Hannibal, Eichmann, and The Death Penalty



Jaybird is Birdmojo on Xbox Live and Jaybirdmojo on Playstation's network. He's been playing consoles since the Atari 2600 and it was Zork that taught him how to touch-type. If you've got a song for Wednesday, a commercial for Saturday, a recommendation for Tuesday, an essay for Monday, or, heck, just a handful a questions, fire off an email to AskJaybird-at-gmail.com

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141 Responses

  1. It seems to me that an argument against the death penalty that does not also address killings in the line of duty is also woefully inadequate to the task of changing things with regards to our culture’s overwhelming approval of the death penalty.

    My “argument,” such as it is, against the death penalty (it’s more a statement of first principles than an “argument”) is that no one ought to have the power to kill anyone who has been neutralized. I.e., if he/she is no longer a threat, then he/she should not be killed. A police officer who kills someone who poses a real threat is not involved in the same question of rightness/wrongness when it comes to killing someone after they have been arrested and are (presumably) not an immediate, direct menace to anyone.

    Of course, the officer might be trigger happy (and maybe we should question how and whether and in what circumstances we should permit cops to kill, and what process we go by to ascertain the justness of such killings. And I’d be on board, but I think the question is a different one from killing after the person has been neutralized. Also, I admit that “immdeate, direct menace” might not account for the imprisoned political martyr whose very longevity inspires others to commit crimes in his/her name, or the guy who might escape and to kill again. But it’s a good enough standard at least for me.

    My real question in this debate, as someone at this blog a VERY long time ago said, concerns the allocation of resources in opposing the death penalty. Do we advocate to forestall the death penalty and in any instance commute it “merely” to life imprisonment, or do we advocate for all the others unjustly or overzealously prosecuted and now languishing in a horrible, total environment?

    I’m also concerned about the “shadow of a doubt” idea for exacting the last, full measure of state-imposed punishment. We save someone from execution, but meanwhile a huge number of people are held, and their lives are being ruined, because their conviction was based on reasonable doubt and not shadow of a doubt. And I wonder whether “reasonable” means “wrong demographic” or “the state really needs a scapegoat.”Report

    • To address your point about protesting the death penalty against the guilty as well as the innocent, I agree. I do think, though, that the fact that some innocent people have been executed, or at least that some people have been executed for crimes for which the state didn’t really prove its case, is a good practical argument for abolition.

      But again, we run into the allocation of resources problem. When the person who may be innocent is sentenced to life instead of death, then the focus is on exonerating the one sentenced to death. But then again, practically speaking, if the death penalty were abolished, people might focus more on the wrongfully life-imprisoned. Or a lot of them would. I imagine some of the funders and volunteers would stop at the death penalty and go on to other things.

      To be clear, I oppose capital punishment (vide my neutralization “argument” above), but I’m nervous about many of the things you’re nervous about.Report

  2. Avatar Saul DeGraw says:

    Media especially TV media does all sorts of things to warp popular perceptions of the legal system and the criminal justice system.

    The most benign is that Law and Order apparently makes people think that criminal cases open and close fairly quickly. In real life, they can take months or sometimes years.

    There is also the CSI effect which has every crime lab being ultra state of the art and filled with people who art smart and adorkable instead of being understaffed and underbudgeted.

    Lastly you have a lot of stories that exaggerate the really horrible type of criminals. There are more Hannibal esque serial killers on TV and in movies than there are in real life. Though we can also find rather horrible examples of real life criminals like Ariel Castro.

    Crime produces an intense emotional reaction. People still think that the police and there to protect them and I think that there is still a Dirty Hair wannabe mentality that exists in the United States.

    Jamelle Bouie tells us that there is a still a lot of racial reasons why people support the death penalty which is rather tragic:


    Basically I agree with you. I think the only way to change is is to get rid of the Law and Orders, CSIs, Hannibals, etc. You need to have popular TV shows about Public Defenders, you need more To Kill a Mockingbird, The Wrong Man, the Exonerated, etc.Report

    • Avatar greginak says:

      The media presenting Good Guys killing people that need killing goes back decades. A zillion westerns were based on that very premise. I think the media is more representing what people want and believe rather then leading them.Report

      • Avatar zic says:

        The journey of the hero? That goes back to the first campfire we sat around as humans.Report

      • Avatar Saul DeGraw says:


        Probably but there was also a time when the media was willing to be unabashably liberal as well. The Ox-Brow Incident is an anti-lynching and anti-frontier justice movie. There was stuff in the 60s that was still very pro-New Deal and pro-little guy.

        A friend of mine made this observation about some Sonderbergh feature films is that in movies like Contagion, you need to trust the authorities and the government. The good guys in Contagion are the CDC and other forces in the federal government who try to keep calm and order and do so reasonably to very well. It is a crackpot blogger who causes chaos like in the pharmacy riot scene.

        This used to be more common in movies but changed during the Vietnam Era and has largely not come back. We are still in Three Days of the Condor mode of storytelling.Report

      • Avatar LeeEsq says:

        Distrust of the government in movies seems to be the highest for the civilian purposes of government like public health. For the criminal and military purposes of government, there is often a message that you should trust the police or soldiers. For some reason prosecutors, police, and soldiers are treated as much trust worthy than other government officials.Report

      • Avatar Mad Rocket Scientist says:


        Which strikes me as exactly wrong. We should immediately distrust government agents who can immediately bring violence to bear much more than those who can not.

        And not because those with the ability to bring violence will more readily do so, but rather because those agents can do so with little possibility of significant repercussions.Report

    • Avatar Fnord says:

      Although for Hannibal specifically gur creprcgvba bs n fvzcyr “Jurj. Tbbq.” erfcbafr gb n xvyyvat vf fher tbvat gb gnxr n orngvat va shgher rcvfbqrf.Report

    • Avatar Brandon Berg says:

      Lastly you have a lot of stories that exaggerate the really horrible type of criminals. There are more Hannibal esque serial killers on TV and in movies than there are in real life. Though we can also find rather horrible examples of real life criminals like Ariel Castro.

      There are over 10,000 homicides per year in the United States. Just because not all of them would make for good TV doesn’t mean that they’re not terrible crimes.

      Jamelle Bouie tells us that there is a still a lot of racial reasons why people support the death penalty which is rather tragic

      Note that only a third of the convicts executed since 1976 have been black, while the majority of the homicides committed in the US have a black perpetrator. Yes, I understand that this is because most homicide is intraracial and the death penalty is applied less aggressively when the victim is black. But be aware that applying the death penalty in a racially neutral manner would likely mean that a higher percent of executed convicts would be black.

      And why does no one ever talk about the much greater sexual disparity in application of the death penalty?Report

      • There are over 10,000 homicides per year in the United States. Just because not all of them would make for good TV doesn’t mean that they’re not terrible crimes.

        I think that misses Saul’s point, but it’s true enough.

