Death Penalty

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Jon Rowe

Jon Rowe is a full Professor of Business at Mercer County Community College, where he teaches business, law, and legal issues relating to politics. Of course, his views do not necessarily represent those of his employer.

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118 Responses

  1. Avatar E.C. Gach
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    says:

    “But when there is no doubt that someone has done something like this, I’d like to see a system where we not just execute these people but do so within a less than 10 year time frame.”

    So you would decide ahead of time which cases could be appealed and which ones could not?Report

    • Avatar Jon Rowe in reply to E.C. Gach
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      says:

      No I just think with these “no doubt” cases we should be able to get the job done within less than 10 years. Singapore manages to do so.Report

      • Avatar BSK in reply to Jon Rowe
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        says:

        “Get the job done…”

        What is the “job” that needs doing? There are a lot of theories on the role of the prison system. Is it designed to punish? To rehabilitate? To serve as a deterrent to others? To protect the public?

        That is why the terminology has shifted so often (compare the etymology of “penitentiary” to “correctional facility” etc.). The only justification I see, in modern society, for the death penalty is if you feel that the system is designed to punish. I do not submit to that logic and shudder at the idea of granting such power to the state.Report

        • Avatar Jon Rowe in reply to BSK
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          says:

          Punishment or retribution IS one of the four traditionally recognized reasons for criminal justice. If not the state, then WHOM? Folks who harm others deserve punishment for the wrong they do to others.

          Out of the four traditional reasons for criminal justice, it’s “rehabilitation” that’s the proven failure.Report

          • Avatar BSK in reply to Jon Rowe
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            says:

            JR-

            Do you believe that rehabilitation is impossible? Or that our current system is incapable of achieving it?

            I do not equate punishment with retribution. Not necessarily. If I harm you and am required to account for my harm to you, that is one thing. But if I harm you and the response is to harm me, I don’t know what that accomplishes.

            And what of the convicted murdered who seeks death? Do we refuse to give him the death penalty, since it won’t actually be punishment?Report

            • Avatar Jon Rowe in reply to BSK
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              says:

              Rehab isn’t impossible. It’s just, out of the four, the least effective (assuming there is a just way to measure effectiveness of “retribution”). One thing, interestingly that DOES work — one of the FEW things — in rehabbing inmates is prison education. But I’m not sure what is the cause and what is the effect?

              “But if I harm you and the response is to harm me, I don’t know what that accomplishes.”

              This really isn’t the place to draw it out, but a long line of philosophic literature can justify “repayment” or “just rewards and punishments” for those who do bad.

              “And what of the convicted murdered who seeks death? Do we refuse to give him the death penalty, since it won’t actually be punishment?”

              It’s punishment in an objective, not subjective sense.Report

              • Avatar BSK in reply to Jon Rowe
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                says:

                JR-

                Thanks. Not sure I would agree with those texts, but I hope we can agree that reasonable can disagree on that. Still, if you can point me towards specific ones that are particularly illuminating, I’m all ears (or eyes).

                Prison education is where I would intuitively start any type of rehab efforts. The current system is far better at turning petty criminals into major criminals than it is at turning any criminal into a non-criminal going forward. So, there clearly is the ability for prison to be transformative, it is just more likely (and probably easier) for guys to go bad (or badder) than to go good.

                Personally, I don’t think someone like this guy should really be looked at as a rehab candidate. He should be locked up and the key thrown away. We (theoretically) have the ability to so isolate him from other individuals as to limit his ability to do further harm to effectively 0. To me, that is the goal. I’m just not sure what is gained by killing him.Report

              • Avatar Matty in reply to Jon Rowe
                Ignored
                says:

                “And what of the convicted murdered who seeks death? Do we refuse to give him the death penalty, since it won’t actually be punishment?”
                It’s punishment in an objective, not subjective sense.

                Can you walk me through this, in what sense is someone punished if they get what they want? Because other people would consider it a punishment?

                If you hated the taste of alcohol you could “punish” me with a fine single malt, would that count?Report

        • Avatar Scott in reply to BSK
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          says:

          The “job that doing” is executing scum like that. Sadly, I believe that everyone that gets a death sentence also gets an automatic appeal. Some people just need to be killed for their crimes and I too wish we could do it faster. Too bad the Supreme Court won’t let states execute, rapists, child molesters and folks that import drugs. Besides speeding executions up, I’d also like to see executions done in public again.Report

  2. Avatar Mike Schilling
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    says:

    This case has nothing to do with delays or appeals. Gaynor hasn’t been executed because Massachusetts has no death penalty. A more “efficient” system like Texas’s might well have executed both Gaynor and Fickling, who, if Gaynor is to be believed (and that’s certainly an open question), isn’t guilty.Report

  3. Avatar RTod
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    says:

    Interestingly, Jon, I approach this topic from the exact opposite direction that you do.

    I have no problem with the concept that certain people being put to death for the particularly heinous actions they have taken. However, the constant reinforcing of the fact that people of different races and income brackets experience different degrees to which they will receive fair trials makes me profoundly uncomfortable with the death penalty. It is therefore an issue that I’m never quite sure where I stand, and because of that I tend to err on the side of anti-death penalty.

