Death Penalty in Decline

Mike Dwyer

Mike Dwyer is a former writer and contributor at Ordinary Times.

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146 Responses

  1. Michelle says:

    Great post, Michael. Coming from Illinois, where a bunch of death row prisoners were exonerated by DNA evidence, leading former Gov. Ryan to put a moratorium on the practice, I agree with your reasoning. Plus, I think life in prison without possibility of parole is sufficient to guard public safety and punish the convicted.

    Granted, I don’t lose any sleep when folks like Timothy McVeigh or Ted Bundy are executed, but overall I don’t see the death penalty as a deterrent. It’s a form of revenge where the chances of killing the innocent are too great to take the risk.Report

    • LauraNo in reply to Michelle says:

      Yes. As long as there is any chance of an innocent person being killed, it is too great a chance. Add the fact of sentencing disparities and considering how police are predisposed to arresting the first likely subject AND considering the cost involved, the only thing that explains the preference for the death penalty is pure vengeance. Which is not a proper role for the state.Report

  2. Art Deco says:

    leading former Gov. Ryan to put a moratorium on the practice,

    Yeah. Great idea:

  3. Art Deco says:

    At some point in the last few years I realized that I could not reconcile my pro-life position on abortion with a pro-death penalty stance.

    One is innocent, one is not and had a personal trial. What’s hard to reconcile?Report

    • Mike Schilling in reply to Art Deco says:

      And if he had incompetent, underfunded counsel, exculpatory evidence was withheld, and the state refuses to do DNA testing that might exonerate him, big deal. He had a trial.Report

      • Mike Dwyer said:

        While I am morally outraged by the doctor who performs a procedure I believe is murder, I am equally outraged by the state-sanctioned murder of a criminal.

        That sentiment is not contingent on bad procedure or prosecutorial misconduct.Report

      • Mike Schilling in reply to Mike Schilling says:

        So, is your support for the death penalty contingent on doing a more thorough job of making sure its victims are actually guilty, or you’re fine as things are?Report

    • Russell M in reply to Art Deco says:

      when we do put the wrongly convicted to death. if just one abortion is a tragedy that taints all our souls, does not the killing of an innocent man or woman taint us as well?Report

    • Alan Scott in reply to Art Deco says:

      One is innocent, one is not and had a personal trial. What’s hard to reconcile?

      Surely any moral justification for a pro-life position that isn’t simply an objection to women having sex is predicated on some belief in the sacredness or fundamental dignity of human life.

      The idea that someone is more or less deserving of death is an anathema to the very idea of human life as sacred. It’s knee-jerk gut-feeling false morality. Any true moral examination of the death penalty in such a framework must instead ask “is our purpose in violating the fundamintal dignity of human life worth it?” The purpose of capital punishment is vengeance, peace of mind. We call out for blood because blood makes us feel safe, feel better about how the world works. This is a thin justification for ending a life, and certainly far thinner that that offered by abortion advocates.Report

      • Jaybird in reply to Alan Scott says:

        And yet… Eichmann still needed killin’.

        Let’s try to write an overwrought paragraph: “The very idea that he had every right to live out his days enjoying meals, enjoying the occasional breeze, enjoying novels, enjoying conversations despite the atrocities he committed under color of law because, hey, he’s just as human as the thousands he killed is moral idiocy of the highest order.”

        Ah, I don’t have the stomach for that.

        In any case, if you believe that individuals have the right to defend themselves and include deadly force if it comes to that, then it doesn’t seem that strange to me that The State would also claim some right to end the life of another under very, very specific circumstances.

        We see cops do it all the time, for example. The fact that it sometimes happens to an Eichmann strikes me as service to something approaching justice far more than the argument that true justice would involve putting him in a room with a bed and a toilet and a lightbulb that he cannot turn off and leaving him in this room until his liver fails (and, what the hell, looking the other way if some of the other inmates feel like raping him from time to time).Report

      • NewDealer in reply to Alan Scott says:


        Nazi War Criminals were generally kept under strict Solitary Confinement if they were not given the death penalty. One of the theories about Rudolph Hess committing suicide is that the warden of Spandau would not ease up the visitation rules governing his prison sentence.

        But in general when you get to the War Crime issue, my stance against the Death Penalty falters. I have a hard time being outraged about the death sentences given at Nuremberg or to Eichmann.Report

      • Jaybird in reply to Alan Scott says:

        And Nazi War Criminals are the perfect “BUT WHAT ABOUT?” examples for the Death Penalty argument. You just need one example to get to “we’ve established that; now we’re haggling.”

        There are a handful of examples that are more recent (and a handful that are more partisan). Richard Ramirez (aka “The Night Stalker”), BTK, Dahmer… (and don’t forget Anwar al-Awlaki!).

        The problem comes when you have to balance ideas of justice, with possible ideas of justice, with such things as democratic ideas of justice, and the fact that there are new people who pop up every few years that would have been better off had they been hit by a bus a week before we ever heard of them.Report

      • George Turner in reply to Alan Scott says:

        Ironically, the modern West’s objections to the death penalty arose to protect Nazi war criminals from execution.Report

      • Chris in reply to Alan Scott says:

        Is there a method to ensure that we only execute Eichmanns and BTKs? Is there some way to say, “People who have achieved this level of destructiveness, of society, of our culture, of humanity itself, and for whom we have absolutely no doubt nor any possibility of doubt that they are, in fact, the willful cause of that destructiveness can be put to death, but no one else,” such that in so structuring the law and procedures no innocent person shall ever be put to death, and no one who has not reached that level of destructiveness shall either? Or are we just willing to accept that 1, 2, 10, however many innocent people, or people who may not have reached that level of destructiveness, will be put to death in order to ensure that when an Eichmann or BTK comes along, we get to kill them?Report

      • “But in general when you get to the War Crime issue, my stance against the Death Penalty falters. I have a hard time being outraged about the death sentences given at Nuremberg or to Eichmann.”

        I have a hard time being outraged, too, but I still oppose it.Report

      • Jaybird in reply to Alan Scott says:

        Is there a method to ensure that we only execute Eichmanns and BTKs?

        Now, again, I’m someone who opposes the Death Penalty but it’s mostly due to such things as “reasonable doubt” and “the amount of trust I have in The State”. When it comes to moral arguments, I have as much sympathy for the arguments for as the arguments against.

        In any case, when it comes to only executing Eichmanns and BTKs, I’m looking at it from the perspective of someone who sees the police as executing people fairly regularly and so the framing of the question is “should we kill Eichmanns and BTKs in addition to those other folks or not?”Report

      • Chris in reply to Alan Scott says:

        If only the death penalty were limited to cases in which an individual is currently threatening bodily harm to another to the point of death or serious disfigurement. (If only police killings were so limited.)Report

  4. Jaybird says:

    My problems with the Death Penalty have never been of the form “but The State shouldn’t do that” or “we as a people shouldn’t kill people” because, sadly, there are a non-zero number of examples of folks out there that, sadly, needed killin’.

    Just as the abortion debate tends to gravitate towards “but what about the, um… rape victim! Who is 13! Raped by a relative! And she’ll die if she carries the baby to term! And she’s in a wheelchair! And the wheelchair is broken!” examples that ask “are you saying that this person should not have access to abortion?”

    It’s easy, far too easy, to come up with examples in support of the death penalty.

    Now, if you want to start discussing whether we should pass legislation to start limiting the number of these procedures that we carry out, that might be a discussion worth having. It’s downright gruesome to think that the death penalty has been applied to people who were innocent but got caught up in a web of prosecutorial discretion during a time where it was more important to arrest *SOMEBODY* than to arrest whomever was actually committing crimes… but even if only the most extreme examples of people who we know, beyond the shadow of a doubt, committed heinous crimes, we will still have such things as the death penalty applied to Oscar Grant.

    The death penalty is applied far, far more often via police officer than via the needle. It seems to me that *THAT* is where we can mitigate the most problems at this point.Report

    • Art Deco in reply to Jaybird says:

      The death penalty is applied far, far more often via police officer than via the needle. It seems to me that *THAT* is where we can mitigate the most problems at this point.