        Note that only a third of the convicts executed since 1976 have been black, while the majority of the homicides committed in the US have a black perpetrator. Yes, I understand that this is because most homicide is intraracial and the death penalty is applied less aggressively when the victim is black. But be aware that applying the death penalty in a racially neutral manner would likely mean that a higher percent of executed convicts would be black.

        I don’t have any stats to deny yours, so I’ll assume that they’re true. But as someone who is bothered by the racial disparity but for whom the disparity is not the true rejection, I’ll say I’m not arguing merely that the death penalty be applied in a more racially neutral manner. I want it abolished.

        And why does no one ever talk about the much greater sexual disparity in application of the death penalty?

        I do, and it bothers me. (I have run across a study suggesting that there is no or little disparity, but that men just commit a much grosser number of homicides. Unfortunately, I don’t have a cite, and even if I did, that’s just one study.)Report

      • Avatar Jaybird says:

        Well, one thing that I remember from my Women’s Studies course (back in 1992) was that men who killed their wives tended to get 2nd degree murder because they weren’t trying to kill anybody. It was just “the usual” gone wrong this time. Women who killed their husbands, however, tended to wait until he was drunk (or buy a bottle and got him drunk) and then, after he passed out, did the deed.

        So first degree.Report

      • @jaybird

        I can’t speak for Brandon, but what bothers me about the sexual disparity (if there is indeed a disparity, which is not proven) is that I suspect that given a woman and a man who commit identical crimes, a woman would be less likely than the man to get the death penalty. Again, maybe the truth of that claim is in doubt.

        Also, what you say in your comment is probably right.Report

      • Avatar Brandon Berg says:

        I have run across a study suggesting that there is no or little disparity, but that men just commit a much grosser number of homicides.

        Men do commit the vast majority of homicides, but even after accounting for that, the gulf is huge. IIRC, women commit about 10% of homicides, but make up only about 1% of executed prisoners.

        Jay may be right about homicides committed by women skewing more towards premeditated. It makes sense, but I haven’t seen the data. That would suggest that the application is skewed even more than the numbers above suggest.Report

      • Avatar KatherineMW says:

        Pierre – I suspect you’re right, and that people are more unwilling to execute women. (Tangentially – it really bothers me when the news talks about the number of “women and children” killed in a war or an attack. Men can be civilians, and women can be combatants. And it contributes to the perverse idea that male civilians are less important, or less ‘innocent’, than female ones, and to ideas like the Obama Administration classifying any male over 15 killed in a drone strike as automatically a ‘combatant’.)

        But I’d like to see studies looking at specifically what crimes US states with the death penalty tend to execute people for, and the gender distribution of those crimes, before I conclude my gut reaction is correct. For example, serial killers are overwhelmingly white and male.Report

      • Avatar Saul DeGraw says:

        The real factor in deciding who gets the death penalty seems to be the race of the victim, not the defendant. If the victim is black, the death penalty is far less likely.Report

      • @katherinemw

        I’d like to see such studies, too. And I believe the study I mention above (for which I can’t find the cite) tries to control for such variables.

        I agree 100% about the “women and children” phrasing.

        I’d push it even further and say that “combatant” can be a loaded term. If someone joins the military, then they might be a “combatant,” but they’re still a person. Not to mention more marginal cases–joining the military because too few other options or the draft.Report

      • Avatar Brandon Berg says:

        But I’d like to see studies looking at specifically what crimes US states with the death penalty tend to execute people for

        I suspect you already know this, and that by “what crimes” you mean what kinds of murder, but just to be sure: Since the death penalty was reinstated in 1976, no one has been executed for a crime other than murder.

        A large majority of prisoners executed were executed for one single-victim homicide. It doesn’t describe the circumstances, but there’s a list here. Scroll down about a page to the list of defendants executed by year.Report

      • Avatar Glyph says:

        @katherinemw – “serial killers are overwhelmingly white and male”.

        Male, yes. White, no.


        The racial demographics regarding serial killers are often subject to debate. In the United States, the majority of reported and investigated serial killers are white males, from a lower-to-middle-class background, usually in their late twenties to early thirties.[7][13] However, there are African American, Asian, and Hispanic (of any race) serial killers as well, and, according to the FBI, based on percentages of the U.S. population, whites are not more likely than other races to be serial killers.[13] Criminal profiler Pat Brown says serial killers are usually reported as white because the media typically focuses on “All-American” white and pretty female victims who were the targets of white male offenders, that crimes among minority offenders in urban communities, where crime rates are higher, are under-investigated, and that minority serial killers likely exist at the same ratios as white serial killers for the population. She believes that the myth that serial killers are always white might have become “truth” in some research fields due to the over-reporting of white serial killers in the media.[72]

        Also a quick google of ‘most prolific serial killers’ shows plenty of South American, Indian, ME/African, and Chinese examples, which makes sense just by population.Report

      • Avatar KatherineMW says:

        Interesting, Glyph. I stand corrected.Report

    • Avatar notme says:


      So you would prefer a TV show where cops frame innocent people, where the labs do shoddy work using bad science, and prosecutors knowingly prosecute innocent persons. I’m not saying that bad things don’t happen but they certainly aren’t the norm as you seem to believe.Report

      • Avatar KatherineMW says:

        Hey notme, what’s a better show – CSI or The Wire?Report

      • @notme

        Saul wasn’t arguing that Law & Order is necessarily a bad show. Maybe he believes so, but that wasn’t his argument. His argument was that shows like Law & Order present a certain message and reinforce a certain set of assumptions that are faulty or if not wholly fault, at least overdetermined.

        For the record, I like Law & Order, or at least the episodes from the 1990s. It’s good brain candy and a good diversion. But I have to admit that he’s right and if anything he understates his case. He could’ve mentioned how the show usually (not always, but usually) gives the impression that all defendants get competent and dedicated representation. Which probably is not always the case in real life.Report

      • Avatar Saul DeGraw says:


        Pierre and Katherine make my case well. There is nothing wrong with Law and Order as TV. It is fairly entertaining (but I haven’t seen an episode in years) I like the Sam Waterson years.

        Pierre is right about defense counsel though. If only that happened in real life…Report

      • Avatar notme says:

        I don’t know how you define “better” so who is to say. I never saw The Wire b/c I didn’t have HBO. A lot of folks rave about it so it must not be bad. I liked David Simon’s other crime drama Homicide: Life on the Streets. The Wire is certainly more realistic from what I’ve heard.

        Saul said he would get rid of shows like L&O, etc. so I gather he isn’t a big fan.
        “I think the only way to change is is to get rid of the Law and Orders, CSIs, Hannibals, etc. You need to have popular TV shows about Public Defenders, you need more To Kill a Mockingbird, The Wrong Man, the Exonerated, etc.”?Report

      • @notme

        I read that quotation as saying “if we want to change this perception completely,” we’d have to get rid of those types of shows, not “we need to abolish it.”

        But fair enough, your interpretation on the wording is perhaps more plausible.

