Punishment Capital

Christopher Carr

Christopher Carr does stuff and writes about stuff.

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50 Responses

  1. Burt Likko says:

    Making the process more palatable is probably all that the Supreme Court can do. The death penalty is explicitly mentioned in the United States Constitution, so it is hard to imagine how the Framers thought it cruel and unusual punishment beyond the scope of the basic charter of government that they wrote.

    In order to abolish the death penalty, we would need to have the unmitigated arrogance of using afresh our own contemporary moral judgment instead of staying within the safe harbor of the collective moral sensibilities of rich 18th-century property owners trained in the legal precedents of 17th century England.Report

    • Kazzy in reply to Burt Likko says:

      “…we would need to have the unmitigated arrogance of using afresh our own contemporary moral judgment instead of staying within the safe harbor of the collective moral sensibilities of rich 18th-century property owners trained in the legal precedents of 17th century England.”

      Hey… didn’t I kinda sorta say that on your post? Only much more stupidly?

      One of the rhetorical-but-maybe-not questions I ponder as I work with children include:
      “How do I teach children that violence is not the answer in a country that has the death penalty and seems determined to be in a perpetual state of war?”
      When children can say, “But the government does it,” in response to me telling them not to do something, we’ve painted ourselves into a bit of a corner. Ought I respond, “The government is wrong?” Couple that with my refusal to do the Pledge of Allegiance in my classroom and I may soon face the death penalty for high treason.Report

      • Brandon Berg in reply to Kazzy says:

        How do you teach children not to rob their classmates when the government levies taxes?Report

      • Kazzy in reply to Kazzy says:

        Because taxation can be explained in ways that do not qualify it as such.

        It is hard to explain the death penalty or war in ways that do not qualify as violence.

        Now, perhaps the lesson shouldn’t be “Violence is never the answer.” But try teaching anything else nowadays.Report

      • J@m3z Aitch in reply to Kazzy says:

        I don’t know. I’d rather try to teach that violence stopped Hitler than to teach that passive resistance kept the tanks out of Stalingrad.Report

      • Kazzy in reply to Kazzy says:


        I agree. The question then is how do we craft an approach to appropriate uses of force that doesn’t flip everybody out?Report

      • J@m3z Aitch in reply to Kazzy says:

        Do people flip out over the idea that force can be used in self-defense or in defense of others, but should not go beyond the amount necessary to achieve that goal?

        That sounds to me like a snarky question, because it all seems too obvious to me. But it’s a serious question–is what seems obvious to me non-obvious to others (parents, other teachers, other relevant groups I can’t name) in your experience?Report

      • Kazzy in reply to Kazzy says:

        Let’s see… my school apparently has a policy (though no one can find where it is actually written) that even discussing guns if off limits and one set of parents recently accused a 9-year-old girl of bullying because she didn’t invite their daughter to her birthday.

        So, yea, people will flip out at the idea that we can teach kids a nuanced position on violence. Because people. hate. nuance. Teachers especially… it demands that they actually teach something.Report

      • J@m3z Aitch in reply to Kazzy says:

        Sigh. The benefits of college teaching is that I can talk about almost anything (although academic freedomis not actually absolute, just very expansive, and by contract at my college, limited to areas withinthe faculty member’s field–fortunately, precious little doesn’t connect to political science, and I also teach in Economics and Environmental Studies, so I can talk about nearly anything I’m actually interested in, at least if zi contextualize it properly).Report

    • LeeEsq in reply to Burt Likko says:

      I know, or at least hope your being ironic, but there are worse manifestations of unmitigated arrogance.

      Nearly every time that the death penalty has been eliminated, its been in opposition to public opinion on the matter and was done top-down. France was the last Western European country to abolish the death penalty, it only did so in 1980 under pressure from other European countries and did so reluctantly. A majority of French citizens supported the death penalty at the time.

      The death penalty still also polls well in Europe and the United States. Its not hard to see why, it appeals to the darker instincts concerning justice and the need for vengeance. If we want to get rid of it in the United States, its ultimately going to be a top-down reform just like it was in every other country.Report

      • Burt Likko in reply to LeeEsq says:

        To both @leeesq and @kazzy : in all sobriety, I keep on saying that the Framers wanted us to make up our own minds about things. They knew very well that they weren’t demigods; and they didn’t want us to adopt a civic calculus that treats them as though they had been.Report

      • Kazzy in reply to LeeEsq says:

        I figured that, @burt-likko .