    And, for the record, I am not sure that these discrepancies are due to government incompetence so much as human nature and fallibility.Report

    • Avatar Heidegger in reply to RTod
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      says:

      RTod, it doesn’t mean those convicted are innocent, it just means they can’t afford to pay the Junkyard Johnny Cochrans of the legal profession enough $$$ to pull the wool over the eyes of the jury. OJ Simpson drips blood from the crime scene, to his car, up the sidewalk, into the foyer, and right into his bedroom and he gets acquitted because some detective (Fuhrman) used the N-word twenty years earlier. Why is anyone on death row? How many large city homicide detectives do you suppose have never used the “N” word? Wasn’t it Rousseau who said, “Man of born free, yet everywhere remains in chains.” Well, not if you have Johnny Cochran as your lawyer. Oops. Just remembered he’s dead. No problem–there’s hardly a shortage of lawyers who will spring you for the right amount of cash thrown in their direction.Report

      • Avatar RTod in reply to Heidegger
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        says:

        “RTod, it doesn’t mean those convicted are innocent, it just means they can’t afford to pay the Junkyard Johnny Cochrans of the legal profession enough $$$ to pull the wool over the eyes of the jury.”

        Agreed. But that is where part of my lack of comfort comes from: a system where if you murder someone and you’re poor your life is probably taken; if you’re rich you’ll probably either get off completely or at the very least have a lesser sentence and keep your life.

        And, even that being said, I am still not convinced that – say – a poor black kid in Texas who is accused but innocent of murder has a lesser chance of getting the proverbial chair than does a rich white guy in Texas who is accused and actually did it.

        And so, as I said, I am very uncomfortable…Report

        • Avatar Heidegger in reply to RTod
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          says:

          RTod, “But that is where part of my lack of comfort comes from: a system where if you murder someone and you’re poor your life is probably taken; if you’re rich you’ll probably either get off completely or at the very least have a lesser sentence and keep your life.”

          I agree entirely, but what is the alternative? How many states have the money to pay for Dream Team lawyers? Or why should they get that kind of defense when the likelihood of them being guilty is very, very high. There’s an interesting Steven Pinker video going around on this site where he argues that we live in a significantly less violent society, world,—worth checking out.Report

          • Avatar RTod in reply to Heidegger
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            says:

            A fine point, and one that I struggle with. At the end of the day, I think I would rather have a system where they guy that gets the shaft is imprisoned and not killed, even if that means some guys I would be just as happy to have killed are imprisoned.

            But that’s a me and my morals thing.Report

          • Avatar RTod in reply to Heidegger
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            says:

            “There’s an interesting Steven Pinker video going around on this site where he argues that we live in a significantly less violent society, world,—worth checking out.”

            Thanks, I want to see that.

            My mother-in-law was here for Thanksgiving, and – speaking of my teenage kids playing Call of Duty – lamenting how much more violent society was than a generation ago. And I reflected that not only did we play WWII games with fake guns and our imaginations, we used to do things like have dirt-clod/rock-flinging fights.

            When I was growing up, play ground fights after school or even recess didn’t happen everyday, but they were common none the less. As was playing tackle football, or the very un-PC-named Smear-the-Queer… all of which often led to bloody noses, broken lips and black eyes. Any of those things today would get your kids suspended or expelled.

            I absolutely believe we’re getting less violent as a society.Report

      • Avatar Mike Schilling in reply to Heidegger
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        says:

        RTod, it doesn’t mean those convicted are innocent, it just means they can’t afford to pay the Junkyard Johnny Cochrans of the legal profession enough $$$ to pull the wool over the eyes of the jury.

        Baloney. There’s DNA evidence that’s proven some of them are innocent, convicted largely because of incompetent counsel (“experts” and “crime labs” that are shills for the prosecution don’t help, of course), but in the majority of cases nothing so open-and-shut is available. Appeals are hard to come by, and the prosecution fight them tooth-and-nail even when the evidence of false conviction is compelling. And the pardon system has become so politicized that pardons are rarer and rarer. The current system simply says “We don’t value a poor person’s life enough to spend a few bucks on a decent lawyer for him.”Report

  4. Avatar E.C. Gach
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    says:

    The threat of the death penalty also coerces those accused and awaiting trial to plead guilty for lighter sentences so as to avoid death rather than fight in court.

    Imagine being accused of something, but all evidence points to you doing it. But you didn’t do it, but there’s no proof of your innocence, and everything else actually points to you. Even your friends and family are skeptical of you now. You could fight it in court, and risk the death penalty, or go for the plea bargain and hope for the best in prison.

    And of course every state is different, I might be more apt to fight circumstantial evidence in a court in PA, but perhaps not as likely if indited in Texas, especially if I were a young black male.Report

    • Avatar Mike Schilling in reply to E.C. Gach
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      says:

      That isn’t unique to the death penalty. The article linked to describes Fickling’s pleading guilty to manslaughter to avoid a life sentence, rather than trying to prove his innocence in the new trial he’d been granted. Jonathan Pollard also pled guilty to avoid a life sentence, thought the government managed to overturn the plea bargain and give him life anyway.Report

      • Avatar E.C. Gach in reply to Mike Schilling
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        says:

        You’re right of course, but I can’t help think that the coercive potential of a life sentence just isn’t the same as the prospect of the death penalty.Report

        • Avatar Mike Schilling in reply to E.C. Gach
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          says:

          To quote our favorite stick-up man, “No doubt.” But the difference is one of degree, not of kind.Report

          • Avatar Boegiboe in reply to Mike Schilling
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            says:

            This is wrong, of course. The threat of the death penalty is a threat that it will be impossible that you eventually are proved innocent. Life in prison still allows for some new evidence to set you free. This difference in kind that you deny is precisely the reason I oppose the death penalty in absolutely all cases. I sympathize with Jon’s feeling that some people are inhuman monsters that should be executed. However, allowing the death penalty at all creates the slippery slope that has us–yes, us; we are paying for the killing–murdering innocent people because they couldn’t afford a good lawyer.Report

            • Avatar Mike Schilling in reply to Boegiboe
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              says:

              The threat of the death penalty is a threat that it will be impossible that you eventually are proved innocent.