        But yet again, Saul’s principal criticism was against the message these shows convey. I think he’s spot on about the message Law & Order (which I know best) conveys. And that message is at least a few steps removed from a realistic portrayal of how things are.Report

      • Avatar Kim says:

        Yeah. that sounds like real life. Oh, and throw in a DA’s mysterious disappearance. And nobody following up on it, because they know better.Report

    • Avatar Barry says:

      “There is also the CSI effect which has every crime lab being ultra state of the art and filled with people who art smart and adorkable instead of being understaffed and underbudgeted. ”

      And where nobody hints that the primary purpose of the lab is to support prosecutions, so it’d be Real Nice if the lab results were always pleasing to the prosecutors.Report

  3. Avatar Shazbot3 says:

    What is the argument for the death penalty being moral/good/just?

    Is it just “That guy is baaaaad. Kill him!” ???

    Pointing to examples alone is not an argument. You need to state your premises and your conclusion.

    What are the premises of the argument?Report

    • I think the argument is similar to “That guy is baaaad. Put him in jail!”

      A related argument is “That guy is part of the one percent. Charge him with a crime!”Report

      • Avatar Shazbot3 says:

        Who makes that argument? Is it those hippies we need to punch?

        I’ve heard “That guy from Enron(or Goldman) defrauded people of millions, so put him in jail.” Again, that argument needs to be developed because without added premises it ain’t much. But surely the crime involves being rich as a result of financial fraud, not just being rich per se.

        I suppose you can find someone who says anything, even “That person should be in jail for being five foot two.” But the vast, vast, vast, vast majority of left wing people and left wing principles and ideology in general, would not accept “The 1% should all be put in jail just for being in the 1%.”Report

      • Avatar Shazbot3 says:

        And that is a tangent.

        The question is whether there is an argument for the death penalty. Obviously, there are bad people who turn our stomachs. Pedophiles, for example. Should they get the death penalty too, or only murderers? Drug dealers?Report

      • I’ve heard “That guy from Enron(or Goldman) defrauded people of millions, so put him in jail.” Again, that argument needs to be developed because without added premises it ain’t much. But surely the crime involves being rich as a result of financial fraud, not just being rich per se.

        I.e., he’s a bad person and he needs to go to jail.Report

      • Avatar Mike Schilling says:

        Likewise, I don’t know anyone who says “He was part of the Bush administration: jail him!” as opposed to “He conspired to torture people: he belongs in jail”.Report

      • To clarify: my one-percenter line was a cheap shot and a tangent and I deserved your response. I knew even when I wrote it that it would detract from the conversation. I apologize for doing that.

        But I do double down on my “that guy is bad, put him in jail comment” (though perhaps without the four extra 4 a’s). People who support punishing others for crimes are saying that some kind of punishment is “moral/good/just.”

        What makes the death penalty all that different? I can cite a number of reasons and you can, too, but what bothers me (as someone who opposes capital punishment, mind), is that the essential sense of vengeance cannot and isn’t in practice very well separated from desert when it comes to crimes.

        What also bothers me is that imprisonment is very bad, too. Perhaps it’s not as bad as the death penalty (or perhaps it is…..I’m just not going to assume), but it is bad, it’s a form of pain, and if some of the stories I’ve heard about prison life are true, then in some ways it probably counts as something I’d call torture. Or maybe not. I am basing my “knowledge” on stories and movies. But by imprisoning someone we are harming them, and I find it hard to draw a neat line between harming someone without killing them because they did something wrong and harming someone by killing them because they did something even worse.

        I’ll repeat and clarify what I think I’ve just said. I oppose the death penalty. But I’m not so sure that any kind of punishment humans mete out is completely free from the kind of animosity your “that person is baaaaad” comment attributes to the death penalty. That’s why I said whatever argument used to justify the death penalty is “probably similar”–not exactly identical to–the arguments used to justify imprisoning others.Report

      • Avatar Shazbot3 says:


        I agree with the content of this clarified post. “He is bad, therefore he should be put in jail” is not a good argument. In fact, it is barely an argument. Simply citing examples of people that turn our stomach and saying “See, they deserve punishment” or “See they deserve death” is not an argument of any real worth at all.Report

      • Avatar Barry says:

        “A related argument is “That guy is part of the one percent. Charge him with a crime!””

        This is a lie, pure and simple.Report

      • Avatar zic says:

        The dude guilty of defrauding the public/shareholders who’s a member of the 1% should be responsible for the theft, not necessarily for being in the 1%. I haven’t heard anyone calling for Warren Buffet to be jailed, for instance.

        A lot of this is frustrating to people; we’ve just experienced global economic decline that seemed very close to collapse, and the only people who got blamed were the folk doing what was conventional wisdom of good family finance — buying a house. I still here the collapse blamed on ‘the housing boom,’ and I find very few people (even here) who understand that problem was lack of regulation of synthetic derivatives that placed bets on housing while being completely detached from the underlying securities that the bets were based on; combined with one global insurer covering the majority of those bets.

        So when I read ‘1% should be in jail,’ I think the phrase is a complex shorthand for several things — frustration that they don’t understand financial systems, some gut-level understanding that very wealthy people got away with abusing the system because there were no rules or the rules weren’t enforced, and ongoing outrage at the amount of cronyism that shapes government to the economic interests of the rich over the poor.

        As much as people don’t understand finance, they don’t understand government, which is really odd considering that politics is on a par with football as a national past time. Can you, without looking it up, draw a pie chart showing the four or five biggest expenditures of the US government? Do you know what rule making is? Some of you may, but in my experience, most people who are relatively intelligent and informed cannot draw the pie chart and have no notion of the rule making process; just as many people don’t understand hedging, options, or shorting.

        So I hear the ‘jail the 1%’ as something different then calling for Warren to spend the remainder of his days in prison; I hear it as shorthand that the days of the Robber Barons are back.Report

    • Avatar Murali says:

      The argument usually goes something like this:

      1. People who do bad things deserve punishment equal in magnitude to their crime.

      2. All things equal, people should get what they deserve

      Conclusion: People who deliberately and knowingly kill innocents deserve to be killed.Report

      • Avatar Shazbot3 says:

        How does one determine what punishments are equal in magnitude to their crimes?

        Do we go literal? An eye for an eye?

        And if we go literal, how do we determine magnitudes of punishment when the person can’t be damaged in the way that he or she has damaged others. If X steals a million and can’t repay any of it, is death an equally big punishment? 1 life equals one million?

        If you assert the death penalty just is equal in magnitude to killing others, then that would be begging the question.

        How about torture? Is that sometimes a deserved punishment? Raping prisoners?

        I conclude that the first premise is too vague to be accepted and thus we will need a different argument to justify the death penalty.Report

      • I’m not sure of Mural’s stance on the death penalty, but in his comment, he’s limiting himself to stating the premises. He’s not necessarily endorsing them, at least not in that comment.Report

      • Avatar Shazbot3 says:

        And how does intent figure into premise 1. If I plan to murder Y, that seems to deserve a “bigger magnitude.” So, if I accidentally through recklessness kill a person, it feels -intuitively- like that doesn’t deserve the death penalty. But what if I am reckless when I should have been careful and I end up killing many many people, a la a scientist who fudges data on a medicine trial or a bureaucrat at an oil company who fails to be diligent about security. Should that be punishable by death?

