I’ve always thought that issues of deterrence were beside the point, with the death penalty as with any other punishment. If a person is punished because he deserves it, that’s one thing, but punishing Peter to make Paul behaive, that strikes me as downright immoral.

  52. Jeremy on August 12, 2004 at 3:35 pm

    if the disparity is that there are more executions for the murderers of white victims than black victims, does that really lead to a conclusion at all about discimination?

    Indeed it does. Can we expect a system that considers race in its valuation of the life of the victim to remain unsullied by racism in its valuation of the life of the perpetrator?

    I think that race is a red herring in this discussion.

    Actually, I agree to a certain extent: while institutional racism can be difficult to quantify, the systemic disadvantages faced by poor defendents are easier to pin down. Even if one rejects the notion of specifically racial bias, race as it relates to socioeconomic position still figures in.

    But you’re right, in that this issue isn’t about racial inequity specifically so much as inequity in general. Consider the following:

    In most death penalty states, indigent defendants are represented by court-appointed lawyers, and most states pay their court-appointed lawyers only $20 to $40 per hour. Some states limit the amount of compensation a court-appointed attorney can receive in a death penalty case to as little as $2,000. (Compare this to the $14 million price tag on the first trial of Erik and Lyle Menendez which ended in a hung jury). These amounts are absurdly low in view of the amount of time it takes to properly prepare for any criminal case, much less one than can result in a sentence of death. One study has concluded that in order to prepare a legally adequate defense in a capital case, a lawyer would need to spend over 600 hours in pre-trial preparation, 600 hours in court time, and 700 hours during direct appeal.

    There are, of course, many more horror stories floating around out there (defense attornies showing up to court drunk or falling asleep during cross, appeals not filed that should have been, etc.), and while these are “only anecdotal,” even the mere statistical weight of this or that particular anecdote — i.e., one person getting the chair when he shouldn’t have — disturbs me.

    Such statistics and anecdotes compel me to infer certain caveats into the 6th commandment: Thou shalt not kill. When it doubt, thou shalt err on the side of not killing.

  53. ronin on August 12, 2004 at 3:36 pm

    In all the talk about the fact that folks from poorer backgrounds being overrepresented, could that be because, most middle and upperclass people chose not to take to crime as a career or way of life? And if a disproportunate of the poor are commiting the most henious crimes, doesnt itstand to reason thatthere will be more of them on death row, or in jail in general? E.G – the killing of 6 people thattook place in Florida lastweek – a recidivist and his 2 teenage sidekicks, went into a house and killed 6 people with baseball bats in a most brutal manne. Why? because seems there was a dispute over the ownership of a X-Box!!! Now, will society be betteroff, if said killer is put to death, or let out to prey upon people in our communities after he is paroled in, say, 20 years?
    The absolute fact about the death penalty is that it removes dangerous people with no conscience from our communities, without any possibility that he or she might ever prey up innocents among us any more.

  54. Gordon Smith on August 12, 2004 at 3:42 pm

    Adam: “most of the cases of reversal aren’t exoneration, just the raising of a few cognizable doubts.”

    You act as if these cases are just a bunch of “technicalities,” a load of legal, mumbo-jumbo. They aren’t. Proving someone innocent is pretty hard to do, but these are cases in which subsequent evidence has shown that the bases for conviction were flawed. Read about Steven Avery, the most recent beneficiary of the Wisconsin Innocence Project. (This is not actually a death penalty case, but it is a murder case that illustrates some of the shortcomings of the criminal justice system.)

    Adam: “Jail time too is also irreversible–no one gives you the years back …”

    You seriously suggest that being incarcerated is equivalent to being killed? The implicit assumption of this argument is that years spent in prison are wholly without meaning. Perhaps the best response I can offer is to suggest that you posit a different indifference curve than most people seem to have. The use of the death penalty as a bargaining chip in generating pleas (see dinithew above) supports the notion that defendants differentiate between death and incarceration.

    Adam: “proof of discrimination is merely proof that more white killers need to die.”

    They need to die for what purpose? Maybe I missed it, but I haven’t seen the positive case for the death penalty.

  55. john fowles on August 12, 2004 at 3:44 pm

    Jeremy wrote Can we expect a system that considers race in its valuation of the life of the victim to remain unsullied by racism in its valuation of the life of the perpetrator?