              Really? Innocent people accept life sentences with equanimity because they expect that they’ll someday be vindicated?Report

  5. Avatar Jaybird
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    says:

    Does the Venn Diagram of people who oppose the death penalty for this guy overlap at all with the set of people who wouldn’t mind if somebody’s brother or cousin happened to shoot this guy?

    If so, and if you are one of those people, how do you square this?Report

  6. As a deterent the death penalty has become a joke. As a society I am increasingly less comfortable with the death penalty as a form of punishment/retribution. It’s partially the principle but mostly the fact that DNA reversals seem to be increasingly more common.Report

    • Avatar Scott in reply to Mike at The Big Stick
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      says:

      Of course the death penalty has become a joke as liberals do their best to thwart the system and then turn around and complain about how badly the system works. As for DNA reversals, they show the system does work by setting the innocent free.Report

      • Avatar Mike at The Big Stick in reply to Scott
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        says:

        Right – but how many more technological advances will we see in the future? I’d prefer to err on the side of caution. I also believe that life imprisonment is more of a deterrent.Report

      • Avatar mark boggs in reply to Scott
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        says:

        DNA reversals, they show the system does work by setting the innocent free.

        Assuming the folks haven’t been executed before DNA reveals the truth, but that’s just a small technical point.Report

      • Avatar James Hanley in reply to Scott
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        says:

        Of course the death penalty has become a joke as liberals do their best to thwart the system and then turn around and complain about how badly the system works.

        That’s a stunning failure of analysis. It’s the liberals who are showing how badly the system works, and trying to thwart that badness. Nobody operating without some really severe confirmation bias could believe that it’s the liberals who are causing the system to work badly.

        As for DNA reversals, they show the system does work by setting the innocent free.

        Yeah, as liberals fight for the use of DNA evidence and conservatives resist it.Report

  7. Avatar Alex Knapp
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    says:

    But when there is no doubt

    Since you’re a fellow attorney, enlighten me: how do you establish that there is a”no doubt” that someone committed the crime of which they are accused?

    I’d like to see a system where we not just execute these people

    What purpose does execution serve in this case?

    within a less than 10 year time frame.

    If he’s to be executed anyway, why does the timeframe matter?Report

    • Avatar Jon Rowe in reply to Alex Knapp
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      says:

      Alex,

      I’m not sure if this answers your question, but there are “no doubt” cases. The one I linked to is a no doubt case. Likewise the horrible home invasion Conn. murders were no doubt cases.

      Execution serves the purpose of justice in this case and the timeframe is relevant because justice delayed is justice denied.Report

      • Avatar Alex Knapp in reply to Jon Rowe
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        says:

        Jon,

        I’m not sure if this answers your question, but there are “no doubt” cases.

        So you’ve said. So how do we define them, legally, so they can be dealt with in the manner you suggest?

        The one I linked to is a no doubt case.

        Is it? You’ve read the trial transcripts? Reviewed tapes of the interrogations? Assured youself that the defendant is confessing without coercion? Consulted psychiatrists to assure that he is free of mental defect and capable of pre-meditation?

        Just curious as to how you KNOW there’s no doubt–which is why I asked for an articulated legal standard in the first place.

        Execution serves the purpose of justice in this case

        How so?

        timeframe is relevant because justice delayed is justice denied.

        Why does eleven years create a “delay” that “denies justice” but nine years doesn’t?Report

        • Avatar Jon Rowe in reply to Alex Knapp
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          says:

          Well I wonder, whatever I write are YOU going to hold me to a “how can you prove are not a brain in a vat, or that we aren’t living in a Matrix standard?” Because that’s the feeling I get this line of inquiry taking. Obviously I didn’t mean that by “no doubt.”Report

          • Avatar Alex Knapp in reply to Jon Rowe
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            says:

            Jon,

            You said you want a system where “no doubt” cases are treated differently than others. I just want to know how you define what “no doubt” means. So far, you haven’t, except to say “look at this case”? So I have to wonder, by what standard is the case linked above a “no doubt” case compared to others?Report

            • Avatar Jon Rowe in reply to Alex Knapp
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              says:

              How do you (or does the criminal justice) system define “beyond a reasonable doubt”? “Preponderance of the evidence” has a number one can put behind it. I was going to say no doubt = no doubt. If you want to call that a legal fiction like the “reasonable person,” go ahead. But no doubt would be something stricter than beyond a reasonable doubt. Courts in their common law method could construct prophylactic tests like DNA + confession or DNA plus videotaped accounts or DNA + multiple eyewitnesses. In any case there is no doubt this man did what he did, that Colin Ferguson did it, that the two Conn. home invaders did it and so on.Report

              • Avatar Alex Knapp in reply to Jon Rowe
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                says:

                I was going to say no doubt = no doubt. If you want to call that a legal fiction like the “reasonable person,” go ahead.