        The whole question in front of us is do crimes of a certain “magnitude” ever deserve the death penalty? If there is a justifcation for the answer “Yes,” I am waiting to hear it.Report

      • Avatar Shazbot3 says:

        I mean to criticize that argument as woefully vague or obviously question begging.Report

      • Avatar Saul DeGraw says:

        What’s the solution if the state executes someone by hiding evidence or using faulty evidence?

        This is what happened to Cameron Todd Willingham? What is the appropriate punishment for the prosecutor?Report

      • Avatar Shazbot3 says:

        Why not death penalty for the prosecutor indeed?Report

      • I’m inclined to believe that certain crimes do merit death. But I think it’s nevertheless wrong for us to punish them with death.

        But frankly, Shazbot, doesn’t the law generally recognize such things as intent when considering the magnitude? Aren’t first degree murders theoretically eligible for the death penalty (in states that still have it) while manslaughter is not?Report

      • Avatar Shazbot3 says:

        Sure, intent should be involved in determining punishment.

        But the question is how do we take facts about intent and the consequences of the crime to determine the magnitude of the crime?Report

      • @shazbot3

        Ah….now I think I see where you’re coming from.

        I’m still chewing on your argument below about question-begging. Your point seems right, but there’s something I’m not getting and can’t put my finger on. Maybe it’s that it’s hard to talk about some things like desert without assuming the conclusion?

        (I have the same problem with my anti-death penalty “argument.” If you accept my premises, you’ve almost definitely have to accept my conclusion. But you (the general you) don’t necessarily accept the premise.)Report

      • Avatar Shazbot3 says:

        Yeah, I think we’re on similar pages.Report

    • Avatar Murali says:

      I missed out the third premise.

      3. The only punishment that approaches equal magnitude to the killing of an innocent is the killing of the murdererReport

      • Avatar Shazbot3 says:

        Premise 3 begs the question.

        In a way a question begging argument is pretty much no argument at all.Report

      • What question is begged? That is, what conclusion does Murali assume to be true in order to prove that same conclusion?Report

      • Avatar Shazbot3 says:

        P1: People deserve punishments that fit their crimes.
        P2: The death penalty fits the crime of murder (or some murders, anyway).

        C: The death penalty is a punishment that murderers (or some murderers, anyway) deserve.

        Can we agree the above argument is question begging? (I can hardly think of a clearer example of a question begging argument.)

        The reason is that the term “fits” smuggles in the concept of desert.

        Now compare:

        P1: The death penalty is a punishment of a magnitude that fits the crime of murder (or some murders)
        P2: People should get a punishment that fits their crimes.
        C: Murderers (or some murderers) should get the death penalty.

        Do you see how both arguments beg the question?Report

      • Avatar Murali says:

        Depends on your account of fittingness.

        You can hang the fittingness on a reciprocity standard. Death penalty fits at least some murders because there is an equivalent amount of harm done to each person. If you understand fittingness as incorporating desert, then yes merely saying that the death penalty fits murder begs the question. But if you say something like:
        people deserve rewards and punishments in proportion to and preferably equal in magnitude to their marginal contributions or harms to society (insofar as those are culpable)

        then the to say that the death penalty fits the crime just is to say that the magnitude of harm done to the criminal is roughly the same as the harm done by the criminal. Now, this may not always be feasible, but it is question begging only if you phrase the argument in particular ways.Report

      • Avatar Shazbot3 says:

        You’re missing my point Murali. I must be explaining it poorly. Let me try again.

        Suppose we can define a punishment Y that is exactly “equal in magnitude” to crime X. Why should I believe that this is the punishment that is deserved/moral/just? If you say “because it is equal in magnitude,” you stupid Shazbot, then the argument begs the question. If you add some content, then that will be your actual argument for the death penalty.

        As I see it, there are two pro death penalty arguments that don’t badly beg the question, one of which you seem to be sort of getting at: The first -oft cited by some utilitarians- involves the claim that the death penalty is a more effective deterrent and saves lives. The second -Kant’s- involves the principle of lex talionis, the law of retaliation. If you steal from me, I have the right to retaliate. The state will retaliate for me and punish you If you kill my friend, the state should retaliate on his behalf.

        I think we should all see that it isn’t true that the death penalty is good as a deterrent. This is just a factual error.

        And lex talionis has some pretty absurd and horrible consequences if you accept it. That is, we can do a reductio to disprove it. But it is a serious position.Report

      • Avatar Murali says:

        Suppose we can define a punishment Y that is exactly “equal in magnitude” to crime X. Why should I believe that this is the punishment that is deserved/moral/just? If you say “because it is equal in magnitude,” you stupid Shazbot, then the argument begs the question. If you add some content, then that will be your actual argument for the death penalty.

        I’m not sure I get what you’re saying, or perhaps you are missing what I’m saying. It seems that one strand of our sense of justice is that people get done what they did unto others. One way to cash out what it takes to be treated in such a way that gets at the root of what is right or wrong about people’s actions (and hence why it is intuitive that they be paid back in kind) is the extent of harm or benefit one inflicts on others. This seems like a perfectly general principle which we are willing to endorse on its own grounds in plenty of other cases. For example, we feel that chopping a guy’s hand off for petty theft is excessive because the harm done to him is greater than the harm he did to others. By the same measure, if someone defrauded lots of people off their retirement savings, we would think that getting just one year in prison would not be enough. I don’t have to believe anything specifically about the punishment of any one particular type of case in order to endorse the general principle that good things should happen to people who contribute to society and bad things should happen to people who harm society and the good and the bad done to them should be neither less nor more than the harm that they have done. There is nothing question begging about the general principle. There might be general sceptical worries* about such a reciprocity principle, but such worries also plague other alternative moral principles as well. I will concede that there may be a genuine problem in terms of justifying the general principle to people who are inclined to be sceptical about it. After all, just because I have a particular intuition doesn’t mean that others share it. (For example, I find the Christian account of forgiveness counterintuitive and morally horrifying) One might object that the principle outlined has, in practice, lots of caveats. In fact, the meat of the argument may very well lie in examining whether any competing principle (that we also independently acknowledge) applies and overrides the reciprocity principle. There might be some question begging going on at this deeper level, but that would be true of virtually all moral arguments people make.

        One must be careful, however, not to offer arguments for those caveats which undermine the practice of punishment as a whole, at least not unless you think the concept of punishment as outmoded and wrong-headed as a whole.

        *For example, how do we know that people deserve to have the good and harm they inflicted on others inflicted back on them to the same amount? Why not threefold? Why not 80%? How do we know what people deserve? How do we know that people deserve anything anyway?Report

      • Avatar Brandon Berg says:

        I think we should all see that it isn’t true that the death penalty is good as a deterrent. This is just a factual error.