        I always think of Joe Pesci’s speech in “With Honors”:

        A slow clap and everything!Report

      • LeeEsq in reply to LeeEsq says:

        The Framers might have wanted this but they failed to realize that a lot of Americans are very religious and it was highly likely that a document like the Constitution be treated as just as sacred as the Constitution. Jefferson would have been surprised we haven’t written a new one by now.Report

      • Patrick in reply to LeeEsq says:

        Jefferson would be appalled at what we’ve done with the document as amended.Report

      • NewDealer in reply to LeeEsq says:


        I agree but they made it awfully cumbersome and next to impossible to change the Constitution and other policies. Francis Fukuyama published an article about this recently called The Decay of American Institutions. He thinks we have a problem and it is a very bad one in a self-repeating cycle.

        The short version is that we let the legislature and judiciary handle things that are normally handled by executive and administrative agencies. This gives too many opportunities for vetocracy of any policy decision. Someone in Congress can gum it up and if it survives Congress and the Executive, it still needs to survive the courts. This leads Americans to reenforce their belief that power is not to be trusted which leads to more gridlock, etc. He does not have any solutions to this issue.


        I don’t think Lee’s point was about the Framers but more about the fact that death penalty abolition is always a top-down enforcement and we have a deeply puritanical culture in many ways that thinks “eye for an eye, tooth for a tooth” is still a good judgment mechanism. There are a lot of liberals who have a hard time maintaining a consistent message on crime as a policy issue. My law school was pretty left leaning but there was a big division between the Public Defenders and the people who wanted to be District Attorneys even if all could be considered Democratic otherwise.Report

      • J@m3z Aitch in reply to LeeEsq says:

        New Dealer,

        Bear in mind they were shifting away from a document that required unanimous agreement from state legislatures to change, so they actually loosened the constraints considerably.

        Depending on how you want to count the Bill of Rights (as 10 changes or one lumo-sum change), it’s been changed either 17 or 27 times. Even with the lower number it’s been changed on average about every 13 years.

        Those who argue for making it easier to change seem to me to assume the changes they’d like to see, rather than the changes that are more likely. But in the years since the now-almost-but-not-quite-irrrelevant failure of the Equal Rights Amendment, the proposed amendments that have come closest to getting out of Congress are the Balanced Budget Amendment, the Flag Burning Amendment, and the Same-Sex Marriage Amendment. I’ll take that tradeoff and keep the process difficult, thank you very much.Report

      • greginak in reply to LeeEsq says:

        @burt-likko Completely agree Burt. Way to sound like a complete liberal. FSM above knows if i said that some in the crowd would talk about how liberals types hate freedom, the constitution and kittens. Its only true that i hate kittens though.Report

      • Rod in reply to LeeEsq says:

        You monster! Kittens are lovable little terrorists.Report

      • LeeEsq in reply to LeeEsq says:

        Yeah, this. A lot of liberals and progressives dream about a constitutional convention that creates a parliamentary system and gets rid of the Senate, etc. They seem to forget that its not only going to be liberals at a constutional convention. A lot of contitutinon-in-exile people are going to get elected to it and they are going to want a super-Madisonian document that enshrines everything liberals hate about the current system. They also forget there don’t seem to be any professional politicians arguing for parliamentary reforms in the United States, just a lot of pundits and intellectuals. Maybe some parliamentarians will go to a convention but its not likely.

        The ultimate result is going to be a compromise but its not going to be everything either side wants.Report

      • LeeEsq in reply to LeeEsq says:

        This liberal votes for the puppy party.Report

      • Chris in reply to LeeEsq says:

        Even with the lower number it’s been changed on average about every 13 years.

        This is a case in which the mean is more deceptive than it is revealing.Report

      • J@m3z Aitch in reply to LeeEsq says:


        Methodologically I’m entirely open to that argument, but I need more explanation to follow why you say so in the particular case.

        Additional pre-emptive hemming and hawing: 1) I did divide by 17, rather than 27, mind, so as to make a conservative estimate and not overstate my case; and 2) does your argument bear on my argument about what easing the route toward amendment might wreak on us?Report

      • J@m3z Aitch in reply to LeeEsq says:


        The ultimate result is going to be a compromise but its not going to be everything either side wants.

        Well said. And the key question each side needs to ask themselves is, if that convention was held here and now, am I likely to find that compromise more or less satisfying than the status quo constitution?

        Of course that depends not just on our estimate of current political issues and forcesn the U.S., but also on how we think the process would be structured, about which the Constitution is unsettlingly quiet. How would delegates be selected? Would states be equally represented again, or would it be by population? Would the convention require mere majority approval in convention, or some supermajoritu, and how high? Would the convention go for a whole new document or just propose some new amendments? Would ratification of a new constitution, and if so by how many (and what happens if a significant geograpfical cluster, like the old confederacy or the mountain west, doesn’t have enough votes to stop it but resists incorporation?) or by state conventions (and how are delegates chosen), or by state-wide referenda or by national referendum (with geographically based dissent again possibly relevant)?