                I assumed that it was, but that doesn’t mean that “reasonable person” is a useless legal standard.

                Courts in their common law method could construct prophylactic tests like DNA + confession or DNA plus videotaped accounts or DNA + multiple eyewitnesses.

                Okay, that’s more like what I was trying to understand. I think I have issues with DNA + confession, due to the numerous problems with confessions in general, but the other two aren’t bad if we let the caselaw establish a standard over time.

                I am still left a little uncertain as to why this standard is necessary, though.

                In any case there is no doubt this man did what he did

                How so? All I’ve read about the case is the newspaper account. Is there more information that you’re using as a basis for judgement than that?

                If all you’re going on is media accounts, I have to find that problematic. I seem to recall at one point that there was “no doubt” that Richard Jewell was the Olympics bomber and “no doubt” that Jon-Benet Ramsey’s parents killed their daughter…Report

      • Avatar Mike Schilling in reply to Jon Rowe
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        says:

        I’m not sure if this answers your question, but there are “no doubt” cases. The one I linked to is a no doubt case.

        Man with nothing to lose pleads guilty to a few more murders to get his nephew off the hook. Sure, how could anyone doubt that guy?Report

    • Avatar Jaybird in reply to Alex Knapp
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      says:

      The whole “no doubt” thing can be taken to a bit of a wacky extreme, no?

      Let’s look at CLIMATE DENIALISM!!!

      See? We all know that skepticism of authority beyond a particular point is a moral failing.

      Okay, snark mode off.

      I remember in the run-up to Gulf War II getting into an argument over Saddam. I argued (among other things, at the time I was a big supporter) that a decapitation attack ought to be sufficient. Kill the right dozen people, I thought, and everything would be okay. The person I was arguing against took the position that we didn’t know that Saddam was guilty of anything. Maybe he was a puppet and otherwise innocent… sure, guilty of a few things, but nothing that merited *DEATH*, per se.

      Of course I started making comparisons to Hitler and comparisons to modern defenders of Hitler (that’s how I roll, after all) and the conversation went downhill quickly after that.

      All that to say, it is possible to be skeptical to the point where it’s no longer reasonable. There are murderers who are guilty of murder and we have such things as DNA evidence, blood evidence, fiber evidence, and an uncoerced confession.

      At this point, I’d say that we’d have “no doubt”.

      If you want to appeal to a Life of David Gale scenario, you can… I just don’t know that it’s quite the counter-argument you think it is. Someone with sufficient will can *ALWAYS* get the government to kill them.Report

      • Avatar Alex Knapp in reply to Jaybird
        Ignored
        says:

        The whole “no doubt” thing can be taken to a bit of a wacky extreme, no?

        I agree, which is why the relevant legal standard is “beyond a reasonable doubt” and not “no doubt.” Jon is suggesting that there be a special category of case called “no doubt” in which punishment can be meted out in a more expeditious manner, and I was curious as to what the “no doubt” standard looks like.Report

        • Avatar Jaybird in reply to Alex Knapp
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          says:

          We seem to be dancing between two definitions.

          Switching off between “legal” and “moral”… I suspect that Jon is making appeals to the moral while you’re appealing to the legal. That may be where some (most) of the unhelpful disagreement seems to be…Report

          • Avatar Scott in reply to Jaybird
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            says:

            Jaybird:
            And you seem to really want to help the discussion by stirring the pot.Report

            • Avatar Jaybird in reply to Scott
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              says:

              You never know what will bubble up!

              Here, I’ll give my take:

              If I do not feel like I would have the “right” to do X, I do not see how The State would have the “right” to do X.

              So if we were in a situation where it would be okay for me to kill you, then I’d be willing to say that we were in a situation where it would be okay for The State to kill you.

              As such, I’m not particularly a fan of the panopticon. It strikes me as akin to slavery.

              But this is a moral argument… what about the legal? How do you regularize or institutionalize such a moral framework?

              I dunno. The panopticon seems particularly monstrous, though.Report

          • Avatar Alex Knapp in reply to Jaybird
            Ignored
            says:

            Jaybird,

            Jon said:

            But when there is no doubt that someone has done something like this, I’d like to see a system where we not just execute these people but do so within a less than 10 year time frame.

            That seems like a policy/legal proposition to me. So I was curious, since Jon is an attorney, how he would legally define a “no doubt” case.Report

            • Avatar Jaybird in reply to Alex Knapp
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              says:

              Ah, yeah, there’s a definite blurring there.

              I imagine that if he’s involved in either prosecution or defense, he has seen any number of folks who are, no doubt, guilty.

              They definitely did rob the gas station.
              They definitely did push their mom down on the driveway in order to get past her to the car in order to go to the liquor store to buy more beer.
              They definitely did buy two ounces of mushrooms.

              You encounter a story like the above and you’ve got a situation where you know, no doubt, that the guy killed two hands’ worth of fingers people.

              Given that we know, no doubt, it seems odd to put so much emphasis on protecting the murderer.

              Saying something like “for the same reasons we don’t torture” seems hollow and insufficient.Report

              • Avatar Alex Knapp in reply to Jaybird
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                says:

                I imagine that if he’s involved in either prosecution or defense, he has seen any number of folks who are, no doubt, guilty.