        Oh. That settles it, I guess.Report

      • Avatar Shazbot3 says:


        How do you know which punishment is the appropriate magnitude for which crime.

        Any phrase like “appropriate magnitude” or “proper magnitude” smuggles in a normative concept into the premise that risks making the argument question begging. It assumes that we know what the morally good magnitude of punishment is.Report

      • Avatar Shazbot3 says:


        You think it is a better deterrent than other harsh punishments? Is their data to support this?Report

      • Avatar zic says:

        There are stats on homicide rates for death-penalty states vs. non-death-penalty states:

        States without the death penalty consistently have lower homicide rates. But this doesn’t answer the question of they lower rates are related to lack of death penalty or the death penalty exists because these states tend toward greater violence.Report

    • Avatar Jaybird says:

      What is the argument for the death penalty being moral/good/just?

      That there is a sense of justice being accomplished after the killing the murderer of others that isn’t there when you provide housing, food, and medical care for 50ish years to the same murderer.Report

      • Avatar Stillwater says:

        I go back to this all the time and it wigs me out a bit. We, as a society, believe that imprisoning someone for the remainder of their natural life is more just, more moral, than killing them outright. Seems to me that that moral view requires an argument, and I’m not sure what it would be.Report

      • Avatar zic says:

        I rather like the 21-year max system in Norway; the only exception being for aiding the enemy in time of war.

        Because someone will eventually be freed, there’s some sense built in that people can redeem themselves, even from the vilest of crimes, and perhaps it is a society’s best interest to work toward that end, instead of just locking folk up and throwing away the key.Report

      • @stillwater

        I have the same problem. And I don’t know the answer. Perhaps the answer is something like @zic mentions with Norway. As I understand (or have “heard” on the intertubes), the 21-year maximum is part of a larger system that is more humane in its treatment of prisoners.Report

      • Avatar Creon Critic says:

        That description of Norway misses a few wrinkles (from your link):

        The indeterminate penalty (civilian penal code), called “preventive detention” (Norwegian: forvaring), is set at up to 21 years’ imprisonment… If the prisoner is still considered dangerous after serving the original sentence, the detention can be extended by five years at a time. Renewal of the detention every five years can in theory result in actual life imprisonment. Preventive detention is used when the prisoner is deemed a danger to society and there is a great chance of his committing violent crimes in the future. However, after the minimum time period has elapsed, the offender can petition for parole once every year, and this may be granted if it is determined that he is no longer a danger to society.

        I think this is a reasonable balance, for the reasons you (zic) cite, and life without the possibility of parole / without review violates a prohibition on cruel, inhuman, or degrading treatment/punishment. The death penalty certainly violates that prohibition.Report

      • Avatar Saul DeGraw says:


        I like Norway’s system as well but I am cynical about Americans ever being able to deal with such liberal system. We seem to have an old school puritanical streak that believes in punishment. There is also the fact that we seem to be able to do malice for all, compassion for none instead of the compassion for all, malice towards none.

        We don’t seem to know how to handle societal problems except by screaming “criminalize it” as we saw in the Global Warming thread.

        Norway’s 21 plus years is not an absolute rule. There is a safety valve. I don’t think Anders Brevik is going to be released from prison after 21 years. Also from what I’ve heard Norway’s model rehabilitation prison is so hardcore in their efforts that some criminals ask to be sent to normal prison.Report

      • I share Saul’s cynicism. If we had a 21 year maximum (or whatever), then it might become the de facto new minimum for some crimes that are now punished with “only” 10 years.

        I can’t sign on to the “puritanical streak” comment. I suspect the present system has more to do with incentives built into our small-d democratic politics and our common-law traditions. Calling it a cultural thing is too simplistic. And it’s not just “puritans” who believe in punishment.Report

      • Avatar zic says:


        I’m struggling with the concept that a system that’s far more lenient then the system we have should be met with cynicism because it’s worst might be the result; though given our tendency to need to punish instead of reform, I can understand the basis for the concern. But I think it would be better focused on the problem — the desire to punish.Report

      • Avatar Jaybird says:

        Sometimes I wonder if we wouldn’t be better off keeping the death penalty and getting rid of prison.Report

      • @zic

        I’m not sure that punishment is in principle a bad thing if it’s based on desert. Or rather, if we are to have a system of incarceration, then I’d rather it be based on whether the incarcerated “deserve” it than whether we are incarcerating the person to “help” him/her. To much can go wrong if we justify imposing ourselves on others by using the rationale that we’re helping them.

        That’s not really an argument for punishment as punishment, or against uninvited help or against rehabilitation schemes. But just an urge to caution of what might happen.

        Also, there are probably much better ways of managing things than are done in most places in the US.Report

      • Avatar Stillwater says:

        if we are to have a system of incarceration, then I’d rather it be based on whether the incarcerated “deserve” it

        In what sense would a person, the agent who committed the crime, deserve incarceration? I can understand an argument that society deserves to be rid of such a person (because they’re irredemable?); or that the victim’s desires for vengeance deserve to be honered. What I can’t understand is how the criminal deserves to be incarcerated.Report

      • @stillwater

        I’m not sure I have an answer. Maybe punishment need not imply incarceration, but saying that just avoids your question rather than answering it.

        As a working rule, I’d say that if you harm someone, you owe that person a restitution and that you owe “society” a restitution in the form of punishment, and if the harm is bad enough, then that punishment can be incarceration.

        But saying that, I come off sounding like a….I don’t know what I sound like. But it doesn’t strike the right tone of how I’d like to sound. As the point you quoted below suggests, maybe there is no real justification for punishment.Report

      • Avatar zic says:

        @pierre-corneille I suspect a good deal of what we met out as ‘punishment’ might be treated as ‘mental health care.’ And if there were better mental health care, there would be less to punish.

        Even there, mental health care itself has often been a form of punishment, I learned that from Janet Frame. There are always many things to be aware of; known knowns, unknown knowns, unknown unknowns, etc. etc. etc.Report

      • Avatar Stillwater says:


        This is related.

        Also, given the linky, I feel like I need to give a shout-out to Foucault’s Madness and Civilization which also talks about some of these issues and was the first thing I read by that mad genius.Report

      • Avatar Shazbot3 says:

        But not everyone feels it is just.Report

      • Avatar Shazbot3 says:

        Note that ther is a sense of justice some get in torturing prisoners, too. Or in using gang rape as a punishment.Report

    • Avatar Tod Kelly says:

      “What is the argument for the death penalty being moral/good/just?”

      I’m pretty anti-death penalty, as is pretty much everyone here. Still, it seems wrong for everyone to slide past the actual arguments used by its advocates and pretend they don’t exist, so I’ll list here the ones I hear most often:

      1. Deterrence — You might be less willing to kill your wife for the inheritance if you know you’ll be killed if you’re caught.

      2. Justice — An eye for an eye, if you will. If we are to work hard to do things like end slavery and give women the right to vote, based on a concept like ‘cosmic justice,’ then we should too work to mete out that same cosmic justice for those who most deserve it.