    I meant my question to which you were responding with this question to point out that the conclusion that the system is discriminatory because more murderers of white victims are executed than murderers of black victims is a non sequitur. I wasn’t endorsing discrimination; rather, I was merely saying that you can’t come to this conclusion on the basis of that statement alone–there are numerable other factors that might be playing a role.

  56. john fowles on August 12, 2004 at 3:51 pm

    Gordon queried in response to Adam’s statement that proof of discrimination is merely proof that more white killers need to die: They need to die for what purpose? Maybe I missed it, but I haven’t seen the positive case for the death penalty.

    The purpose for which they need to die is the just deserts for their actions. Anything less falls short of the demands of justice. They have robbed the victim of that which is most permanent, their life. Why should society see any particular interest in protecting the perpetrator’s life? That question is still hanging in the air, because it merits separate consideration from whether the state can be trusted to get it right when it comes to sentencing murderers to death. Is there an objective justice that demands the life of one who has deprived another of life?

  57. Jeremy on August 12, 2004 at 3:57 pm

    Ronin,

    I find that comment somewhat callous. “Most” poor people also “choose not to take crime as a career.” And when an upper class person commits a heinous crime, he is in a much better position to manipulate the system to his advantage.

    The “absolute fact” is that, while some folks on death row might deserve to die, in a few cases — few, but, because this is death we’re talking about here, hardly a dismissable number — persons are condemned to death simply because they didn’t have the financial resources to hire a lawyer competent enough to demonstrate their innocence.

    I’m unclear whether you’re insisting that all people that get the death penalty deserve to die, or whether you’re saying that it’s worth it to sacrifice a few unfortunate, poor, and erroneously implicated people in the interest of public safety (in other words, the “let God sort them out” doctrine).

  58. danithew on August 12, 2004 at 4:01 pm

    Josiah wrote: If a person is punished because he deserves it, that’s one thing, but punishing Peter to make Paul behaive, that strikes me as downright immoral.

    True. But if Paul observes that Peter was punished, and as a result Paul is deterred from murdering his wife (or someone else) then I’m not going to say no. Please pass the gravy.

  59. J. Max Wilson on August 12, 2004 at 4:02 pm

    Jeremey

    Concerning the 6th commandment:

    The word “kill” in the Old Testament Hebrew (transliterated) is “Ratsach” which most Hebrew Lexicons that I am familiar with define as “To murder” or “To assassinate.”

    The word occurs 47 times in the KJV and here is the breakdown of usage in translation:

    slayer 16
    murderer 14
    kill 5
    murder 3
    slain 3
    manslayer 2
    killing 1
    slayer + “‘achar” 1
    slayeth 1
    death 1

    I think that this commandment proscibes murder, and actions that bear a similarity to murder in their motive. Is Capital Punishment similar enough in its intent and justification to qualify as murder?

  60. Jeremy on August 12, 2004 at 4:07 pm

    John’s comments, and my exchange with Ronin, point up the fact that this thread is really about two separate issues that should be extricated:

    1) Whether or not there are circumstances in which the death penalty should be used.

    2) Whether or not the system for applying the death penalty is reliable enough that only guilty parties are condemned to death, and consistent enough that the criteria for determining guilt are applied without regard to race, socioeconomic status, etc.

    All of my comments are geared toward 2).

  61. Kaimi on August 12, 2004 at 4:08 pm

    I think we’re learning who the utilitarians and who the Kantians here are.

    As for me, I would like to be a utilitarian, but I just Kan’t.

    :)

  62. Gordon Smith on August 12, 2004 at 4:18 pm

    Max, Thanks for that contribution. Excellent question.

    The obvious distinctions between murder and capital punishment revolve around institutionalization and due process. Of course, those features alone do not justify killing by the state. The world has witnessed plenty of objectionable killings that follow an institutionalized process. What we find objectionable in these circumstances are the illegitimate grounds for execution (e.g., ethnic heritage, political opposition, etc.). As John observes above, some notion of justice must animate the process before we can embrace it. To date, I have not felt comfortable with any notion of justice — short of God’s direct intervention — holding that a person deserves to be killed.

  63. Bryce I on August 12, 2004 at 4:19 pm

    Some more numbers:

    Department of Justice Statistics 2002 This is a pretty comprehensive look at the numbers, although it doesn’t give the ones of interest to me, namely, what percent of the time was capital punishment pursued when available.