        I could easily design a process I would think is satisfactory, but what guarantee would I have that my desired process would be followed, much less my desired outcomes achieved? I’m very Burkean cautious on this issue. The only thing I believe about God is that when he wants to punish youhe answers your prayers.Report

      • Chris in reply to LeeEsq says:

        James, the amendments tend to cluster: the first 11 by 1795, 1 in 1804, none for 61 years, then 3 within 3 years, then none for 45 years, then 3 within 6 years (two in 1913) and 4 in 8 years, then 2 in 1933, then 1 in 1951, then 3 in 6 years (1961, 1964, and 1967, plus a 4th 4 years later), then 1992, then none since. This clustering makes using a mean problematic. I assume someone’s got a model of this, where something about the political climate makes amendments more likely during certain periods and less likely in others, though the sample size for U.S. Constitutional amendments is still too small to do much with.

        This doesn’t speak to your point about the havoc that could or would be unleashed with an easier amendment process. We see that happening at the state level sometimes, where amendments are used to stem certain political or social trends, or to enshrine the whims of the party in power.Report

      • LeeEsq in reply to LeeEsq says:

        James, exactly. Both sides are going to want to design the Constitutional Convention to make sure that they get what they want with as few concessions to the otherside as possible. I’m sure neither side is going to want a parliamentary republic with a balanced budget amendment.Report

      • J@m3z Aitch in reply to LeeEsq says:


        True, they seem to cluster around either crisis events or the culmination of successful long-term social movements. Which in itself is significant, as it suggests that the amendment process is responsive to strong public demand, but not the to demands of groups who can’t muster strong public support for their issues, but only a marginal majority or a large majority that lacks intensity. Not that you claimed any different, but I find that not only non-problematic, but as close to ideal as we can get for a process of changing our fundamental political structures, as doing so with low demand (whether in terms of numbers or intensity) seems a recipe for creating dissolution pressures.Report

      • J@m3z Aitch in reply to LeeEsq says:

        I’m sure neither side is going to want a parliamentary republic with a balanced budget amendment.

        Well, I’d go for that. But my favor is probably an indicator of marginal the combination is.Report

      • Michael Cain in reply to LeeEsq says:

        The short version is that we let the legislature and judiciary handle things that are normally handled by executive and administrative agencies.

        Of course, we also let the executive and administrative agencies handle things that the courts required Congress to do until the 1890s or so. At that point, SCOTUS finally allowed Congress to delegate legislative details to those agencies. As I understand it, prior to that point, if Congress wanted to limit how much arsenic a factory could dump in the river, then Congress had to name the number. Not delegate it to an EPA to study and set. Arguably, that one change in interpretation made more difference in how much “law” the federal government could impose than any other.Report

      • J@m3z Aitch in reply to LeeEsq says:

        I haven’t read Fukuyama’s article yet, but have it printed out and near the top of my Christmas break reading pile. Given his past work, though, I’m not holding my breath to be impressed, and my pre-reading bias is along the lines of Michael Caine’s response.

        My overriding impression of Fukuyama is of an opportunist who got lucky with a well-titled book at the right time and has been trading on name recognition and little else ever since. I was at a Politics and the Life Sciences conference once where he was the keynote speaker because he was famous and had suddenly gotten interested in evolutionary theory–nearly everyone in the room was looking at each other and rolling their eyes because he was making big grand-theory type claims without giving evidence that he’d really dug deep into the literature or done any serious research on evolution and human behavior. I expect the same here, since he now seems to be dipping into yet another new disciplinary subfield, but perhaps I’ll be pleasantly surprised.Report

      • Pub Editor in reply to LeeEsq says:

        I skimmed Fukuyama’s article and was underwhelmed. Someone could write a trenchant, well-sourced article about increased partisan gridlock in the legislature(s) and about the ways that the federal judiciary can encumber our administrative departments. Sadly, Fukuyama’s piece doesn’t rise to that level. IMHO.

        Re: the current Constitution is too hard to amend–yes, but consider that making it easier to amend might have meant some large number of the original 13 states not agreeing to it. (It might have made sense to include an expiration date, thereby mandating a new convention and a new document, but hindsight…)

        As others have noted, the problem with a constitutional convention is that you don’t know where that tiger will carry you. (Just ask the original Annapolis convention…) I think that’s one of the reasons (not the only reason, mind) that we don’t see many prominent voices expressing a sustained call for a convention: right and left, they’re afraid of the document that might emerge.