      3. Prevention — A person who murders a fellow human being once will do it again. Since you can’t guarantee that a person will spend the rest of his life in prison (escape, end of sentence, parole), the death penalty saves some unknown number of future lives that potential death-row inmates would collectively take in the future.

      4. Mercy — Like a rabid dog, some people are so far gone in their mental illnesses that allowing them to live, locked up forever, is a kind of hell on earth and is far more cruel than death; it is in fact far more merciful to end there lives through lethal injection.

      5. Religious — Essentially, in the vast majority of religions, God demands execution for certain crimes.

      Again, none of these arguments are at all persuasive to me, but it seems right to acknowledge that they’re the ones actually used.Report

      • Avatar Tod Kelly says:

        Ooops, forgot one:

        6. Economic — If we are determined to separate someone from society forever because of what they would do, it is far cheaper to execute that person than to imprison them for the rest of their life; further, it is immoral to ask the friends and loved ones of that convict’s victim to, through tax dollars, pay to support that person indefinitely.Report

      • Avatar Patrick says:

        Those are all perfectly fine theoretical arguments.

        In all the years humanity has used capital punishment, they haven’t produced much in the way of compelling evidence that executions help much on any of those points except 2 & 5, which are really the same point, are immeasurable, and ineffable.

        In fact, 1, 3, 4, and 6 all have some compelling evidence that it works the other way around.Report

      • Avatar Tod Kelly says:

        Maybe? I mean, I certainly think so.

        Though I have to say that the risk manager in me says that #1 and #3 must save X number of lives, though it might be impossible to know what that number is. #1 because different weights of carrots and stick really do produce different results when dealing with large numbers of people; #3 because we all know there are cases of people who’ve gone to jail for murder who’ve gotten out one way or another and killed again.

        So the issue in my mind is not that these reasons have zero effect, plus I always assume that there are too many balls in the air in a disparate population of 300 million to ever get a proper handle on violent crime. There are always unintended consequences to any potential solution, and eliminating or even reducing violent crime is never so simple as advocates of either side argues.

        I tend to think of this particular question being one of picking a particular kind of poison — of deciding that the most important way to answer a moral question like this that has no knowable answer is with another question: what kind of people do *we* want to be?Report

      • Avatar Shazbot3 says:

        Hey Todd,

        Yeah 1,3, and 4 are all part of a utilitarian argument that I don’t think is question begging. But when you look at the world and places where there is and isn’t a death penalty and then look at crime, the case that the DP is valuable as a deterrent is just not serious. It isn’t question begging, but it isn’t a serious argument either.

        The religious argument, i.e. the argument from divine command is no more serious than the divine command argument against gay marriage or for certain kinds of slavery. You were right to mention it as a non-question begging argument. But it ain’t serious.

        Another non-serious argument -that you didn’t mention- is the one from cultural relativism. Our culture has a tradition of using the death penalty. And who is anyone to criticize our culture? Therefore the death penalty is justified. This should be recognized as a non serious argument by anyone and everyone here.

        Murali got close to your argument 2. Again, I’ll say that there is a serious and non-question begging Kantian argument about the death penalty. It is a deeply flawed argument, IMO, but we haven’t really been debating it.Report

  4. Avatar zic says:

    I am and have always been 100% against the death penalty, though I admit that there are people who so disgusted me I wished we had a right to murder them.

    I also believe in the right to commit suicide; and that’s nearly an issue because because it’s so intwined with both the lack of mental health care and our tendency to presume free will so that we can punish people for their actions.Report

  5. Avatar Mike Schilling says:

    we could get pretty much 98% of the country to agree that innocent people shouldn’t be executed, after all.

    But a large number who would insists that it never happens, which is why there’s a lot of pushback on whether Willingham was guilty or not. Similarly, I’m sure that the same 98% would agree that innocent people shouldn’t be imprisoned indefinitely, but many would insist that there are no innocents in Guantanamo.

    I’m not 100% opposed to the death penalty in principle, but I am 99.9999% opposed under any judicial system that’s likely to exist in the real world. Is it just for Texas to charge the death penalty and appoint incompetent defense counsel? The question answers itself. (Eichmann received a first-rate defense, which is as it should be. He was executed, not lynched.)Report

    • Avatar James K says:


      I feel the same way, I have sympathy for the idea that some people deserve to die, but I would require false-positive rates that I suspect are lower than is feasible for a real world judiciary.Report

    • @mike-schilling

      I’m opposed to the DP in principle, but even if I weren’t, I’d sign on to your and James K’s reasoning here as another reason to abolish it.Report

    • Avatar Tod Kelly says:

      “I’m not 100% opposed to the death penalty in principle, but I am 99.9999% opposed under any judicial system that’s likely to exist in the real world.”

      That wraps up my own thoughts pretty succinctly.Report

      • Avatar Patrick says:

        I opposed to the death penalty in principle, actually… if the principle is that a system acts as a proxy for an aggrieved citizen and kills someone on their behalf.

        In the State of Nature, I’m okay with the death penalty, but it’s something you levy yourself, you don’t pay taxes for someone else to do it.Report

    • Avatar Kazzy says:

      I think the death penalty might the justifiable if no other alternatives exist. Thankfully, most (maybe even all?) modern societies have other alternatives. Numerous ones.

      One of a government’s primary functions is to protect its citizenry. This can be done without killing threats, especially when those threats exist within our lands, subject to our laws.Report

      • I think I agree, too, and I think that fits well with my “neutralization” standard.*

        *By “‘neutralization’ standard,” I mean it is inappropriate to kill someone who no longer poses an immediate threat, or i.e. has been “neutralized.” Again, mine’s not an “argument,” but a guiding principle that I’ve concocted to explain to myself why I oppose the death penalty.Report

  6. Avatar KatherineMW says:

    I think the innocence of some people on death row is a sufficient reason to oppose the death penalty, based on two facts:

    1) Human beings and human systems are never infallible.
    2) The death penalty is irrevocable.

    We may improve our justice system, but we will never have a 100% accuracy rate where every guilty person is convicted and every not-guilty person is acquitted. Yes, we need to improve the justice system to make it less likely that innocent people will be convicted – but the system will never be perfect. And while it’s horrible if you send someone to prison and find out ten years later that he was innocent, and nothing we do can make up for those ten years he’s lost, we can still try to compensate him in some way, and let him go. If we execute an innocent person, we can’t bring them back.

    And if the cost of not executing any innocent people is that some horrible people get to die in prison of natural causes rather than in the chair or from the needle, then that’s a reasonable price to pay.