      If I am not mistaken, non-justiciable homicides by police officers usually number about 150 or so per year. The number of executions since 2001 has averaged about 52 per year. Is a ratio of 3:1 “far, far” more often? I am not sure why you figure we can ‘mitigate’ the former ‘problem’. Why is it one would fancy police were behaving unjustifiably in a systematic way.Report

    • Art Deco in reply to Jaybird says:

      Just to point out, I think it was the Bureau of Justice Statistics who released some numbers years ago on the share of instances of homicide wherein there were multiple victims. IIRC, the shares were something along these lines:

      4.4% had multiple victims
      0.75% had more than two victims
      0.15% had more than three victims
      0.05% had more than four victims

      Serial killers are a great deal less common than was the case ca. 1975, but police still identify about 30 per year. IIRC, the definition of same is a set of more than three homicides in a series.

      I believe police are able to clear about 8,500 homicide cases a year. If the solubility does not co-vary with the number of victims, that amounts to over 60 resolved cases with 3, 4, or 5 victims.Report

      • Art Deco in reply to Art Deco says:

        Excuse me, about 30 serial killers per decade are identified.Report

      • George Turner in reply to Art Deco says:

        The FBI definition of serial killer is flawed, or at least it used to be, because it was biased against women. Women achieve higher kill scores than men but don’t do it by traveling around picking up victims, but generally by luring them in to a property they control. The pile of bodies ends up being like John Wayne Gacy’s, but the victims weren’t abducted from all over a wide area.

        As for why we reinstituted the death penalty after finding it unconstitutional, just Google “Richard Speck”. It wasn’t the unbelievably heinous nature of his crime, it was that he loved prison and thought it was the best thing that ever happened to him. As one of his guards said, if there was a mass break-out, Richard Speck would be the only prisoner who wouldn’t try to escape.Report

      • Rod Engelsman in reply to Art Deco says:

        And on the other hand, we have the case of Gary Gilmour who practically begged to be executed. By firing squad, no less.

        That’s the problem with retributive theories of justice. What do you do about masochists and suicidals?Report

  5. J@m3z Aitch says:

    Good post, Mike. It mirrors my thoughts exactly, so it must be good.

    But how could you be so cruel as to quote McMegan that way? Now her reflexive haters here will find their knees jerking and…well, damn, they’ll have to suffer the indignity if agreeing with her for once. You’re a hard hard man, Mine Dwyer. 😉Report

    • Mike Schilling in reply to J@m3z Aitch says:

      It’s a perfect McMegan quote,

      1. Stating the blindingly obvious as if she were instructing her intellectual inferiors.
      2. Reducing everything to monetary considerations.

      So I can agree with her and disdain her at the same time.Report

      • Glyph in reply to Mike Schilling says:

        RE: 2, you do realize she is saying that as an anticipatory rebuttal to people who will point out that every single prisoner (even those who are 100% guilty) likely has an incentive to request DNA testing (on the tiny possibility of a Hail Mary miracle acquittal), and widespread retroactive testing will have non-zero costs to the legal system in time and money?

        That is, she is more accurately preemptively dismissing a monetary argument *against* widespread DNA testing for the purposes of overturning wrongful convictions, rather than reducing to a monetary argument *for* it?

        If you read the whole quote it’s quite clear what she’s saying, and why she’s saying it, but you still say “I agree with her…but I don’t like the WAY she’s saying it!”?

        She really does make people crazy.Report

      • Mike Schilling in reply to Mike Schilling says:

        She can’t help being McMegan everywhere she goes. Even when she likes rainbows, she’ll have to explain very seriously that it’s because they’re pretty and that AGW believers don’t care about them.Report

      • J@m3z Aitch in reply to Mike Schilling says:

        Blindingly obvious to you and me, maybe, but obviously lots of other people don’t agree.* Even in this thread.

        But thanks for taking my tongue-in-cheek comment and proving, sadly, that it wasn’t just a cheap snark..
        *I think this is one of the general problems in political debate. We claim X is blindingly obvious, so then anyone who disagrees must be either incredibly stupid or intentionally false. So we pat ouselves on the back for our superiority, smugly disdain the other, and neither listen nor learn nor figure out how to communicate and possibly persuade others.Report

      • Mike Schilling in reply to Mike Schilling says:

        Is it a problem if I find Thomas Friedman irritating too, or is it only libertarians I have no right to an opinion about?Report

      • Russell M in reply to Mike Schilling says:


        finding friedman irritating is the norm outside of his cocktail set.

        sadly thats the group that keeps paying him to “write” about taxi drivers and olive trees.Report

      • J@m3z Aitch in reply to Mike Schilling says:

        Right, Mike. My criticism of your opinion is an attempt to deprive you of the right to have an opinion. (rolls eyes)

        I’m used to Fox News type conservatives crying that their freedom of speech is being violated whenever someone criticizes something they’ve said, but it’s a rarity in my experience to hear this line of “logic” coming from a liberal.

        Should I whine about not having a right to an opinion about people who can’t stand McArdle? Would that advance the debate?Report

      • I’m used to Fox News type conservatives crying that their freedom of speech is being violated whenever someone criticizes something they’ve said,

        Who said that?Report

      • greginak in reply to Mike Schilling says:

        Art- Sarah Palin, Michele Bachman, Glenn Beck…just off the top of my head.Report

      • J@m3z Aitch in reply to Mike Schilling says:

        Art Deco,

        Here’s one example. Link limits in comments make me hesitate to list more, but I will in subsequent comments if necessary. But trust me, it’s a thing. A hilarious thing that gives liberals a vast amount of joy–an answer to their Voltaire’s prayer.Report

      • Mike Schilling in reply to Mike Schilling says:

        Of course I didn’t mean”no right” colloquially, to mean “would that bother you too?” I consider this subthread a serious Constitutional issue.Report

      • J@m3z Aitch in reply to Mike Schilling says:

        Mike, I seriously don’t give a shit about your opinion of McArdle–who I consider wholly middle of the road in terms of quality of thought and writing–other than that I’m amused at how tightly wadded some people’s panties become upon hearing her name. Call it McArdle Derangement Syndrome perhaps. I’m sure I suffer something of the sort whenever I hear Friedman’s name mentioned. He takes middlebrow to new…um, I gues heights isn’t quite appropriate…

        But the fact that you took an openly to tongue-in-cheek comment and responded so defensively, well, that kind of demonstrates exactly what I was joking about. And now we have this utterly stupid and pointless subthread.

        Some inner voice told me the McMegan joke would lead to suchlike, but, no, I wouldn’t listen.Report

      • Mike Schilling in reply to Mike Schilling says:

        Yeah, I couldn’t have been partially tongue-in-cheek too. I never do that.Report

      • J@m3z Aitch in reply to Mike Schilling says:

        Your talent is one-liners, dude.* I’m not the only one who took you seriously.
        *My comedic talent is immeasurable…which is to say, infinitesimal, which is why I have to resort to emoticons to keep from being taken seriously. But it seems I may be so unfunny that even that doesn’t work. Or maybe it’s just that mental illnesses, like schizophrenia or McArdle Derangement Syndrome, are just too serious to joke about (Smiley Emoticon!!).Report

      • Aitch, that’s a Huffington Post paraphrase of what Sarah Palin said. That is not what she said (and having dealt with reporters in the past, I am not sure I would trust them even if it were a direct quotation).Report

      • Actually, it’s a direct quote originally reported by ABC News, which HuffPo credited:

        :”If [the media] convince enough voters that that is negative campaigning, for me to call Barack Obama out on his associations,” Palin told host Chris Plante, “then I don’t know what the future of our country would be in terms of First Amendment rights and our ability to ask questions without fear of attacks by the mainstream media.”

        That doesn’t look like a paraphrase to me.Report

      • The direct quotation they did offer is as follows:

        “If [the media] convince enough voters that that is negative campaigning, for me to call Barack Obama out on his associations,” Palin told host Chris Plante, “then I don’t know what the future of our country would be in terms of First Amendment rights and our ability to ask questions without fear of attacks by the mainstream media.”