        I for one have very little optimism that anything like the current First, Fourth, Fifth and Eighth Amendments would survive a new convention–especially one with popularly elected delegates.Report

      • NewDealer in reply to LeeEsq says:


        Your criticisms of Fukyama seem about right for star academics in general 🙂

        I think the vetocracy has a point though. There are so many elected officials and they can seemingly make great political careers off nullification in various ways shapes and form. Usually on the right it seems. Today the NY Times had an article about Sheriffs who are refusing to follow tighter gun regulations:


        I remember hearing about an organization a few years ago that taught law enforcement officers to refuse to follow laws that they found unconstitutional. A lot of people seemed to think this was good. I do not. Why does an officer get to decide on the spot whether a law is constitutional or not? How can they do this without being biased politically (as a legal realist I would add this is a conundrum for everyone).

        How is it good to have sheriffs to only enforce laws that aligns with their politics?Report

    • dragonfrog in reply to Burt Likko says:

      Am I wrong in understanding the prohibition against “cruel and unusual punishment” to be specifically worded so as to allow cruel but usual punishments? i.e. if you regularly whip people for minor infractions that’s A-OK, but you can’t whip this one person just because the sheriff doesn’t like him, when everyone else just gets a fine for the same infraction.Report

      • Pub Editor in reply to dragonfrog says:

        [Can’t tell if this is sarcasm…]

        I can’t find any case cites on point just now, but pretty sure courts treat “cruel and unusual” as a complete phrase and as a term of art within the context of Anglo-American legal history (the phrase appears as is in the English Bill of Rights of 1689, fwiw). Which is to say: no judge will phrase the inquiry as a two-step process. The judiciary will not ask, “Is this punishment (1) cruel, AND (2) unusual?” The court will simply ask: “Is this punishment in violation of the prohibition on cruel and unusual punishment?”Report

      • NewDealer in reply to dragonfrog says:

        Pub Editor is write. Even Scalia says that whipping would be banned now even though it was a normal punishment at the time of the Founding.Report

      • dragonfrog in reply to dragonfrog says:

        Sure – whipping would be banned now, but that isn’t necessarily a counterexample. It’s both cruel AND unusual now.

        At the time of the founding, would it have been banned, and if not, is the reason that it was cruel but usual?Report

  2. Damon says:

    I used to be a fan of the death penalty..no longer. ONLY because the justice system seems to generate enough false convictions that I no longer view defendants convictions as “reliably guilty”. To much junk science, crappy lab proceedures, lying DAs, testilying cops, etc.Report

    • Reformed Republican in reply to Damon says:

      This is the opinion that I hold. Even then, I only see it as a final option. Person A murders Person B in a fit of rage? I am not sure I could support the death penalty. On the other hand, a person with a high body count will probably always be a danger to others.

      Then again, these days I find myself more and more pondering alternatives to prison for dealing with criminals. I have a not come up with any good ideas, but as time goes on, a retributive justice system becomes unappealing, and I long for a system that would effectively rehabilitate.

      The current system of prison, where a person comes out losing several years of his life, and lacks the means to integrate into society, seems like a system that breeds recidivism. Maybe there are statistics that indicate otherwise, and maybe the current system does prevent crime, but that is not the impression that I get.

      I am not even sure how much prison acts as a deterrent. I believe most people would not engage in criminal activity even without the threat of prison. Speaking for myself, I do not steal from my neighbor because it is wrong, not because of the fear of getting caught. In times where I am presented with an opportunity to do wrong, where I feel fairly confident that I would not get caught, I still choose not to do it. On the other hand, those that currently engage in criminal activity are only forced to do it discreetly. I am certain there has to be a better way, I just do not know what it is.Report

      • LeeEsq in reply to Reformed Republican says:

        There are better ways of dealing with criminals than what we do in the United States. The problem is that they are very expensive and require a lot of gentleness and lack of desire to punish on the part of the populace. Unless Americans are willing to pay for them and forgot a lot of demands for vengeance than its a no go.Report

      • Rod in reply to Reformed Republican says:

        I believe we place undue emphasis on punishment at the expense of good police work. The typical response by law and order types seems always to be increased sentences.

        It’s as if we honestly believe that criminals perform a sort of cost/benefit analysis based on probabilities of getting caught and likelihood of receiving such and such sentence. Basically it’s an economic model. The reality is that criminals either assume they won’t be caught, in which case the punishment is irrelevant since they don’t expect to suffer it. Or it’s just an anger management issue and rational thought never enters into it.