    Numbers can tell all kinds of stories, but for what it’s worth, a couple of observations:

    There are more whites (1,931) than blacks (1,552) on death row (see figure 2)

    In 2002, whites were disproportionately more likely than blacks to be removed from death row. College educated people were disproportionately more likely than people with a less than high-school education to be removed from death row (see table 5).

    For the 25-year period 1977-2002, blacks and whites were equally likely to have been removed from death row (table 10)

    Note that death by causes other than execution is one means of removal from death row.

    Draw what conclusions you will. I refuse to argue the numbers, since I could tell a story supporting either side.

  64. Jordan Fowles on August 12, 2004 at 4:45 pm

    Using Jeremy’s helpful teasing apart of the issues, I think that this debate is an easy one. I don’t think we can even talk about (1) if the system in (2) cannot justly apply it. If we can’t justly apply the death penalty, then what point is there in arguing about situations in which it could be “justly” applied?

    I really think, contrary to what Adam Greenwood says, that recent DNA exonerations for all sorts of crimes, not just capital punishment, lead to the conclusion that something is amiss in the procedure leading to convictions in this country. I am not saying that all convictions should be tossed out the window, only that since the death penalty really is the ULTIMATE punishment, being irreversible in the sense that you don’t even get another chance, period, that we should seriously think about declaring an indefinite moratorium on its use.

    One more thing that bugs me- when I have talked about this issue to some of my friends, they say something like this: “Well, the guy is obviouslty trash and he IS guilty of SOMETHING. So what if he is executed for a crime he didn’t commit since we know that he DID commit some murders for which he wasn’t convicted.” Come on, people! How is that justice?

    this thread is really about two separate issues that should be extricated:

    1) Whether or not there are circumstances in which the death penalty should be used.

    2) Whether or not the system for applying the death penalty is reliable enough that only guilty parties are condemned to death, and consistent enough that the criteria for determining guilt are applied without regard to race, socioeconomic status, etc.

  65. ronin on August 12, 2004 at 4:47 pm

    Jeremy – my post wasnt meant to be callous, by no means. my problem is this – English is not my first language, it is my 4th, and so, sometimes, I guess the nuances and the implications escape me.
    the point I was trying to make is this – it is an incontrovertible fact that people from the lower strata of society commit the majority fo violent crimes, whereas, middle income and hignh income folks commit the majority fo the no-violent, white collar type of crimes, fraud, embezzlements etc.
    And yes, people with better income levels, better educations can hire better lawyers to manipulate the system to avoid t he death penalty, or plead down etc. In that case, the solution is not to dispose of the death penalty itself, but, to ensure that even poor and indigent defendants get proper and effective
    representation. That way, deathpenalty opponents couldnt argue that richer folks can skate, while the poor fry.
    Just my 2 cents – I am not a lawyer, so, I better quit while the going is good – I am getting out fomy depth here!!!!!

  66. John Mansfield on August 13, 2004 at 10:48 am

    Below is an essay I wrote two years ago when Paris Glendening imposed a moratorium on Maryland executions. I now inflict it upon you.

    ————————————————————————–

    Within my lifetime, two friends have been murdered. They weren’t close, intimate friends, just the sort of people you cross paths with often and stop to talk with when you do. The first was a middle-aged man killed in Baltimore seven years ago. His body was found in the street with a bullet wound in the head. It was surprising and sad. I don’t think the killer was ever identified.

    The death of the second was harder to take. One night last summer, an 84-year-old great-grandmother in my hometown was raped and strangled in her home. It is possible to exaggerate the virtues of the dead in our memories, but I think I have not. One of the best people I have known suffered one of the worst atrocities thinkable. It is one of those things to leave one uneasily pondering what the nature of our society is that such things happen.

    Well, what is the nature of our society? If it is a place where crimes like this go unanswered, then one word to describe it is unjust. And if a society cannot meaningfully show that it does not accept such crimes against its members, then that society as a whole shares in the guilt of its rapists and murderers.

    My second friend’s killer was charged last week. The police had ample physical evidence to match with the murderer: fingerprints, DNA, even bite marks damn him. They also had the convenience that the accused had since been imprisoned for an unrelated probation violation. So assuming the course of due process is run and a guilty verdict is rendered, what should be done with this man (using the term loosely)?