        She is referring here to how the 1st Amendment would be understood given a particular set of cultural norms. That is to say, the culture begets legal changes. See that country to our north. Given that our appellate judiciary are willing to say with a straight face that the Constitution prevents state legislatures from making it a criminal offense to soak an unborn child in caustic brine, the actual language of the Constitution constitutes no controlling legal authority. Your “1st Amendment Rights” will take on the color of the attitudes of the elite bar. Which will be a threat to most of us.

        On a related matter, she, as a working politician, is referring to standards and practices which make for a democratic culture, and that is people arguing back and forth, not people who have some residual claim to being referees setting phony limits to discussion.Report

      • J@m3z Aitch in reply to Mike Schilling says:

        Thank you, Mark. This on top of your previous set of links make it unnecessary for me to respond directly. I will only clarify that my comment was limited to a particular type of conservative, not conservatives in general.Report

      • Mark Thompson, why do you think she added the phrase “convince enough voters”? When you “convince enough voters”, public resistance to asinine behavior by officialdom dissipates.

        It may have gone over your head, but the harrassment of dissidents on college campuses has been a public issue for nearly 25 years. It often does not implicate 1st Amendment rights directly (as many campuses are private), but it does expose how academics and associated apparatchiks understand the public square and why we have public discussion and what anyone’s standing is in public discussion. It exposes what their sensibilities are and why they should properly have very little influence on life outside of college campuses. Now, what distinguishes the elite bar? A great deal of time on campuses and a willingness to grant the faculty and the apparat immunities no one else receives.Report

      • Even if I would otherwise be inclined to give Palin your charitable reading with respect to her reference to the First Amendment (and I’m not), the rest of her sentence is damning enough on its own. As you say, she is a politician. Well, a politician insisting that a politician needs to be able “to ask questions without fear of attacks by the mainstream media” is a politician that is questioning whether the “mainstream media” should have a role in criticizing politicians.

        You’ve also ignored Palin’s history of making complaints that are even less ambiguous about her belief that conservatives have a First Amendment right to be free from criticism, two more of which I linked above.Report

      • Thank you, Mark. This on top of your previous set of links make it unnecessary for me to respond directly. I will only clarify that my comment was limited to a particular type of conservative, not conservatives in general.

        The links are to some shnook who signs him self Ken White complaining about other people most of whose remarks are about the neuralgic way certain topics are discussed in the public square. How does that support your contention?Report

      • There is no reason to be particularly ‘charitable’ to Gov. Palin or most of the people quoted by “Ken White”. You have a desire to accuse them of confounding legal rights with complaints about the political culture. That is an interpretation you impose on them, not something manifest in their verbiage.Report

      • Michelle in reply to Mike Schilling says:

        Thank you, Art Deco, for your side-splitting translation of Palinese. If only she were half that bright she might understand the meaning you attribute to her.Report

      • J@m3z Aitch in reply to Mike Schilling says:


        Apparently you’re unfamiliar with the libertarian-leaning popehat blog. That’s no sin in itself, but I encourage you to not be turned off by its anti-Palin stance and check it out. It’s a great legal blog.Report

      • That “shnook” happens to be a former federal prosecutor who has since become one of the nation’s foremost First Amendment lawyers. He also happened to represent Patterico in the suit filed against Patterico by Nadia Naffe. Also, he’s just about the FIRE’s most vocal supporter. So there’s that.

        And that the quotes are partially complaints about the way things are discussed in the public sphere dodges the question entirely. One who insists that the act of boycotting or calling someone homophobic is “fascist” is someone who is complaining that their rights are somehow being violated by those acts.

        Similarly, one who complains that

        “Our “perfect” world was replaced many moons ago by the defective reality in which we are all forced to reside – and one of the most blatant areas to view the erosion of perfection is seen in the lack of ability many in this great country have to speak freely without fear of chastisement.

        is one who insists that there is a right “to speak freely without fear of chastisement.”

        And one who writes

        What opponents of normalization fear most, I think, is not that gay marriage will damage the institution of marriage, but that their own rights and abilities to stand up against normalization will be further infringed.

        because ” many gay advocates want to paint the opposition as motivated only by ignorance, bigotry and fear.”

        Is someone who is claiming that there is a right not to be painted as motivated only by ignorance, bigotry and fear.

        And of course the totally distorted view of free speech suggested by writing that calling someone a racist “deliberately undermines free speech” needs no explanation.

        That of course says nothing about Michael Savage’s actual lawsuit that he filed because of his butthurt over being criticized.Report

      • Mike Schilling in reply to Mike Schilling says:

        It’s true that I thought you guys were a smarter audience. I’m very disappointed in both of you.Report

      • Stillwater in reply to Mike Schilling says:

        It’s true that I thought you guys were a smarter audience. I’m very disappointed in both of you.

        I’d bet Megan has the same disappointment about her audience. Certainly about her critics.Report

      • Glyph in reply to Mike Schilling says:

        Wait, am I included in that “both of you”? Because if I am, then I am offended; and if not, then I feel left out (and therefore, offended). I haven’t been so insulted since the infamous Otis Spunkmeyer Supermarket Sample Incident. 😉Report

      • Shazbot3 in reply to Mike Schilling says:

        “McCardle Derangement Syndrome”

        Do libertarians have Michael Bloomberg Derangement Syndrome?

        By this logic, I have Ed Schultz Derangement Syndrome and David Brooks Derangement Syndrome.

        Many here would be diagnosed with Shazbot3 Derangement Syndrome.Report

      • @jm3z-aitch

        “I seriously don’t give a shit about your opinion of McArdle–who I consider wholly middle of the road in terms of quality of thought and writing–other than that I’m amused at how tightly wadded some people’s panties become upon hearing her name. ”

        Long before I ever read McCardle, I heard people say these horrible things about her, as if she were a literate Anne Coulter. But when I actually started reading her articles, I cam to pretty much the same conclusion you do.Report

      • J@m3z Aitch in reply to Mike Schilling says:

        Shaz, if not Bloomberg, someone equally heinous. 😉Report

  6. Michael Cain says:

    At least in my state, there is little doubt that the death penalty costs the state considerable money for little benefit beyond providing a small set of people with vengeance — and even the vengeance thing is a maybe, often 10 or 20 years down the road. Given the current rules that require much more prep, much longer trials, and a much longer appeals process when the death penalty is in play, life without parole is simply a cheaper punishment for the state to impose. And with the conditions in most state prisons for persons convicted of violent crimes, I’m not so sure but what LWOP isn’t a heavier punishment.Report

    • Michelle in reply to Michael Cain says:

      This is my thought about life in prison without parole.Report

    • Jaybird in reply to Michael Cain says:

      I’m not so sure but what LWOP isn’t a heavier punishment.

      Hrm… this brings me to another issue… the death penalty is one of the few penalties that can inspire large numbers of people to do research, provide free legal support, and otherwise get the pieces of evidence into the record that will result in exoneration and innocent people going free.

      Would the proposed “heavier punishment” do that?

      I’m guessing “no”. (To pull an example out of the air, has anyone seen a “Free Mumia” sign since he was LWOPed? I haven’t, and I’m one of those who looks for them.)

      But I’m one of those crazy people who would keep the death penalty and get rid of prison.Report

      • Chris in reply to Jaybird says:

        It would be a better world if ever sentence over a certain size triggered an automatic independent review process.Report

      • Michelle in reply to Jaybird says:

        And what would you have in place of prison?Report

      • Mike Schilling in reply to Jaybird says:

        Likewise, if we raised the top marginal tax rate to 90%, we’d have more serious conversations about the size of government. I’m willing to go there.Report

      • Jaybird in reply to Jaybird says:

        And what would you have in place of prison?

        At this point in time, I’m almost willing to say that “nothing at all would be better than putting people in a rape panopticon”. Perhaps if the only people we were likely to imprison were violent and antisocial felons that would be one thing… but they’re not. We find that there are sooo many people on death row who don’t belong there because they are innocent. What about the people who actually committed the crimes in question? Is the hope that we got them on something else entirely?