                Lots of times law enforcement or the lawyers involved just know the defendant did it… and are still wrong. Take the Cameron Todd Willingham case. Even though it’d been demonstrated that he could not have possibly been guilty of the crime he was charged with, the arresting officeer still insisted that Willingham did it because he was “too cold”…

                Given that we know, no doubt, it seems odd to put so much emphasis on protecting the murderer.

                The point is not to “protect” criminals. The point is the make the state prove the case that the defendant is, in fact, a criminal.Report

            • Avatar Scott in reply to Alex Knapp
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              says:

              Personally, I would compare a “no doubt” criminal case to a civil case in which you could get a summary judgment.Report

      • Avatar Rufus F. in reply to Jaybird
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        says:

        I don’t know if I was an enthusiastic supporter exactly, but I did have someone ask me angrily if anything good could come from invading Iraq, and when I shrugged my shoulders and said, “Sure, we could kill Saddam”, he said, “What right do we have to kill their leader? And who are we to call him a tyrant? After all, they did vote for him!”Report

        • Avatar Scott in reply to Rufus F.
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          says:

          Yes they voted but at gunpoint, so I guess if that makes it legitimate to someone.Report

        • Avatar Jaybird in reply to Rufus F.
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          says:

          He got, like, 100% of the vote!

          Now if *I* were advising him, I would have come up with a puppet opposition. Have some guy scream and yell about The Jews and how Iraq needed to go to war with the rest of the Middle East and so on and so forth and hold an election and win *THAT* election with, oh, 70% or so (I mean, he did control the election results).

          And then people could argue that, sure, Saddam was bad but the other guy was EVEN WORSE! Besides, he won an election fair and square.

          The 100% thing gave the game away.Report

          • Avatar Matty in reply to Jaybird
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            says:

            did anyone ever see a BBC programme called, Holiday’s in The Axis of Evil? There is one bit where they are filming in Iraq at Sadam’s last ‘election’ and the presenter say deadpan “I’m not sure, but I think he might have won”

            They then go out onto a balcony and show that the sound of crowds celebrating is being played from loudspeakers to an empty street.Report

      • Avatar Mike Schilling in reply to Jaybird
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        says:

        I remember in the run-up to Gulf War II getting into an argument over Saddam. I argued (among other things, at the time I was a big supporter) that a decapitation attack ought to be sufficient. Kill the right dozen people, I thought, and everything would be okay.

        I don’t think even that many. Cheney, Rumsfeld, Perle, Wolfowitz, Feith, maybe two or three more, and we’d never have come close to invading Iraq.Report

  8. Avatar BSK
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    says:

    “DNA reversals, they show the system does work by setting the innocent free.”

    I’m sorry, but that is assbackwards logic. It assumes that putting innocent people in jail is part of the system. Will there be mistakes? Obviously. But the alarming frequency with which they happen demonstrates just how much the system is not working.Report

    • Avatar Scott in reply to BSK
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      says:

      BSK:
      As long as fallible humans are in involved in the system then mistakes will be made, sorry. The fact that courts will allow new DNA evidence to overturn a conviction is a sign that the system can self correct. Witness ID is not always reliable so are you going to start a campaign to stop it use?Report

      • Avatar ThatPirateGuy in reply to Scott
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        says:

        So when these mistakes lead to the execution of innocent people then we have totally increased the deterrent effect. I mean if the government will kill innocent people just imagine what they will do to guilty ones right Scott?Report

      • Avatar BSK in reply to Scott
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        says:

        I fully acknowledged that mistakes will happen and will likely be part of even the most well-run, effective system. But I think what we have is a far cry from that.

        The opportunity to self-correct is a welcome addition to the system. But how about we do our best to avoid the need to self-correct? Do you really think we are doing our best at that?Report

  9. Avatar Jaybird
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    says:

    I suppose it should also be pointed out that our current law enforcement system and our court system and our prison system are so freakin’ dysfunctional that to think that they ought to be trusted with life/death stuff is laugh-so-you-don’t-cry stuff.

    But, theoretically…Report

  10. Avatar Pat Cahalan
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    says:

    The problem I have with a “no doubt” standard is that all it will take is a particularly heinous crime with a particularly unsympathetic defendant and the “no doubt” standard will slowly but surely begin it’s merry way to “okay, well, maybe a *lllleeeeetle bit* of doubt…”

    The state ought not to be executing people. If anybody should be killing somebody, it isn’t the state. If we have to continue to entertain this, “ZOMG some crimes are so horrible they deserve death” line of argument to have a sustained society, I’d rather see “justifiable retribution” entered into law as a legal *defense* against a murder charge, using the existing “reasonable doubt” standard.

    Then you can let the guy out of jail and, if he truly deserves to die for whatever he did, I’m sure one of those affected by what he did will be willing to shoot the fucker in the face and get arrested and stand trial for murder, on the grounds that they might be acquitted for “justifiable retribution”. If you’re not willing to maybe do the time, you probably ought not be killing people. You probably also ought not be calling to have the state do your killin’ for you.Report

  11. Avatar tom van dyke
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    says:

    What if WikiLeaks kills more innocents than capital punishment?

    Just axin’.