    That isn’t my sole reason for opposing the death penalty – I’m opposed on principle to executing people, partly on the Christian basis that anyone is capable of repentance and we don’t have a right to deprive someone of that chance by executing them – but I think it’s a strong argument, and easier to make than defending the redeemable-ness of serial killers. And these days people react negatively to bringing religion into politics.Report

    • Avatar Road Scholar says:

      While as an atheist I wouldn’t cite the possibility of redemption myself, it seems an entirely reasonable position for a Christian to take. I’ll use any good argument I can get. 😉Report

    • Avatar notme says:


      So how about executing folks whose guilt is beyoned doubt?Report

      • @notme

        I can’t speak for Katherine an my own objection against the death penalty does not depend on the (in my opinion true) claim that innocent people are sometimes executed. But I think the argument is as follows:

        There are some people who are indisputably guilty. And they should probably be executed (assuming the arguments for capital punishment and the arguments that the specific crime is bad enough to merit capital punishment..

        However, any judicial system has to be, well, systematic. It can’t be a “this time and for all time execution because we really know this person did it.” It’s more a “we have to be really, really sure the person did it. We’ll implement these safeguards to ensure it.”

        But those safeguards, no matter how stringent, may very well lead to some false positives or frame ups or whatever. So some innocent people might very well be executed.Report

      • Avatar Murali says:

        Innocent people are also sent to jail where they are killed or raped. Even if neither happens, they still lose some significant portion of their lives. Any humanly implemented criminal justice system will, by its nature punish people who are not guilty. It seems that such an argument proves too much. Unless we are seriously prepared to deny the legitimacy of any criminal justice system, we are going to accept that there will be some innocents whom we punish without ever realising it.Report

      • Avatar J@m3z Aitch says:

        So how about executing folks whose guilt is beyoned doubt?

        I don’t think that touches on the “redemption” part of Katherine’s argument. Even people who are guilty beyond doubt may be capable of redemption. In fact if we believe in the omnipotent power of God, we’d have to say they are capable of redemption, without qualification.

        To execute them, then, is presumably–if we believe in hell–to send them to hell, rather than allow them the opportunity for redemption. If, as the New Testament tells us, all have sinned and deserve death, as well as telling us that only those who are without sin (i.e., none of us) should cast the first stone, then it’s a plausible argument to say that none of us have standing to condemn a person to hell.Report

      • @murali

        I don’t disagree. That’s why I’m nervous about incarceration in general, and why I’m worried that the resources devoted to abolish the death penalty might be misallocated.

        Of course, it’s easy for me in the cheap seats–I’ve never lifted a finger or donated a nickel to reform anything–and sometimes to engage in good (and I believe abolishing the DP is good) one has to sometimes settle for leaving some bad things in place. So I don’t want to be too harsh to the abolition movement. And if the movement succeeds, and it appears to be succeeding, then maybe those resources can now be devoted to prison reform, or exonerating other people, or ensuring better legal representation for the accused.Report

      • Avatar J@m3z Aitch says:


        That’s unfortunately all too true. The sole advantage of imprisonment over death in that regards is the possibility to provide at least some recompense to the convicted-but-innocent. We can never make them whole unfortunately (which is the ideal in the common law system of compensation for harm), but perhaps we can make them better off than they would be if they had been executed. (And in that last section, read in all the various complexities, including the non-sequitur of suggesting the dead have utility that can be measured, because all of that complexity is what makes this such a tough issue.)Report

      • Avatar Creon Critic says:

        Rape and murder aren’t inherent parts of incarceration (in fact, it says separate, awful things about justice systems where prisons are sites of that type of violence). Death is an inherent part of the death penalty.

        Also, it seems to me that the disruption to one’s life being wrongfully incarcerated is an order of magnitude below the disruption to one’s life being wrongfully put to death.Report

      • Avatar notme says:

        With that logic, the next step is that the state can’t punish anyone for anything until we can make sure the system is perfect. Are you really prepared to accept the chaos that would result? Sorry but that doesn’t seem even slightly realistic.Report

      • (((disengages from the “discussion”)))Report

      • Avatar Michael Cain says:

        Consider the following comparison if you’re convicted of murder and sentenced to life w/o parole…

        You’re going to spend the rest of your life in a state prison (30 years? 40 years? more?). Your personal space, if the prison is not crowded to the point of double-bunking or barrack-style sleeping, is a single room, 8×10 feet or less, with bed, toilet, and sink. Your social interactions are almost exclusively with people of the same sex who have a demonstrated capacity for violence, many with mental health problems that aren’t being treated. Other than communication with counsel, all of your communication with the outside world is subject to inspection. Minimal medical and dental care. Limited outdoor time and space. Limited media access. Institutional food in a communal setting. Institutional clothing. Communal showers. You may be able to work a menial job, if any are available. And if you are deemed a threat to the rest of the population, or they to you, conditions go downhill in a big way.

        Or we could just kill you.Report

      • Avatar Creon Critic says:

        One can stack up a bunch of human rights violations on the prison side, that doesn’t make the death penalty any less an affront to human dignity. The anti-death penalty people, so far as I have seen, are not for human rights violations in prisons.

        Also, taking a quick look at Amnesty International’s “Fair Trial Manual”, several of the conditions you describe run counter to the subchapter Amnesty outlines on Conditions of Imprisonment (cites omitted, p. 179),

        Prisoners retain their human rights, except for proportionate restrictions prescribed by law which are necessitated by their deprivation of liberty. The treatment of prisoners, prison conditions and the prison regime must respect and protect the rights of incarcerated individuals.

        International standards set out guiding principles for the treatment of prisoners. They direct the prison system to respect the human rights of prisoners, imposing only such restrictions as are necessitated by incarceration, and not to aggravate the suffering inherent in the deprivation of liberty. They require the prison regime to minimize differences between prison life and life at liberty. The treatment of prisoners must aim at their rehabilitation and social reintegration….

        The conditions in which prisoners are held must, at a minimum, be consistent with international human rights standards. States have a duty to treat imprisoned people with humanity and with respect for the inherent dignity of the human person…

        As imprisoned individuals are in the custody of the state, the state is responsible for their physical and psychological welfare. Adequate food, water, medical care and treatment (including necessary medication), hygiene, shelter and bedding must be provided….

        – Here, pdf, http://www.amnesty.org/en/library/asset/POL30/002/2014/en/7aa5c5d1-921b-422e-8ca4-944db1024150/pol300022014en.pdfReport

      • Avatar Michael Cain says:

        I don’t disagree. I oppose the death penalty in general for all of the usual reasons. I would like my state’s prisons to meet those guidelines. My state practices reasonable classification of prisoners, so the non-violent ones do their time in a private prison with (TTBOMK from my time on the legislative staff that dealt with prison budgets) decent standards. The state prisons proper no longer serve much of a rehabilitation function (there are exceptions), but are largely just storage for people who have been deemed too dangerous to allow to run loose. That’s a tough PR problem when looking for additional budget dollars to improve conditions.