        I don’t know how likely it is that the regular run-of-the-mill prisoners are likely to be innocent compared to the folks on death row (I’m willing to bet that the folks on death row were in situations where there was political pressure on the prosecutor) so maybe there aren’t just as many innocent people in non-death row prison as on death row…

        But if there are as many innocent people in prison (proportionately) as on death row?

        Why in the hell are we perpetuating this? And why in the hell are we bragging about prison being a harsher punishment than the death penalty?Report

      • Jaybird in reply to Jaybird says:

        Likewise, if we raised the top marginal tax rate to 90%, we’d have more serious conversations about the size of government. I’m willing to go there.

        More serious conversations from whom?

        I wouldn’t be affected by this hike, for example.

        Our society has too many things already where we are having other people pay the cost for the stuff that we are told benefits us.Report

      • Michelle in reply to Jaybird says:

        Thanks Jaybird. I appreciate the reply and am inclined to believe that we imprison far too many people, particularly as so many are there on non-violent drug charges. The War on Drugs has been a boon for the Prison Industry.Report

      • NewDealer in reply to Jaybird says:


        In California (and I think many other states), every convicted defendant receives representation on one appeal “as of right”. For anything else, they are on their own.Report

      • NewDealer in reply to Jaybird says:

        Jaybird and Michelle,

        Perhaps right now Prison is the least worst bad option for crimes.

        I agree that the drug war is a boom for prison industry but I’m not sure that getting rid of the drug war would substantially reduce our prison population. There could be plenty of burglars and such who get caught in the place of drug offenders. Plus there are plenty of people who commit property crimes to feed their drug habits. Junkies in SF favor taking copper wiring from places because it is easy to sell for scrap and a generally unregulated market.

        Maybe we can use house arrest and electronic monitoring more?Report

      • Stillwater in reply to Jaybird says:

        Jaybird, I’m not sure you even need to invoke the “% innocent” argument to make your point. There is something barbaric about the entire concept of imprisonment, so barbaric that confining people under those circumstances – or any circumstances – ought to require meeting a very heavy burden of justification. Fact is, tho, that burden doesn’t even exist and incarceration is the default response to “crime”. The whole thing is sorta sickening.Report

      • Glyph in reply to Jaybird says:

        @newdealer – I’ve long wondered why electronic monitoring/house arrest isn’t in wider use, now that the tech is cheap-ish and reliable and miniaturized.

        And this was before the NSA started engineer away the need for the subject to utilize any special monitoring equipment at all!Report

      • NewDealer in reply to Jaybird says:


        I think this is one of those areas where some members of this forum hold views that are way in the minority. If you want to change how we treat criminal justice, you are going to need to change a lot of minds.

        Most people (liberals, conservatives, and moderates) probably believe in prison as a form of punishment for committing a crime. Liberals might argue for more rehabilitation and fewer people in prison but that does not mean that they would give up on the enterprise entirely. It is certainly preferable to torture and corporal punishment.

        I think the main issues of house arrest and electronic monitoring are issues of fairness. Would it be something given to the rich more than the poor? What do you do for people who commit crimes in their homes like domestic or child abuse and suppose the criminal is the houseowner/breadwinner for the family?

        In general, I think many people would consider house arrest and electronic monitoring as getting off too easy especially for violent crimes and property crimes. People might accept it more for drug-users and addicts.

        There is also the fact that no politician wants to be seen as supporting house arrest and electronic monitoring because there will (and I have seen) stories about parolees breaking off their electronic monitor and then going and committing a shocking and notorious crimes usually a violent/sex crime.

        Criminal Justice and law is hard because they are inherently emotional issues. Everyone has a visceral reaction to a crime story. Very few people have an emotional reaction to a breach of contract case unless they are one of the litigants or a loved one of one of the litigants.

        Ariel Castro swore that he wasn’t a monster yesterday but he was “sick”. This is a scene right of movie. In fact it is a scene from Fritz Lang’s M when Peter Lorre’s child murderer tells the court of Criminals that he lacks the willpower to not act but burglars and other property criminals do. Hence, Peter Lorre is blame worthy. Perhaps Ariel Castro did suffer from a real mental illness but I doubt most people care because he put three women through torture for a decade. Just like most people do not care about the mental illness histories of two people in NYC who pushed two innocent men to their deaths on subways.

        I don’t think it is great that we use prison as a way of keeping the mentally ill out of site and out of mind but no one has been able to come up with a good response for how society should act when a mentally ill person does commit a mass murder like Newton or the Aurora shooting or an Ariel Castro type of crime. Maybe there is no adequate answer which is also troubling.Report

      • Glyph in reply to Jaybird says:

        ND – For violent crimes, you pretty much have to physically isolate/control them 24/7. So some number of people are still going to end up in rooms with bars on the doors and windows.

        But for property crimes, I’d think simply monitoring/circumscribing their location electronically should be enough (since theoretically they shouldn’t be allowed to go most places where they could steal stuff; and if something does get stolen, we’ll know they were there).

        To LeeEsq’s point below, I think we’d want as many of them to work as we could, so they’d be allowed to travel to/from work; we could also either allow an hour a week at the grocery store, or just ship them food, TP, etc. (with Amazon, I am practically under house arrest now).Report

      • NewDealer in reply to Jaybird says:


        How about the discomfort issue especially for white-collar criminals.

        Suppose a doctor is guilty and convicted of medicaid fraud and tax evasion at about four million dollars worth of damage respectively. I think would be angry if he got house arrest and served it in his nice and comfortable house or fancy apartment.

        Now imagine if Bernie Madoff was given house arrest or any other white-collar criminal. Is there a level at which a white-collar and purely economic crime becomes so severe that it deserves less comfortable digs?

        The doctor and Bernie Madoff end up serving in minimum security prisons that are called Club Feb as nicknames. These places are much more comfortable than maximum security prisons but I think they represent something important to many people and that is the symbolism of less comfort because said persons did break the law.

        Maybe this is wrong and/or bad policy. Like you I am inclined towards more house arrest and electronic monitoring. I would also like to be wrong about my idea on the outrage of house arrest but part of me suspects that the group holds a minority view here.Report

      • Stillwater in reply to Jaybird says:

        It is certainly preferable to torture and corporal punishment.

        In general, I think many people would consider house arrest and electronic monitoring as getting off too easy especially for violent crimes and property crimes. People might accept it more for drug-users and addicts./i>

        Notice some of the equations in play here. One is that the consequences of committing a crime need to be commensurate with the crime itself. Lex talionis! It seems to me that you’re making a political argument here – that lots of people think this way, so therefore it’s justified! – rather than a justificatory one.

        Another is that violating someones property rights is sufficient to deprive that person of the liberty. I’m not sure how that equation is supposed to go, so I suppose that the argument is ultimately justified on pragmatic rather than grounds.

        A third is torture or corporal punishment aren’t in fact different types of punishment than imprisonment as the concept is understood by most people. They’re all a version (in at least one sense) of retributive vengeance, it seems to me, rather than retributive justice. And they’re lightyears away from restorative justice.

        The whole concept of imprisonment – and punishment generally – is something I’d like to see more discussion about, myself. Personally speaking here, in most (not all!) cases, imprisonment cannot be justified given the alternatives as well as a prima facie right of individuals to retain their liberty except (it seems to me!) in extreme circumstances.

        If imprisonment is the best response to crime we can implement as a society, then I think that fact reveals something about us as a society, no?Report

      • NewDealer in reply to Jaybird says:


        A few things. I’m going to try and parse out what I wrote vs. your text, some of which was inadvertently given in italics.

        1. The idea that a punishment should equate with a crime is one of the hallmarks of a just society. In theory we consider ourselves more enlightened for not amputating the arms of thieves. Though IIRC, certainty and swiftness are the most important aspects of crime deterrence.

        2. The idea of majority will being right or just is a tricky one and another issue on which I am not sure humanity has ever come with a satisfactory answer to. We are a Democratic Republic but also believe that the minority must be protected from the tyranny of the majority. We have elections and presumably “elections have consequences” for those who lose in the marketplace of ideas. I’ve asked this before but what is the balance between these two tensions? This comes up for more than just criminal justice but in the whole framework of government. When should the minority be tasked with making their viewpoint the majority rather than using the courts to get what they want. This is the constant debate about “judicial activism.” You could also make arguments about when using the judicial process over the legislative process helps change public opinion or not.