    Immediately after the release of the documents, National Security Adviser Jim Jones issued a statement in which he said, “The United States strongly condemns the disclosure of classified information by individuals and organizations which could put the lives of Americans and our partners at risk, and threaten our national security.”

    Apparently the revelations in the documents are really getting to the folks in Washington because they’re ramping up the rhetoric even more. Referring to Julian Assange, founder of WikiLeaks, Admiral Mike Mullen, Chairman of the Joint Chiefs of Staff, said, “Mr. Assange can say whatever he likes about the greater good he thinks he and his source are doing, but the truth is they might already have on their hands the blood of some young soldier or that of an Afghan family,” according to a report from Australian Broadcasting Corporation News.

    The report also noted that Defense Secretary Robert Gates said that the document leak “had potentially severe and dangerous consequences for troops on the ground” and “could also pose a threat to those Afghan nationals assisting the coalition.”Report

    • Avatar ThatPirateGuy in reply to tom van dyke
      Ignored
      says:

      What if wars kill more innocents than capital punishment?

      But more interesting do you know how to stop wikileaks or similar organizations? Assuming you don’t completely destroy your ability to communicate internally or course.

      Because I’m not sure I know a way to actually do it.Report

    • Avatar Pat Cahalan in reply to tom van dyke
      Ignored
      says:

      > What if WikiLeaks kills more innocents than capital punishment?

      American-driven automobiles kill more people than Wikileaks, capital punishment, *and* person-committed homicide put together.Report

      • Avatar tom van dyke in reply to Pat Cahalan
        Ignored
        says:

        There seems to be a resistance here to considering the original question, Mr. Cahalan. This does not surprise me, but it goes to the ethics—or morality, pick a word—of being obliged to consider the potential consequences of our actions.

        As you know, some folks think pure motives are sufficient, let the chips fall where they may. Some shy away from “moral hazard” so much they become impotent; others do not recognize moral hazard atall, only motive.

        As for driving a car, we accept the moral hazard, or at least most of us do, since not all of us can just sit home [or ride bicycles] in order “to do no harm.” However, driving a car irresponsibly is an unacceptable moral hazard, so I believe that addresses your reservation.Report

        • Avatar Pat Cahalan in reply to tom van dyke
          Ignored
          says:

          > There seems to be a resistance here to considering the original question

          Here’s the original question: “What if WikiLeaks kills more innocents than capital punishment?”

          I’m not sure where one is supposed to go with that question. I can imagine hypothetical constructs where Wikileaks both does and does not kill more innocents than capital punishment. That doesn’t particularly inform the situation any.

          Let’s say Wikileaks puts some information on the web (which they received from some other third party – who, by the way, would probably have distributed it with or without Wikileaks being around). Let’s say someone acts on the publication of that information by killing somebody. Okay, so… where are we? Is this the fault of Wikileaks, the third party, or the person who killed the someone?

          This doesn’t really compare, in an agency analysis, to the state executing someone wrongly. Where are we there? Is this the fault of the state, the person who originally did the killing, the friends of the victim who raised a public outcry, the attorney general who went after the death penalty, the defense attorney who may or may not have done their job, the judge who disallowed some evidence?

          For me it’s simple. If you think somebody should be dead for some reason, have the gumption to kill them yourself. Don’t ask the state to do it for you. Don’t ask me to judge whether or not they deserve to die for the injury they’ve done you. Don’t ask the rest of the citizens to take on the moral hazard of supporting a state that executes people. If you’re not willing to take the consequences of killing someone yourself, you shouldn’t be killing people.

          If you *are* willing to take on those consequences, then we can talk about whether or not I have a right to judge you 🙂Report

      • Avatar Heidegger in reply to Pat Cahalan
        Ignored
        says:

        Pat, honest to God, I wasn’t trying to steal your idea about cars and capital punishment–I hadn’t even read it–at least one great mind (not mine) thought together.Report

    • Avatar Heidegger in reply to tom van dyke
      Ignored
      says:

      Tom–in the span of 21 years the “Innocence Project” has led to exoneration of 17 convicted murderers, which is really incredible when you think of it. It shows the extraordinary measures taken to ensure that an innocent person is not executed. Remember, these were people that ultimately DID get acquitted. That means, to me at least, there does not exist a single case in which it can be established that an innocent person was executed. Not perfect, but what is? Do you have any idea of of how many thousands and thousands of convicted murderers there have been since 1989, and remarkably, only 17 cases have been overturned. That saying, “better that a thousand murderers be set free than one innocent executed” is complete bunk. There is not one single case in the two hundred years of our republic, where it can be demonstrated that an innocent man has been executed. Most unfortunately, Mumia didn’t swing from the gallows which is where he belonged.Report

      • Avatar greginak in reply to Heidegger
        Ignored
        says:

        Wow very impressive. The only problem with this argument is that the innocence project can only take cases where there is enough evidence, usually DNA, to try to establish innocence. Nor do they have enough staff to take every case they might, they can only take those cases where it looks like they have a good chance to succeed. So what you and the innocence project has proven is that among one subset of convicted murderers they are innocent men who were wrongly convicted. The only difference between convicted murderers without enough physical evidence for the IP and convicted men with enough DNA for the IP is a few test tubes or pieces of fabric. So there are certainly innocent convicts without testable DNA sitting on death row since DNA was not collected or even a possibility in many cases for a long time.