    My feeling is that he should be executed by the state. Some object that since it is wrong for individuals to kill that it is also wrong for society to kill. There is an inconsistency in that argument, unless the person making it is libertarian. It is wrong for an individual to hold another captive or to confiscate another’s property, but the state properly has authority to do these things.

    As for Maryland Gov. Glendening’s professed concern that murderers in Baltimore County are dealt with too harshly, it may be that the opposite is the problem. Maybe Baltimore City is not properly offended at the murder of its citizens. Maybe Baltimore as a whole deserves a measure of shame for the deaths of an absurdly high number of its people, people like my first murdered friend.

    Others don’t like execution because of the possibility of injustice if the wrong man is convicted. This is a serious concern, but to focus here on the sentence seems misguided if justice is the concern. Suppose one falsely convicted of murder receives a life sentence and is then exonerated twenty years later. It feels hollow to count the years of life lost and then console the man that at least we didn’t kill him.
    And if we are going to throw out execution to avoid punishing the innocent, what do we do to deal justly with those convicted of noncapital offenses? Cut all prisoners’ sentences in half?

    We should focus instead on those matters leading up to conviction. We should ensure that due process is served. Of all the protections in our Bill of Rights, due process is the one I cherish the most and see preserving ours as a free land. If prosecutors are railroading innocent defendants, so they can make a name for themselves without bringing the true criminals to justice, then we should find a place for them in prison or on death row, or at the least out of office. Just keep in mind that for every convicted murderer there is a murder victim. We owe it to that person to find her killer and then to punish the guilty. If our society fails to uphold that responsibility, then a portion of the guilt and shame for her murder is ours.

  67. Kaimi on September 3, 2004 at 10:28 pm

    [Restored from Prior Thread]

    Thanks for sharing that, John. I am very sorry to hear about your loss. Thankfully, I have never had a friend or relative — close or otherwise — murdered. This has caused me to wonder who is in the best position to decide on policies like the death penalty. Victims’ families often seem motivated by revenge. Understandable, but not necessarily ideal from a policy standpoint. On the other hand, people like me cannot know the pain of someone in your shoes. Perhaps we are too distant from the problem.

    Comment by Gordon Smith at August 13, 2004 12:05 PM

    ***

    Gordon,
    Why does the case need to be made _for_ the death penalty? Perhaps you could start by explaining why it isn’t just that heinous murderers should die. The justice of killing the killer is attested to throughout our historical experience, across numerous cultures, by many thinkers, throughout the scripture, and in the natural feelings of mankind. Burden is on you. (I had understood you to be arguing that the error rate made the death penalty unacceptable, not that it was per se unjust, but I am not surprised to find that you are making both arguments. That group which thinks the error rate unacceptably high and that group which has its doubts about the intrinsic justice of the death penalty are not one and the same, but they do overlap. They are essentially the same loaf with different leavenings.)

    -”No one gives you the years back.”
    I wondered why, if the possibility of irreversible error makes great penalties (death) for great crimes unacceptable, the even higher possibility of error doesn’t make lesser penalties (imprisonment) for lesser crimes (say, robbery) also unacceptable? You may say that a term of imprisonment can be reversed, but the truth is that our system is much less willing to reevalute lesser offences, much fewer institutional resources are geared towards discovering new evidence for lesser offences, and by the time the thing works its way through the courts one has usually served one’s sentence or a great portion thereof anyway.

    John M.,
    Thank you for that thoughtful and eloquent piece. I hope the murderer gets his due.

    Comment by Adam Greenwood at August 13, 2004 12:45 PM

    ***

    I have , many a time wondered why the concept of seeking revenge is considered so bad, and uncivilised and so on and so forth. Isnt the very fact that we seem to think that criminals ought to be punishment for the crimes they have committed itself an act of seeking revence, in a manner of speaking. and being that the victims and their closest family and friends are the ones that are directly affected negatively by the actions of the criminal perp, I wonder what’s wrong in allowing the victims and their families have a say in how the perps future is decided. We seem to have no problem in letting t he perp present his side of the story, so, why not allowing the victim’s and their families? Too emotional? Well, too bad, I say, I guess the perp could have changed the situation by not committig the crime in the first place.