        3. I am not arguing that the majority is right here but merely trying to hypothesize about the psychology and thoughts on why we still have prisons. Perhaps it is more moral and just to punish the Bernie Madoffs of the world to house arrest and electronic monitoring (presumably he would do community service as well) but morality and justness don’t get enacted because they are moral and just. In a Democratic Republic, you need to convince the majority that your position is moral and just and right. This is the nature of having free elections to a certain extent.

        4. What is good policy, often seems to be unpopular or hard to get people behind and might be counter-intuitive fairly often. Make of this what you will. I’ve scene or read about hundreds of white papers arguing that X (whatever X is) is bad policy from all political ideologies and non-partisan thought as well.Report

      • Stillwater in reply to Jaybird says:

        The italics were bungled. The first to graphs are quotes from an earlier comment of yours, the rest is my own inelegant prose.

        I think there’s a bit of a disconnect between how you and I view these issues. For example, you wrote that “The idea that a punishment should equate with a crime is one of the hallmarks of a just society.” There are a lot of ways to understand that sentence – as a platitude, a vacuity, a projection, an objective statement of fact, something philosophically justifiable. The concept of a just society isn’t determined by a merely historical analysis. It’s determined by argument given reasonable criteria, yes? As far as I know, there is no sound argument establishing that a just society must punish in equal measure to the crime committed. If anything, argument and practice seem to demonstrate the opposite.

        But I’m not so much concerned with the concept of what constitutes an equal (or just) punishment in this thread as I am with the concept that violating the law is sufficient for incarceration by the state. What’s the argument justifying that conclusion? That strikes me as one of the most extreme, seemingly egregious uses of state power I can think of, yet its legitimacy is rarely questioned. I mean, incarceration? Depriving an individual of their freedom seems like it ought to require meeting a really heavy burden of justification. It can be met, I think, in certain cases. But not as a matter of course.

        A while ago when I was talking about this with Jaybird he mentioned that imprisonment sometimes seems more harsh than “the lash”. Even when punishment is justified. I can’t say I disagree, given the nature of prisons and imprisonment and the psychological motivations which appear to justify the whole enterprise.Report

      • Jaybird in reply to Jaybird says:

        One of my justifications for the death penalty is that there are circumstances, in theory, that I could see saying “yeah, I needed to shoot that guy”.

        I cannot possibly think of a single situation where I might say “yeah, I needed to keep that guy in the laundry room for 10 years.”Report

      • NewDealer in reply to Jaybird says:


        I guess this is where you and Jaybird get too libertarian for me.

        I agree with you that we put people in jail for things that they should not be put in jail for including but not limited to drug offenses. I agree that sentences are often too long and society does not really benefit from keeping most people in jail for life especially once they reach old age. I question the usefulness and justness of sex registration lists (especially when they are overly broad and can sometimes include public urination). We should also focus more on treating prisoners humanly.

        But when you talk about the State hear in a way that makes it sound like we are acting contrary to the will of the majority or as some kind of separate and alien entity, that confuses me. I see the state in a Democratic Republic as being representative of the people’s will (at least ideally, there are often problems in execution). It isn’t some conspiracy theory. It seems to me that people talk the State or the Government as being a monolithic and separate entity when the majority disagrees with them. It is a bit of a neat cognitive trick and everyone does it. Liberals, Conservatives, Libertarians.

        We get into this discussion when talking about the drug war. People stamp up and down but no one wants to address me head on when public opinion on the matter has only changed very recently. The Drug War might often or always be bad policy but often a democracy seems to be about majority rule whether a policy is good, bad, or neutral. Libertarians often seem to talk from a point of higher philosophical loftiness than Democratic and Republican types but you can’t ignore the framework of Democracy. You have to convince the majority that your position is right and these things take a frustrating amount of time often.

        I’m not sure that bringing back the lash is good policy. Corporal punishment can lead to scar marks and other forms of permanent physical damage. A wrongfully convicted person can be give monetary compensation for their time in prison. It might not be adequate as a remedy but you can’t make scare marks go away.

        We let the state convict people because I think we decided it curtails revenge and limits century long blood feuds. It is supposed to be steps away from an eye for an eye.

        I think our criminal justice system requires vastly overhauling and reform. We need to fund more Public Defenders and find a way to depolicitize the District Attorney office. We should incarcerate less, I agree with you on that but I think you and Jaybird are dealing a bit too much with hypothetical abstractions.Report

      • NewDealer in reply to Jaybird says:


        Violating the law is not sufficient grounds for incarceration.

        There are a whole range of laws that do not involve incarceration and this is civil law. This can be a tort, a breach of contract, a property dispute over an easement, etc. These are often brought by private parties and involve the payment of monetary damages. However you still need the power of the state to enforce these judgments.

        For example, Pete sues Danger Corp because he suffered serious damages when he used their defectively designed product. A jury finds for Paul after hearing all the evidence. Danger Corp decides to be defiant and not pay. Paul can now avail himself on the Sheriff’s office and get liens on Danger Corp’s property. His lawyers can also write to people who owe Danger Corp money and say “We have a lien/judgment against Danger Corp. pay us instead.”

        Do you think the government should help Paul obtain his damages from Danger Corp? Without an enforcement mechanism, the entire civil justice system is meaningless.

        We decided on civil justice because we don’t want people to result to “self-help”. Self-help is dangerous and messy. Landlords are not allowed to self-evict tenants. We make them go through the Sheriff and the courts to make sure they have a valid reason to evict.

        Likewise, there are things that are against the law as criminal matters but don’t result in jail time. These are infractions. We also have Community Justice Centers for minor criminal issues.

        What you and Jaybird seem to be arguing against is the entire concept of criminal law.Report

      • NewDealer in reply to Jaybird says:


        Ariel Castro kept three women in his basement for ten years.

        How should society deal with Ariel Castro?

        Prison for life seems to be a good match in those cases.

        I find your arguments to be kind of silly. Of course, you don’t have any justifications for keeping someone in your laundry room for 10 years. Neither did Ariel Castro.

        What is a punishment that:

        1. Is not death?, And

        2. Will prevent Ariel Castro from kidnapping three women and torturing them for ten years?

        It seems that a prison term is a good option here.Report

      • Jaybird in reply to Jaybird says:

        So your desired punishment is to keep him in a room until he dies but, you are quick to point out, *NOT* kill him.

        I don’t understand why death is not on the table, here.Report

    • “there is little doubt that the death penalty costs the state considerable money for little benefit beyond providing a small set of people with vengeance — and even the vengeance thing is a maybe, often 10 or 20 years down the road”

      When these facts are used to argue against the death penalty (“it costs more to kill someone than to give them life in prison”), I feel uneasy. The reason it costs so much and take so long is that we have implemented safeguards. One solution is to abolish the death penalty. Another solution is to do away with the safeguards and make it easier for the state to kill someone.Report

  7. Chris says:

    Overturning cases with new evidence and new technology is yet more evidence that putting an absolute end to due process, via death, is a bad idea.

    But even if I didn’t have philosophical/ideological issues with the death penalty, my trust in the police and the criminal justice system are simply not sufficient for me to agree that they should have the power to kill people who aren’t immediately threatening bodily harm to anyone. Hell, I’m not even sure I like most police being armed, so…Report

  8. I pretty much went through exactly this same evolution, albeit several years earlier. However, the issue of wrongful convictions is what makes the issue something I’m passionate about rather than just another thing on the list of things I think the State shouldn’t be doing.

    With that in mind, it occurs to me that my concern about wrongful convictions would be dramatically alleviated if the death penalty were limited to instances where the defendant is convicted of multiple occurrences of death-penalty-level offenses. In this scenario, “multiple occurrences” would mean “acts separated by a time span of at least X hours,” without being tried on the first occurrence in the interim. Also, there would need to be at least two separate trials (ie, the prosecution could not charge both of an alleged two-time murderer’s homicides in the same trial, but could divide charges of three or more homicides however it wished amongst two trials).