        OBTW i assume you know or can figure out that after an execution people usually stop working the cases to prove innocence. In fact there was a case a few years ago where a convict was executed and his lawyers asked for his DNA to be tested posthumously to see if he was innocent. You get one get one guess whether the Governor in that state, either Texas or Virginia i think, allowed the DNA to be tested. So the fact that no one has absolutely proven an innocent man has been executed proves very little.Report

        • Avatar Heidegger in reply to greginak
          Ignored
          says:

          Greg–“So the fact that no one has absolutely proven an innocent man has been executed proves very little.” PROVES LITTLE????? Could you imagine the car industry saying that only 17 people died in car accidents within a span of 21 years? Or planes? Trains? Or eating peanut butter sandwiches? Or bungie jumping off cliffs? Or choked on chicken wings. Innocent people die every day–it’s called life. Why do we expect such perfection in the justice system Surprise, surprise, there really are people who actually do commit murder and are legitimately convicted and executed and the only thing I can say about that is, “Hang ’em High!”Report

          • Avatar Pat Cahalan in reply to Heidegger
            Ignored
            says:

            Dude. Your analogy is completely inverted.

            > Could you imagine the car industry saying that only 17 people died
            > in car accidents within a span of 21 years?

            Given that there’s 3,263 people on Death Row (as of 1/1/08, best number I could pull out of a hat at a moment’s notice), 17:3,268 as a ratio bears no resemblance whatsoever to x:254,000,000 (254 million being the number of cars on the road in 2007 alone). Let’s say the population of actual cars on the road in 21 years is three billion (a hugely conservative guess), the actual ratio is x:3,000,000,000.

            So if 17:3,268 as x is to 3,000,000,000, the number that would actually make your analogy make numerical sense is x=15,605,875.

            I would say if the auto industry stood up and said that only 15 million people died on the road in the last two decades, we’d probably insist that they stop screwing up so goddamn much, no?

            > Surprise, surprise, there really are people who actually do
            > commit murder and are legitimately convicted and executed
            > and the only thing I can say about that is, “Hang ‘em High!”

            That’s not a surprise.

            And yes, innocent people die every day. Some of them die because they’re stupid. Some of them die because random bad things happen. Nobody needs to die because we believe that they’re “acceptable losses” *for institutional revenge*.Report

            • Avatar Heidegger in reply to Pat Cahalan
              Ignored
              says:

              Pat—forgot you were the “numbers” guy-you should be in Vegas counting cards for big, big $$$. And yes, 15,605, 875 highway fatalities is a bit steep even for Hudsons, although ambulance chasing lawyers like John Edwards would just drool at the possibilities. I think your math is wrong, however. You need to divide 17 by 21=.809 (average number of of yearly fatalities or executions)–it just does not matter whether there are 1 trillion cars on the road or 10 trillion cars–you ONLY have the very hard number that 17 people escaped the noose in a 21 year period and this figure has to be applied equally, to traffic fatalities and executions regardless of the numbers of cars on the road or numbers of people incarcerated. The number 17 is a fixed number over a 21 month period–you cannot adjust it based on the two different populations.Report

              • Avatar Pat Cahalan in reply to Heidegger
                Ignored
                says:

                > It just does not matter whether there are 1 trillion cars on
                > the road or 10 trillion cars–you ONLY have the very hard
                > number that 17 people escaped the noose in a 21 year
                > period and this figure has to be applied equally

                No, dude. No, no, no. Sorry, you are wrong.

                If you’re looking at *incidence rates*, the size of the population absolutely matters. It’s totally critical. Your analysis literally means nothing without it.

                This is what life insurance bean counters do every day. They are very, very good at it. When comparing badness, you compare rates inside a population to rates inside another relevant population. This is simplified math, as I’m not a actuary, but the concept is one that I’m pretty familiar with:

                Car deaths, largely, track with the number of cars on the road (not directly to the U.S. population, as not everybody drives)

                False death row convictions track to *total death row convictions*.

                This is how you get a failure rate analysis. Given Activity A, which occurs N times in period Delta, the frequency of badness incident B is B(n)/N(A), the number of times bad thing B happens divided by the time of times activity A occurs.

                If you’re comparing Activity A to Activity P to figure out which is “more dangerous”, you compare

                B(n)/N(A)
                to
                Q(n)/N(B)

                (spoiler alert: I did in fact make errors in my comment, as I was being hasty and trying to use brevity, but they are largely cosmetic errors, bonus points if you find ’em).Report

              • Avatar Mark Thompson in reply to Pat Cahalan
                Ignored
                says:

                (spoiler alert: I did in fact make errors in my comment, as I was being hasty and trying to use brevity, but they are largely cosmetic errors, bonus points if you find ‘em).

                [Raises hand]. 3 billion cars on the road in 21 years? And that’s a conservative estimate? 300,000,000 cars would be more like it. With those numbers, you get down to 1,560,578 deaths over 21 years, or about 75,000 per year, which is roughly double the existing rate. And, of course, we don’t know about any cases where the executed should have been exonerated but was not due to a lack of relevant DNA evidence.Report

              • Avatar Heidegger in reply to Pat Cahalan
                Ignored
                says:

                A seriously,major, whoops.
                Pat, good lord, what the hell was I thinking? Am I completely nuts–getting into a debate with a math professor about, of all things, numbers and statistics? Eh gads. Thanks SO much for the correction (quite elegant I may add)–and I better find those errors of yours fast–it’s going to take a lot of bonus points to raise my grade from an F- to a D-!
                Also, thanks to Alex and Mark.Report

              • Avatar Heidegger in reply to Pat Cahalan
                Ignored
                says:

                Yes, it really was a total inversion.Report

              • Avatar Alex Knapp in reply to Heidegger
                Ignored
                says:

                Whoa, wait. Re: 17 exonerations. Your numbers are off. WAY OFF. 17 is the number of post-conviction exonerations of death row inmates through DNA evidence accomplished by just one Innocence Project (the Cardozo project — there are many, in fact).