    Comment by ronin at August 13, 2004 01:25 PM

    ***

    Adam, As I have stated from the beginning of this conversation, I oppose the death penalty primarily because I think innocent people are being killed by states. As to whether the death penalty would be justified in a system of perfect administration, on that point I am ambivalent. I have some sympathy for your “just desserts” arguments, though I admit to having more sympathy for those who oppose all killing on moral grounds. I simply don’t know the right answer, though the conversation seems somewhat beside the point in the context of our current justice system.

    My challenge to you about the need to justify the death penalty was made in response to your assertion that “killers need to die.” The implication of that statement is that abolition of the death penalty would be an injustice. While I cannot say definitively that imposition of the death penalty would be morally unjust in a perfect administrative system, I also cannot see the compelling case that abolition of the death penalty in favor of life in prison would compromise justice.

    As for the difference between getting capital cases and other criminal cases wrong, my argument (made above) was that incarceration and death are qualitatively different. We take pains to get things right, but we acknowledge that some people are incarcerated wrongly. This is a cost of the system, but the benefits of having even an imperfect criminal justice system outweigh that cost. With respect to capital cases, on the other hand, the choice is not between whether to punish or not to punish, but whether the punishment should be death or life in prison. Given the unique costs associated with the death penalty, I think life in prison is the right path.

    Finally, you wrote:

    * “The justice of killing the killer is attested to throughout our historical experience, across numerous cultures, by many thinkers, …” You act as if there is a universal consensus on the merits of the death penalty, but this is very misleading. See here if you are interested in seeing the current roll call of nations.

    * “The justice of killing the killer is attested to … throughout the scripture …” If you want to invoke the scriptures in favor of the death penalty, make sure you do the job thoroughly. That means imposing the death penalty for for adultery (Leviticus 20:10); incest (Leviticus 20:11); homosexuality (Leviticus 20:13); bestiality (Leviticus 20:15); prostitution (Leviticus 21:9); sacrificing to a god other than the Hebrew god (Exodus 22:20); entering the temple without a recommend (Numbers 1:51); kidnapping (Exodus 21:16); cursing parents (Exodus 21:17); failing to take care of one’s animals (Exodus 21:29); stubbornness (Deuteronomy 21:18-21); eating leavened bread during the Feast of the Unleavened Bread (Exodus 12:15) … to name a few grounds. Oh, and don’t forget the witch trials! (Exodus 22:18)

    * “The justice of killing the killer is attested to … [by the] natural feelings of mankind.” Let’s see, how does that verse go? Oh, right, here it is: “For the natural man is an enemy to God.” Mosiah 3:19.

    Comment by Gordon Smith at August 13, 2004 03:03 PM

    ***

    Ronin wrote:

    I have , many a time wondered why the concept of seeking revenge is considered so bad, and uncivilised and so on and so forth.,/i>

    I think vengeance is too tricky a matter for human beings to handle. Human vengeance rarely approximates justice because human beings have a tendency to escalate — instead of “an eye for an eye” it becomes “a hundred eyes for an eye.”

    Recently I’ve often been pondering the quotation “Vengeance is mine, saith the Lord” and it seems to me that the Lord declares a monopoly on vengeance because only He has the perfection, the omniscience and the omnipotence that are necessary to truly hand out a vengeance that fits the crime, that amounts to an exact justice.

    Human beings simply aren’t qualified.

    The death penalty, if it is done by lethal injection, does not really meet the standards of a good vengeance or retribution for most heinous crimes anyway. How many victims get to go out of this world so quietly, painlessly and on schedule? Many victims are ambushed, are raped and tortured, are killed in horribly brutal and painful ways… no one is really trying to claim that the penalty matches the crime(s).

    Comment by danithew at August 13, 2004 03:23 PM

    ***

    Ronin said: ” and being that the victims and their closest family and friends are the ones that are directly affected negatively by the actions of the criminal perp, I wonder what’s wrong in allowing the victims and their families have a say in how the perps future is decided. ”

    There’s a reason why in criminal cases, the State is the one bringing charges, and not victims. It’s a necessary layer of indirection to ensure that our civil society is not torn apart by personal vendettas.

    The victim’s rights movement seems to be a reaction to what is perceived to be a growing disconnect between the interests of the State and the interests of victims of crime.

    Which leads me again to ask: What is the State’s interest in having a death penalty? Mere retribution seems insufficient, as it does not seem to undergird many of the other punishments in the criminal justice system. “Three strikes” laws and drug possession sentences seem to be rather arbitrary in the way they match the punishment with the crime, for example. And while I’m probably wrong about this, it seems to me that crimes involving the loss of property are rarely punished by requiring the criminal to make restitution; a separate proceeding in a civil suit must take place.