    The odds of the same person getting wrongfully accused and convicted of multiple and separate murders in each of two separate jury trials are astronomical, almost no matter how flawed our criminal justice system is (and it’s pretty fishin’ flawed). If the death penalty were limited in this manner, I could potentially even be convinced to tolerate a significantly shortened appeals process. Of course, the number of people on death row would shrink to a miniscule amount if we did this, effectively limiting its application to only the most truly abhorrent, headline grabbing spree killers, particularly violent organized criminals, and members of the New England Patriots.

    Most importantly, it would largely ensure that the standard for use of the death penalty is “beyond any doubt” rather than “beyond reasonable doubt.”Report

    • Mark,

      “Most importantly, it would largely ensure that the standard for use of the death penalty is “beyond any doubt” rather than “beyond reasonable doubt.””

      One reason this formulation worries me is that it might lead the state to seek “only” life imprisonment, so that conceivably, people can be unjustly convicted and sent to life in prison, and not have their sentences/convictions reviewed, but a very small number would be, in a perverse way, “privileged” to have been sentenced to something requiring a higher standard.

      I don’t deny that death is final in a way that life in prison is not. (I am leaving aside here questions of what life is like in prison for lifers. I imagine that any serious exploration would show it to be inhumane, at least by my standards.) In part, I think my concern is a rather base concern about resources. A small number of people receive more attention than other people who are inappropriately convicted (either they are innocent or due process was flagrantly denied). I fear that “no doubt” creates a super-standard that while good (it effectively makes it harder to implement the death penalty), feeds complacency about how we punish those accused/convicted of violating our laws.Report

  9. Tim Kowal says:

    I still can’t tell if the objection here is normative or consequential — i.e., that the death penalty is wrong in all cases, or wrong where imposed against the wrongly convicted. No one disagrees with the latter, of course. The real debate, then, is whether the death penalty is merely permissible or actually required by justice. Because if it’s merely permissible, then given the option, we should always err on the side of no death penalty — i.e., executing a convict would work no justice even if he was rightly convicted, but would work a grave injustice if his conviction was mistaken. But if capital punishment is just as to murderers, etc., then the argument about uncertainty is much different, as it does not intuitively lead to one making blanket statements like “I’m against the death penalty.”

    I am for the death penalty when it is just and against it when unjust. Advances in technology will help us sort out when it is just. But the central moral question is not affected by technology.Report

    • Mike Schilling in reply to Tim Kowal says:

      It is affected by how seriously the process is taken. If the accused in capital cases aren’t provided the means for an adequate defense, the process is completely immoral.Report

      • Then that casts doubt on all criminal punishment for the same reason.Report

      • Chris in reply to Mike Schilling says:

        Tim, sounds like a good reason to take a serious look at the system, then.Report

      • Not necessarily – with non-death penalty cases, there is always the possibility that errors can be corrected retroactively, and fully compensated for. Practically speaking, this possibility just about never comes to fruition, but it is at least theoretically possible, which makes a significant moral difference in my view; at minimum, the harm of wrongful convictions in such instances can at least be mitigated to some small degree.

        But in a death penalty case, this is simply not possible – once the sentence has been carried out, there is no one to make whole, nor is it possible for the harm to be mitigated.Report

      • Mike Schilling in reply to Mike Schilling says:

        What Mark said. Plus the fact that carelessness in deciding whether to execute someone is far more serious than carelessness in deciding whether to fine them fifty bucks.Report

    • J@m3z Aitch in reply to Tim Kowal says:

      Tim, I have a hard time seeing how the death penalty could be required as a matter of justice, even if it is just in itself. That would require not only that it, and only it, was a just punishment, but that if indeed it was the only just punishment that then mercy is disallowed any role.

      In an age when it seems ever more likely that violent criminals most often do have some mental or cognitive impairment that limits what we would traditionally consider their mens rea, limiting the role of mercy disturbs me.Report

    • BlaiseP in reply to Tim Kowal says:

      You’re locked into a tautology: either the death penalty is just or it is not. The needle and the noose and the electric chair are tools. So are the water board and the cattle prod and every other implement of torture: all justified on the basis of extracting confessions — as good a justice-based argument as any for their existence.

      But are they tools we should allow in the course of justice? Where do we stop? Public crucifixion was once considered just, beheadings, drawing and quartering. The burning of witches — don’t raise your hands and say you don’t approve. Your opinion of the justice of these things is irrelevant. What matters is what the law allows. You approve of the death penalty as a just verdict in one case — who’s to say what’s Cruel and Unusual in crucifying a prisoner thus convicted?

      The death penalty is barbaric. We’re one of the few nations on earth which still allow it. Death by needle, death on the gallows, death by beheading in a public square — it all hides behind the filthy cloak of Justice. When it errs, it’s Very Sorry, to be sure. Advances in technology will not bring the dead back to life nor will they advance the cause of human decency.Report

    • Kyle Cupp in reply to Tim Kowal says:

      My opposition to the death penalty is normative. I see human life as something sacred–something worthy of respect, protection, and care–and it seems to me that the sanctity of human life relates to the life of a person itself, not to a person’s guilt or innocence. If death can be administered justly on the basis of guilt, then human life really isn’t inherently sacred, and if human life really isn’t sacred, then I’m not sure how you have a normative opposition to any manner of killing a person. Opposition to murder, etc, would have to be consequentialist, pragmatic, etc.Report

      • Jaybird in reply to Kyle Cupp says:

        then I’m not sure how you have a normative opposition to any manner of killing a person

        Please clarify for me:
        Are you saying that you don’t understand how someone might think that Eichmann (let’s use him again, why not?) deserved to die while, at the same time, opposing the death of Anne Frank? Normatively, anyway?Report

      • Kyle Cupp in reply to Kyle Cupp says:

        If human life has no inherent value, then what is the basis for a norm against taking human life?Report

      • Jaybird in reply to Kyle Cupp says:

        Why can’t it have inherent value that can be degraded through willful “evil” (for lack of a better word)?Report

      • Kyle Cupp in reply to Kyle Cupp says:

        If the value of life can be degraded by a quality outside of itself, then its value really isn’t inherent, but relative to that outside quality. Guilt and innocence are such qualities: they’re not descriptions of someone’s life, but the state of her will, so to speak, in regards to her actions.Report

      • Jaybird in reply to Kyle Cupp says:

        Then we are, in fact, saying that there is no inherent reason to see Anne Frank as more worthy of a whole life lived than Karl Silberbauer?Report

      • Jaybird in reply to Kyle Cupp says:

        Another question I might be interested to see answered: can an external group of traits ever outweigh an inherent trait?Report

      • J@m3z Aitch in reply to Kyle Cupp says:

        If human life has no inherent value, then what is the basis for a norm against taking human life?

        Pragmatic self-interest. I’d be a lot more nervous in a society without such a norm.

        Being extremely skeptical of the concept of a creator, I don’t think our lives have inherent value in any objective sense. We’re accidents of history, my friend, like the tree I’m sitting under or the poor unfortunate toad I accidentally ran over last night. But our lives have value to us, and a norm against taking human life is more efficient than wearing armor plate whenever I go out. And we evolved as a social species, so we care also about the lives of certain others, family and friends. A norm against taking human life protects us (to some extent) against the pain of losing them.