                Since 1976 (when the death penalty resumed in the United States), there have been 132 exonerations of death row inmates. Not 17.

                And that’s just death row inmates — not murder convictions in general.Report

        • Avatar Heidegger in reply to greginak
          Ignored
          says:

          Greg, “So there are certainly innocent convicts without testable DNA sitting on death row since DNA was not collected or even a possibility in many cases for a long time.” How could you possibly know such a thing or make such an assumption? I think this qualifies as a genuine, reductio ad absurdum. And John Wilkes Booth deserves another trial, dammit!Report

          • Avatar greginak in reply to Heidegger
            Ignored
            says:

            heavy sigh…ever take a basic stats course or learn about samples from distributions. I know, i know, the answer is no. There is no significant or pertinent difference between the groups: convicts with DNA evidence and those without DNA evidence so the logical and obvious assumption is that the various groups in have similar distributions.

            Ummm DNA wasn’t collected until relatively recently since we didn’t have the means to test or at least test it often enough to make is useful. That has never been a disputed fact.

            Does my example of the Governor of a state preventing testing DNA after an execution mean anything to you? No of course not. But it is just one data point. If people have been exonerated from death row due to DNA evidence and the IP what do you think happened before the IP and DNA evidence???Report

      • Avatar Pat Cahalan in reply to Heidegger
        Ignored
        says:

        > In the span of 21 years the “Innocence Project” has led to
        > exoneration of 17 convicted murderers, which is really
        > incredible when you think of it. It shows the extraordinary
        > measures taken to ensure that an innocent person is not executed.

        I was not aware that the Innocence Project was funded by the U.S. Department of Justice.

        This is like saying (presuming it was true), “In the 21 years of Head Start, not one kid in the Head Start program has gone on to become a drug-addled murderer! MAN, those Juvenile Hall guys are doing a bang-up job.Report

      • Avatar Bucky in reply to Heidegger
        Ignored
        says:

        Heidegger:

        Just because you aren’t aware of any case where an innocent man was executed and then exonerated doesn’t mean they don’t exist. I know of at least two cases here in Texas where innocent men were executed: Claude Jones and Cameron Todd Willingham. You can do your own Google work to read the details.

        And these are just two that I am familiar. I would find it unusual if these were the only two.

        But there you go … you know have evidence that in not one, but two cases innocent men were executed.

        I am sure that the evidence will bring about a swift change in your opinion on the death penalty.Report

        • Avatar Scott in reply to Bucky
          Ignored
          says:

          Becky:

          Such BS. The DNA testing in the Jones case didn’t implicate another shooter, so the results don’t prove Jones’ innocence. He was a career criminal and was part of a three man robbery crew that killed a liquor store owner. The jury convicted him and so there is one less career criminal. As for Willingham, nothing has proved that he was in fact innocent just that bad science was used to convict him.Report

          • Avatar Pat Cahalan in reply to Scott
            Ignored
            says:

            > The jury convicted him and so there is one less career criminal.

            Why am I thinking that the data point “he was a career criminal” factors very strongly into your analysis here?

            This is how I read your comment: “Who cares if we executed somebody for something they didn’t do? They were just a career criminal. Good riddance.”

            Is that an unfair characterization?Report

  12. Avatar tom van dyke
    Ignored
    says:

    Just throwing an ethical monkey wrench into the gears of certitude, Mr. Guy.

    Sure, the question of war is equally relevant. That’s where all that “just war” business gets started. But one monkey wrench at a time. This one seems, at least at first blush, to be more approachable.Report

    • Avatar Chris in reply to tom van dyke
      Ignored
      says:

      Wikileaks is a tougher issue, in my mind, than the death penalty. Since there is no evidence that the death penalty is a deterrent, for example, then it’s almost certainly the case that the death penalty has a net loss in innocent lives. What’s more, the death penalty has several other things going against it, not the least of which is the fact that it makes further due process impossible (an important fact in a flawed, and in fact biased system).

      Wikileaks, on the other hand, if it functions well (that is, if instead of giant dumps of diplomatic cables, it’s more focused on human rights issues and abuses of power, as it was for a while), could save more lives, on average. It might even do this if it keeps doing the occasional giant dump of diplomatic cables. This is certainly not the only factor in determining whether Wikileaks is good, or whether any particular action Wikileaks takes is good, but it at least shows that it’s not as straightforward, from a simple life calculus, as the death penalty. Furthermore, while there are few possible negative side issues related to doing away with the death penalty, the negatives for silencing Wikileaks could be extreme.

      This is all of course assuming that Wikileaks costs lives at all, which we have no evidence of it doing (it hasn’t appeared to affect policy in a way that would save lives yet, either, but we’re speaking hypothetically here, eh?).Report

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