        Probably can’t do much policywhise about crimes of passion, but it seems to me we would get more bang for the buck making crimes more difficult to commit without getting caught.Report

    • Rod in reply to Damon says:

      While I was never a fan exactly, I used to be okay with it until I came to understand how screwed up the system was. I just lost confidence that our justice system could mete out that punishment fairly and consistently.

      And it’s precisely in those cases that qualify for the death penalty that police are under the most pressure to make an arrest and the DA is under the most pressure to convict someone. Making sure that particular someone is actually the guilty party too often takes second priority.Report

    • dragonfrog in reply to Damon says:

      I am opposed to the death penalty for a number of reasons including that one. Or perhaps I hold a stronger form of that opinion – I don’t even think that you have to believe your particular justice system to be especially (or even at all) dysfunctional to rule out use of the death penalty on the basis of false convictions.

      The platonic ideal of a properly designed and constructed justice system will still produce some small percentage of false convictions. Some further percentage of those false convictions will stand up whatever the platonic ideal of a well designed appeal process is. The best justice system humanity ever achieves will sometimes convict innocents, and if it had a death penalty it would kill innocents.

      I use the conditional at the end of that last sentence advisedly, because I’m convinced any justice system you could short-list for “the best ever” will be sufficiently cognizant of its own error rate, and the impossibility of driving that rate to zero, that it will long ago have abolished the death penalty.Report

  3. Rod says:

    My calculus regarding the death penalty is simple (perhaps overly simple, but still…). I consider any unnecessary taking of a human life to be murder. Capital punishment appears to satisfy no practical purpose not equally well-served by indefinite confinement. Therefore it’s state-sanctioned murder, and as such, makes murderers of us all. And I don’t want to be a murderer, even by proxy.Report

    • Kazzy in reply to Rod says:

      Here, here. I actually wrote a paper on this in college, largely exploring the Catholic perspective on capital punishment, “Just War” theory, and biblical arguments in favor of vengeance. I landed in a place where the taking of life was only justified if any and every other option were exhausted. I can envision a scenario wherein a modern society might need to execute a criminal, but it is a pretty absurd scenario. Basically, you’d need a criminal with super human strength who could not be contained and harmed anyone within his vicinity, including his captors.Report

    • NewDealer in reply to Rod says:

      There are many people who feel this way. I read a quote from Hearst during his brief tenure as a Congressperson and he said the same thing.Report

  4. NewDealer says:

    Andrew Cohen made a related observation last week in the Atlantic when he asked why hasn’t there been a Supreme Court Justice who went from opposing the death penalty to supporting it.

    I’m not in favor of the death penalty. One of the most important experiences of my law school career was listening to a speaker who spent 30 years on death row for a crime he did not commit.

    Though LeeEsq brings up good points about how every or almost every abolishing of the death penalty has been top-down. When Marion Cuomo was governor of New York, the legislature would pass a bill establishing the death penalty every year or close to it and every year Cuomo would veto the bill. I think his opposition to the death penalty was one of the reasons he lost in 1994 to Pataki. Thankfully further attempts to reestablish the death penalty in New York have been unsuccessful. Wiki says New York’s last execution was in 1963.

    Yet even as support for the death penalty declines, the proponents of the death penalty get more adamant in their support. Manufacturers have refused to supply death penalty states with drugs for lethal injection and cite ethical/moral concerns and states respond by using untested drugs in the process and passing privacy shield laws to prevent reporting on the sources of drugs. Florida passed a law to streamline the process and limit due process protections for people on death row.
    There was something I read a few weeks ago about a state scheduling a significant number of executions for the start of 2014. When the Supreme Court says it is unconstitutional to execute the mentally retarded, states seem to respond by making it extremely difficult to prove someone is mentally retarded.

    Lee is right that the death penalty appeals to the darker and vindicative side of human nature. I also think it appeals to a side of human nature that does not want to deal with complex and difficult questions like what do you do with someone who has a working IQ of 50-70 and suffered a lifetime of abuse but who just happened to kill someone or some people. Out of sight, out of mind is the easy way to deal with mental illness or retardation when the person is completely innocent. The death penalty is the easy way when they have committed murder. Lengthy prison sentences when they have committed other crimes.Report

  5. Jaybird says:

    My problem with the death penalty is that we really ought to do more to prevent its application to those who are like Kelly Thomas or Oscar Grant.

    It wouldn’t surprise me if the number of extra-judicial applications of the death penalty is an order of magnitude greater than the number of post-judicial ones.Report

  6. Murali says:

    Am I the only guy here who is not against the death penalty?Report