        This all holds even if there is no transcendent entity in the universe to give our existence any more inherent value than that of a flea.Report

      • Mike Schilling in reply to Kyle Cupp says:

        Israel doesn’t have the death penalty, but made an exception for Eichmann. That’s a system with much to recommend it, particularly compared to the one that executed Cameron Todd Willingham with no credible evidence that a murder had occurred.Report

      • NewDealer in reply to Kyle Cupp says:


        Not quite. There is only one crime in Israel that is punishable by death and that is the Nazi and Nazi Collaborator Law

        Perhaps Eichmann is the only person executed under the law but it was passed a decade before his arrest and trialReport

      • Tim Kowal in reply to Kyle Cupp says:

        Kyle, by that logic, there would be no justification for killing in self-defense: there certainly is no basis for adjudging the aggressor’s life more or less “inherently sacred” than the victim fighting to save his own life, and if we reject the notion that rights, “inherently sacred” by their very nature, can be forfeited by our actions, we are left without a moral basis for any punishment whatsoever. Instead, the justification for killing in self-defense, which is the same justification for the death penalty, is that the aggressor’s conduct forfeited his right to life. This is a perfectly intuitive result, as it follows the same form as all other punishment — commit a fraud, forfeit your right to property in the form of a money judgment; commit theft, forfeit your right to liberty through incarceration. These results are perfectly compatible with “inherently sacred” rights to property, liberty, and life. But unless we are willing to give up the notion of punishment at all, we must be willing to agree (1) that certain acts work a forfeit of those rights, and (2) that we can mete out punishment appropriate to those acts despite the fact we will never have perfect knowledge of the full nature and scope of the acts committed.Report

      • Mike Schilling in reply to Kyle Cupp says:

        Thanks for that info. I’ve heard the the other (no death penalty at all) so often that it should count as an urban legend.Report

  10. Chris says:

    When I was a kid, our parish priest would hand over the homily to a parishioner three times a year: once for a plea for donations for our Christmas food and toy drive, once for a lecture on the evils of abortion (and a plea for money for the cause), and once for a lecture on the evils of capital punishment (and a plea for money for the cause). Growing up Catholic, then, the two were always intertwined. When I left the Church, I no longer saw abortion as a “right to life” issue, but I’ve never ceased to see the death penalty that way, and I’ve always had a difficult time understanding people who did see abortion as a right to life issue but favored the death penalty. Glib dismissals about innocence just don’t answer the Christian, and specifically Catholic justification for either position.Report

  11. Shazbot3 says:

    What about the death penalty for Bin Laden?

    Are you against that too?Report

  12. Shazbot3 says:

    Also, I don’t see any logical contradiction in being staunchly pro-life and pro-capital punishment.

    There will be some cases where we are sure beyond any sane doubt (a stronger category than reasonable doubt) that X murdered Y. You haven’t said why the state shouldn’t kill in those cases, nor have you addressed the argument from lex talionis which forms the backbone of many pro-capital punishment cases. You simply use the rhetorical device of describing CP as state-sanctioned “murder.” By analogy, one could call prison “state-sanctioned slavery” but that wouldn’t be much of an argument against prison as a just punishment in some cases.Report

  13. LeeEsq says:

    Glyph, I think there are some logistical problems to electric monitoring/house arrest. Mainly, if the prisoner rents and can’t work while under house arrest; who pays the rent? How do you get food, toilet paper, and the like to the prisoner? Your presuming that each prisoner will have friends and loved ones that will help take care of these things. Prison allows us to take care of the daily needs of prisoners better than house arrest.Report

    • NewDealer in reply to LeeEsq says:

      Glyph said that they would be allowed to work and go do basic things like grocery shopping. Presumably under time frames. You have to be back by X (though travel does have variables like traffic and break downs).

      And many might be unemployed….Report

  14. My “argument” against the death penalty isn’t much of an argument at all. I start from the proposition that the state should not kill someone it has already neutralized, or who no longer poses an “immediate” threat. Of course, if you accept that premise, being against the death penalty follows almost necessarily (I suppose we could debate what “immediacy” means and whether a convicted serial killer might escape to kill again. And war is kind of tricky in this whole scenario). Therefore, it’s not much of an argument. However, I do suspect some (many? “a lot of”?) people actually accept the premise, or at least *might* accept it.

    I do think many of the other arguments lodged against the death penalty are, by themselves, problematic, but taken together, might be reasons to oppose it even without my (question-begging) premise stated above. If the impact is disparate in race, gender, and economic status, or if there are too many false positives, if it can be shown the penalty is not a deterrent (I actually think it is a deterrent for *some* crimes, but per my premise I don’t like that argument, aut cetera, then those are reasons to oppose it

    Now, I do have some concerns that the movement against the death penalty might be a misallocation of resources against greater evils, But I am against the death penalty for the reason stated above.Report

  15. NotMe says:


    “I am equally outraged by the state-sanctioned murder of a criminal.”

    Hyperbole aside, if the state kills some though the judicial process then it is by definition not murder. It is hard to argue that the death penalty is not a deterrent as we can’t know if the death penalty deters folks, all we know is the times when it doesn’t. For all we know the murder rate might be higher if there was no death penalty and the murder might actually go down if we executed more folks. As for the extra DNA testing, I’m willing to let cons have it if we could execute them the day after it comes back implicating them. As for finding the abortion and the death penalty morally equivalent, it is beyond me how anyone can compare the two.Report

  16. NewDealer says:


    During my first year of law school, I attended a lecture by someone who was wrongfully convicted of murder and spent two or more decades on death row. There are other cases like this. See the work of the Innocence Project.

    Ariel Castro might be clearly guilty. Same with James Holmes. But most other people on death row were not as clearly guilty. Death is off the table to save those people. Also because I don’t believe in the eye for the eye nature of the death penalty.

    You are right about your stance being completely nuts.Report

    • New Dealer,

      I am familiar with the stories of some people who have been on death row in Illinois but who either didn’t do it or whose trials were so unfair that it’s hard to believe their convictions were just. A lot of this is indeed quite shocking, especially the fact that even in the most expeditious cases of resolving wrongful convictions, the persons usually had to serve at least a decade or (in the case of the lecturer you saw) more than a decade.

      I’ve seen an interview by someone wrongfully convicted and sentenced to death, who eventually was released, and he said he was in a sense “lucky” because his death sentence gave him access to a group of people who would argue on his behalf, but that “mere” life imprisonment would not have necessarily inspired those people to help them. (He also pointed out that even though he was released, his record of having been convicted of a felony was not erased, so he still had to disclose that fact when he applied for jobs.)

      All of this gives me pause when it comes to the anti-death penalty movement, even though I support the movement itself and abolition of the death penalty. I realize that just because there are many evils (say, in our justice system), doesn’t mean that we can’t focus on one of them (and arguably the most egregious one). But the whole thing leaves a raw taste.

      Even in Illinois, which recently (last year or 2011) abolished capital punishment, one gets the sense that tough on crime lawmakers are citing the abolition as a concession they have granted to the bleeding heart crowd. So I don’t think we can expect much from them in terms of prison reform or more openness to exonerations (or even steps to ensure fairness of trials).

      None of this is to say I agree with, or even understand, what Jaybird is saying in this thread, and I realize you meant this as a response to him.Report

      • NewDealer in reply to Pierre Corneille says:

        I hear the concerns. I know a few public defenders. I also know some lawyers who do exclusively anti-Death Penalty work.

        My hope is that if the death penalty is abolished, the Innocence Project and similar groups will continue to fight against wrongful convictions based on unfair trial tactics, shoddy police work, etc. There is the reason the left says “the struggle carries on” This is not just “Okay, the death penalty is gone. We are perfect.” I’ve tried to state numerous times in this post that I think the criminal justice system needs reformReport

      • Yes, and I agree with you, although perhaps we base our objections against capital punishment on slightly different premises. I get the suspicion that my rejection is more categorical than yours. (I might be wrong, however. Also, I’ve never been a victim of a violent crime, and no one very close to me has, either, so my own views might change in those circumstances.)

        I also agree with LeeEsq that the Swedish system seems perhaps the most just. I’m not sure, however, how to get from point a to point b in the U.S. context. But perhaps that’s the subject for another thread.Report

    • Jaybird in reply to NewDealer says:

      New Dealer, I am 100% aware that there are innocent people on death row.

      While I am normally a huge fan of “SO SCRAP IT!!! GET RID OF THE ENTIRE FREAKING INSTITUTION!!! TEAR IT ALL DOWN!!!!” arguments, I’m also aware of the argument that the policy is used more often than it ought and restraint on the part of prosecutors (snort) and in the justice system in general (ha!) would reduce the number of innocent people on death row while, at the same time, allowing the worst of the worst of the worst to be put to death.