    Comment by Bryce I at August 13, 2004 03:50 PM

    ***

    Gordon,

    Thanks for the link to the list of various international positions on capital punishment you provided in your response to Adam. I think it important to point out a fact made in one of the articles I linked to yesterday.

    Most European states abolished the death penalty some years ago. In some states it has been unconstitutional since World War II. Others are more recent converts. Ireland abolished the death penalty in 1990. In Britain, although it had been outlawed for murder for many years, capital punishment remained an option for treason until it was finally abolished in all cases by the passage of its Human Rights Act in 1998.
    …But this policy is not popular. Up to 77 percent of Britons support the reintroduction of capital punishment, and close to 50 percent think the same way in France and Italy. Even in peace-loving Sweden, a 1997 poll found that 49 percent of Swedes wanted the return of capital punishment. Anthony Blinken of the Center for Strategic and International Studies wrote in the May/June issue of Foreign Affairs that “significant majorities in France, Germany and the United Kingdom say that the death penalty is an internal matter and that their governments should not exert pressure on the United States to abolish it.”
    …Much of Europe is, at heart, “technocratic,” with the forms and functions of government controlled by the educated elite in a way that is inconceivable here. When European officials talk about “European values” they often mean the values of that elite rather than the population at large. The director of the French polling firm Sofres admitted this when he told Time magazine, “The elites, as reflected in the media, make a big issue of [the death penalty], but public opinion does not feel as strongly about it.”
    Anti-death penalty law throughout the world is likely a reflection of the feelings of a powerful, intellectual elite imposing their views on the masses. If that is the case, then the number of nations in which the death penalty has been abolished does not refute Adam’s assertion that capital punishment has a great deal of precedent throughout history and culture.

    It seems funny to place so much distrust in our own state’s ability to properly carry out right and wrong while at the same time trusting that the policies of so many other, less-democratic nations represent the consensus of the peoples of the world on the merits of the death penalty.

    Comment by J. Max Wilson at August 13, 2004 05:01 PM

    ***

    Max,

    I think you’ve mischaracterized Gordon’s argument. You state that he is “trusting that the policies of so many other, less-democratic nations represent the consensus of the peoples of the world on the merits of the death penalty.”

    I don’t think he has made the assertion that there is a consensus against the death penalty — he has only presented information that casts in doubt Adam’s implied assertion (or Gordon’s reading of Adam’s argument as implying an assertion) of a consensus for the death penalty.

    Comment by Kaimi at August 13, 2004 05:11 PM

    ***

    Kaimi,

    Let me revise my statement:

    …trusting that the policies of so many other, less-democratic nations represent a lack of consensus among the peoples of the world on the merits of the death penalty.

    Gordon casts doubt on Adam’s assertion that there is at least a general majority consensus throughout history and culture about the justice of the death penalty by implying that the sum of the laws of the nations of the world signify that no such consensus exists. His argument assumes that the national laws throughout the world are representative of the views of their inhabitants. My point was to question that assumption.

    If, as I claim, anti-capital punishment laws throughout the world represent only a small, intellectual elite and not the populace, then they tell us very little about whether or not Adams assertion is true.

    Comment by J. Max Wilson at August 13, 2004 06:06 PM

    ***

    Hey Bryce,

    I’m not sure if you saw my comment earlier, but I thought one State advantage to keeping the death penalty might be as a negotiating ploy — as a lever to coerce guilty defendants into confessing in exchange for taking the death penalty of the table.

    Comment by danithew at August 13, 2004 06:20 PM

    ***

    Dan — Sorry, I did see your earlier post, and I should have acknowledged it. You make a good point — however, I don’t see it as the basis of a policy of capital punishment. One might advocate having burning at the stake as a means of capital punishment to “encourage” recalcitrant suspects who refuse to talk even under the threat of the death penalty (consistutional issues aside). The problem is that having the “next worse thing” means that you have to be willing to use it.

    So the advantage you describe is a fortuitous consequence of having the death penalty, but does not, in my view, consititute a reason for the State to have the death penalty in and of itself.

    Thanks for taking up my argument!