      You know, instead of being put into a room until they die.Report

      • Rod Engelsman in reply to Jaybird says:

        Once again, I’m left with no clear indication of what you favor in opposition to what you clearly oppose.

        No laws, police, or justice system? Seriously dude, spell it out.Report

      • NewDealer in reply to Jaybird says:

        That’s what I want him to do. That’s what I’ve been asking for.

        I don’t think he can. He says he is a fan of the Castle Doctrine so maybe he does want everyone for themselves….

        Anarcho-Capitalism perhaps….Report

      • NewDealer in reply to Jaybird says:

        Jaybird might as well be on the Far Side of the Moon from our points of views.

        Sorry, I really couldn’t resist.Report

      • Jaybird in reply to Jaybird says:

        I am someone who has a lot of sympathy for the pro-death penalty position (enough to the point where I don’t have a problem arguing it) but who, intellectually, thinks that it isn’t likely to be used well or wisely… but who also can’t find much ground to argue against the most extreme examples of folks who, seriously, deserved the death penalty.

        The Castle Doctrine is worth mentioning, I suppose, because part of my “crazy” when it comes to government is the whole “if I don’t see where I get the right to do X to you, I don’t see where the government has the right to do X to you” thing. There are circumstances under which I could see lethal use of force being justified by me… and, therefore, I suppose I could see there being circumstances under which the government could use lethal force.

        Now, I just don’t trust the government to have anything close to the level of discernment necessary to figure out its ass from its elbow… and that pretty much makes me intellectually opposed to the death penalty.

        I do find the theory arguments interesting enough to argue against, though. Certainly when they’re packaged in moral theory. (And, as I’ve said before and implied above, arguments in support for abortion always use the hardest cases as the wedge… rape/incest/life of the mother, and questioning whether abortion should not be an option. When it comes to whether the death penalty is an option, I find it more interesting to use Lawrence Brewer than Troy Davis as to whether the death penalty ought to be kept around.)Report

      • Stillwater in reply to Jaybird says:

        Rod: No laws, police, or justice system? Seriously dude, spell it out.

        I think he’s offering a critique of the current system rather than solutions to the problems. I’ve been arguing something similar, and my proposed solutions include moving away from the incarceration-as-punishment model towards restorative justice coupled with community based programs like those outlined in this article.Report

  17. Rod Engelsman says:

    While I am morally outraged by the doctor who performs a procedure I believe is murder, I am equally outraged by the state-sanctioned murder of a criminal.

    This. If you assay the laws defining murder of various stripes vs. self-defense (including national defense in wartime) and (genuinely) justifiable police shootings, etc., I conclude that murder can be defined as the unnecessary and intentional killing of another human being. So the question becomes: Is execution necessary to satisfy the legitimate interests of society and the state and, if so, what are those interests?

    I just don’t see it. The only possible claim would be an interest in retribution and vengeance. Is that a legitimate state interest? And given the manner in which we’ve sanitized it all, the seemingly endless appeals and the length of time between conviction and execution, even if we accept vengeance as a legitimate state interest I’m not sure how our current death penalty regime satisfies even that.Report

  18. Jaybird says:

    I also admit that I find the argument that:

    “A life in prison is worse than the death penalty anyway”

    personally repugnant.

    Beyond that, it’s usually given hand in hand with discussion of the immorality of the death penalty! Quelle Incoherence! (I tend to presume that the person giving the argument is doing so from a position of seeing morality as preferable to immorality. Maybe that’s a bad presumption on my part.)Report

    • I see what you mean, Jaybird, and the “life imprisonment is worse than death” argument is usually used in the incoherent way.

      However, I suppose one can hold that view and in so doing hold out hope for some sort of spiritual reckoning and, ultimately, salvation and healing that is possible with life imprisonment but not with the death penalty.

      That is assuming a lot, of course, and I don’t endorse it, but I could see the argument (as long we, again, assume a lot).Report

    • Rod Engelsman in reply to Jaybird says:

      I also admit that I find the argument that:

      “A life in prison is worse than the death penalty anyway”

      personally repugnant.

      I hear, ya, JB. But I think that statement is usually deployed against the argument that life in prison with no parole is somehow letting the scum off easy. It’s deployed when arguing against a certain kind of law-and-order hard-ass. And it’s likely also deployed by a certain type of DP opponent who’s most troubled by error rates, racially discriminatory sentencing, etc., the kind of person who is most troubled in the end by the finality and irreversibility of the DP rather than skepticism over the whole notion of retributive justice.

      Personally I’m bothered on both accounts but it also seems clear to me that some people are just too dangerous to leave running around loose. I believe prison should be reserved for those who are demonstrably (by evidence of their own actions) physically dangerous to the rest of us. It’s simply a matter of segregating and containing a public hazard, no different in concept than caging a rabid dog or putting up a barrier around a toxic spill.

      And perhaps we should reconsider making our correctional system actually… you know, correctional rather that just bare punishment. Perhaps our private prison industry wouldn’t be so onerous if they were incentivized to rehabilitate and return offenders to society as productive members as opposed to just warehousing as many as possible and providing a graduate course in crime for the ones that are eventually released. (Even then I’m still very skeptical of the private prison industry.)Report

  19. NewDealer says:


    I agree that the concept of life without possibility of parole is horrible and I think it should be used in very limited circumstances. I think that life with the possibility of parole should also be used in very, very limited circumstances.Report

    • Stillwater in reply to NewDealer says:

      Here’s something Jaybird has hinted at (or maybe more than hinted at or maybe not at all…): if prison-for-life is justified because it prevents people from committing further crimes, then why isn’t the death penalty on the table since it’s the most expeditious way to prevent further crimes? If the death penalty is opposed because human life is sacred (or something along those lines), then how is it not sacrilegious to deprive individuals of their lives even if not their life?

      As Jaybird has said, sometimes people commit such heinous crimes that the death penalty seems entirely appropriate. I’m not sure I’d go that far, myself, but I do think that what he’s talking about – that there is a compelling argument for terminating the lives of individuals whose past behavior constitutes evidence that they’re irredeemable (or have sacrificed all their basic rights, or whatever) – requires rebutting. But it’s an entirely other thing to say that a person – who might otherwise deserve to be killed for his crimes – ought to be imprisoned for the remainder of his natural life. How is that argument supposed to go? “Since I oppose the death penalty but believe in lex talionis as a governing principle, a person who commits heinous acts ought to be imprisoned for life”.

      Why? To teach them a lesson? To teach others?

      Is the idea that the best lesson we can teach others without using state power to kill them is to imprison them for life? But if that’s the case, then lex talionis isn’t the justification for imprisonment.Report

      • NewDealer in reply to Stillwater says:

        We’ve mentioned wrongful conviction before and seem all in agreement that is very bad. Upthread and to you, I mentioned that you can provide money damages for the wrongfully convicted. Say 1 or 2 million a year for every year in prison as a hypothetical number).

        It is hardly a great remedy but it is a remedy. There is no remedy for death. The dead remain dead. Why is everyone ignoring this?

        The death penalty is off the table for the mentally ill because they lacked capacity and will power to control themselves in a substantial way. Yet they could still be dangerous enough to require institutionalization of some kind.

        That is why the death penalty is off the table. And I’ve also gone on record saying I think life without parole should largely not be used except in extreme circumstances. I believe we met them out too often.Report

      • NewDealer in reply to Stillwater says:

        To be clear, I support restorative justice and alternatives to incarceration but Jaybird’s critique is coming a bit too much from libertarian land.

        I also think is basis of what the government can and should do is a bit odd. Unless he sports a welfare state because he performs acts of charity or something.Report

      • Jaybird in reply to Stillwater says:

        For the record, I support the idea of a welfare state *BECAUSE* I think it might be appropriate for you to take from me when I have surplus on behalf of those who happen to be suffering from famine.

        It’s the whole “Exactly how many levels of Maslow’s Hierarchy am I expected to provide?” question that I ask that gets statists to start screaming about how little I must “care” about other people if I would be willing to actually put syllables to such a question.Report