    Comment by Bryce I at August 13, 2004 07:15 PM

    ***

    I agree with what your saying Bryce. It occured to me that this idea was not going to appeal to either side on this issue. Those who are death-penalty advocates hate the idea of negotiating with murderers and thus allowing them to live. Those who oppose the death penalty dislike the argument because it keeps the death penalty as a possibility.

    I agree that the “death penalty lever” can’t be used as the actual basis for having the death penalty be legal. I do think though that it points out a negative aspect of making the death penalty illegal. In a sense, removing the option of the death penalty places the prosecutors at a disadvantage and gives the criminal a certain sense of security in maintaining their silence.

    Comment by danithew at August 13, 2004 07:42 PM

    ***

    I just remembered a newspaper article I read a bunch of years ago while living in Israel. I have tried to find the story somehow doing google searches, but so far no luck.

    Basically, a man in his 80s or 90s murdered his wife. When the police arrested him he mocked them by asking: “What are you going to do, put me in prison for life?” Israel has no death penalty.

    This was an odd and unusual case. But it does show that some people think about the penalty they will suffer before/during/after the commission of the crime and that it influences their thinking. I doubt there’s that many octagenerian murderers… but it’s still a kind of interesting case to think about.

    Comment by danithew at August 13, 2004 07:52 PM

    ***

    Max, It’s a fair point that a nation’s laws do not necessarily represent the consensus of the population. On the other hand, I have been around long enough not to invest too much trust in surveys of the type that you cite, especially media surveys (if that is what they were).

    Kaimi was right that my purpose was merely to cast doubt on Adam’s apparent assertion of consensus, and I think that national laws serve that purpose. Do you really claim that surveys purportedly showing that “up to 77 percent of Britons support the reintroduction of capital punishment, and close to 50 percent think the same way in France and Italy” demonstrate that “anti-capital punishment laws throughout the world represent only a small, intellectual elite and not the populace”? That’s quite a leap.

    One more point about the “intellectual elite”:
    many have argued that people who are educated about the death penalty are increasingly likely to oppose it. That certainly is true in my circumstance. I will readily concede to being part of the “intellectual elite,” though I am not sure it strengthens your arguments.

    Comment by Gordon Smith at August 13, 2004 08:34 PM

    ***

    ” (defense attornies showing up to court drunk or falling asleep during cross,”

    Those are ancedotes, but real appellate records from Texas.

    However, a number of issues get conflated, such as in the Odell Barnes case where (a) he was probably innocent of the murder for which he was executed but (b) committed a large number of rape/murders where he left DNA evidence behind.

    There are really two kinds of “wrongful” death penalty cases.

    The first involves people who are professional criminals who happen to get the death penalty for the wrong crime, though deserve it under the statutes for other crimes they have committed.

    The second, and this is a signicant group, is those individuals who are accused of horrific crimes and railroaded. What I will call “true innocents.” While much smaller in number, they are the reason why real reform is important.

    If we are going to have the death penalty, we need a designated investigative group from outside, a designated defense group (rather than locally appointed attorneys — even though some are quite good) and possibly designated prosecutors.

    BTW, my favorite (for discussion) capital murder case involves a man who was found not guilty, but hounded by police for years later because they were sure he just got away with the crime. DNA testing exonerated him — over a year after his death (which the DA didn’t know about when the tests were ordered).

    His mother’s letter to the editor about the entire matter haunted me for years. As did the victim’s posters (she went missing just before I moved to Wichita Falls and when I showed up posters about her were everywhere).

    I also feel deterence is important. What the deterence argument states is that by balking at the death penalty, for each time we balk we insure that about a score of lives are lost.

    We sacrifice those people, we kill about twenty people on an alter of human sacrifice in exchange for moral indignation and self righteousness.

    Though, all said, I’ve had long periods of time when I could not have voted to put someone else’s child to death, regardless of the results. I just did not have it in me, and may still not.

    Comment by Ethesis (Stephen M) at August 14, 2004 09:33 PM

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    I have been ably defended by others.
    I only add that rejecting ‘natural feelings’ because of the ‘natural man’ scripture is a bit of the stretch.
    Filial affection, paternal love, and so on are also natural feelings.
    I for one am inclined to credit those universal sentiments that relate to ordinary enough affairs that the common person can understand it and where one’s self-interest isn’t involved.

    Comment by Adam Greenwood at August 16, 2004 06:48 PM

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