        Even under the best conditions that still impose separation from society in general, I’m not sure that a lifetime sentence is any kinder than a quick painless execution.Report

      • Avatar Creon Critic says:

        This is not a principled point and may even be question begging, but I’ll raise it anyway. Commutations and clemency work with the death penalty at the top of the hierarchy of punishments. It is in part why the point for discussion that @tod-kelly raises below the pro-death penalty mercy claim puzzles me. I can’t think of a (not torture prone) penal system where the death penalty is the result of commutation. I can think of penal systems that had really gruesome death penalties (e.g. drawing and quartering) that are reduced to less gruesome executions – but that’s trading one method of execution for another method of execution. It just seems intuitive that the death penalty ranks as taking the maximum from the individual involved, life preceding liberty and any possibility of liberty being predicated upon having life.Report

      • Avatar Jaybird says:

        I’m not sure that a lifetime sentence is any kinder than a quick painless execution.

        From what I understand, whenever someone is given an option, they overwhelmingly choose Life Without Possibility Of Parole.

        Life is sweet, after all. You can pretty much get used to anything. And there are moments of small pleasures to be found pretty much everywhere. And, even if you don’t have that, you’ve still got hope at the bottom of the box.

        “I could die. Maybe the king will die. Maybe the horse will die. And who knows? Maybe the horse will learn to sing.”Report

      • Avatar Michael Cain says:

        It’s not begging the question — it is the question, or at least part of it. In our contemporary penal system, is a quick painless death at the hands of the state at the top of the punishment heirarchy? Sometimes it’s probably not. To pick an example that comes up regularly, inserting a male pedophile into the general state prison population and letting the word get around about what he is is a death sentence. Not a quick painless one, but almost as sure.

        The telling statistic, if I’m recalling it correctly, is that states with the death penalty have the same rate of crimes in the death-penalty category as states that don’t have it. If it’s no more deterrent than life without parole, then those would seem to occupy an equal spot on the hierarchy in the minds of the people committing the crimes.Report

      • Avatar Michael Cain says:

        Same choice after 20-30 years in the system? Let’s be honest — most of us have no idea what life without parole really means.Report

      • Avatar Jaybird says:

        Are we willing to say that, technically, suicide is an option that would illuminate that particular option for us?

        Here’s from http://en.wikipedia.org/wiki/Prisoner_suicide (there’s a wiki page for everything!)

        “The suicide rate in U.S. federal prisons is lower than the nationwide average.”

        Now, that’s not, as far as I can tell, talking solely about LWPOP people but… hey. Hope floats.Report

      • Avatar Will Truman says:

        I suspect it’s a whole lot harder for someone to commit suicide (in a way that would statistically show up as suicide) in prison than outside of it.

        I do think I nonetheless disagree with MC on the issue.Report

      • Avatar Michael Cain says:

        As I recall the statistics I saw on prison suicides when I worked for the state — and I may misremember them, it wasn’t in my parts of the budget — the suicide rate in prisons was lower than on the outside in big prisons and quite a bit higher than on the outside in small ones. The numbers were usually cited to show that evaluation programs, active counseling, and high levels of monitoring of troubled inmates — all things that were common in big prisons and rare in small ones — kept people from killing themselves.

        Even most legislators who thought such programs were “coddling” the bad guys admitted that the programs were probably cheaper than defending (and especially than losing) wrongful-death liability cases.Report

  7. Avatar Stillwater says:

    A few seconds of googling brought me to this review of some of the philosophical problems in various theories of crime and punishment, concluding with:

    In its current from, justice isn’t justified. This shouldn’t be surprising: most attempts to explain pre-existing instincts and institutions – as opposed to working out with an open mind what can be justified – will lead to a similar conclusion. The ideas of retribution and desert are inextricable from the kind of punishment we have today, but they are fatally undermined by determinism and the fact that they boil down to inflicting suffering to satisfy the instinct of revenge. But a more enlightened version of justice and punishment, involving deterrence, reform and a concern for what kind of society we want, could be justified.Report

    • Avatar Jaybird says:

      It’s like the sex offender list. Once upon a time, it made sense (or almost made sense, kinda) to have a sex offender registry so that people would know who was an exceptionally bad actor. Sure.

      The problem is that people who, for example, sext each other are now showing up on the registry. Romeo/Juliet pairings end up on there. So on and so forth and now we have a serious reason to doubt whether someone is on any given sex offender registry for a good or for a stupid reason. It’s since become useless.

      I mean, when I was in high school a million years ago, we had one of those student assemblies dedicated to some nonsense and, at the end, an enterprising student thought it’d be a great idea to streak. Everything old is new again! Well, of course, the principal came down on everybody involved like a ton of bricks, the entire school lost some privileges, and the student himself got suspended. This strikes me as somewhat overkill… but fine. Now? Streakers get put on the registry.

      That’s not what the registry is supposed to be for.

      In the same way, if I thought that prison was populated by guys who run chop shops, murderers, rapists, guys who regularly engage in assault and battery, and so on? I’d almost be okay with prison for “we’ve got to keep these folks away from ‘nice’ people” reasons. But, and these numbers are from Reason:

      According to the CEPR study, nonviolent offenders make up more than 60 percent of the prison and jail population. Nonviolent drug offenders now account for about one-fourth of all inmates, up from less than 10 percent in 1980.

      That’s not what prison is for. What the hell are we doing?Report

      • Avatar zic says:


        I’m a victim of a pedophile, and the way sex offender registries are used is so offensive, I’d be happy to see them banned.

        There’s all sorts of weird stuff that falls out of this, too. In my community, we hold our elections in the local schools. Given how fearful we are of mass shootings in schools now, it’s one of the only days in the year when the greater community is allowed into the schools with some heightened (and pretty offensive) screening. There is a barrier drawn, in the name of safety, between the schools and the people who pay for those schools.

        Recently, there was a move to have voting shifted to another location because there are some people in the area (who have the right to vote) who are on the sex-offender registry; petition circulated and all that. And it’s a pretty low bar to get something like that on the agenda for legislative body (10 signatures) or on the warrant for town meeting (50 signatures or placement by the select board).

        I did my best to nip this in the bud by pointing out to the town’s elite political operatives that making there be further distance between the town’s people and schools wasn’t to anyone’s benefit, and that it was good people had to go into the school to cast their ballot; see what future they were voting for. I also pointed out that for any offender who’d been court-ordered to stay away from children would already have to vote via absentee ballot.

        These kinds of weird examples permeate through our culture, and create all sorts of odd dichotomies. (

        Likewise, I’m pretty sure that much of the change in marijuana perception is founded in how many people have a loved one, obviously not a drug addict or problem, who’ve had seriously legal consequence due to prohibition; a similar thing to the acceptance of SSM — second-hand exposure breeds tolerance, maybe?Report

    • Avatar Shazbot3 says:

      I agree with this quotation, mostly. I think.Report

  8. Avatar dragonfrog says:

    People who are innocent are not arguments against the death penalty per se, they’re arguments that the system itself is flawed and, it seems to me, an argument about making the system better would address that particular problem, or go a long way toward doing so (hey, we’re haggling!).

    I couldn’t disagree more.

    All systems created by humans are flawed. Justice systems particularly are always going to be massively flawed. The best and most accurate justice system the world ever sees, between 5000 BC the Sun engulfing the Earth, or whatever eliminates the last intelligent being in the place, will be massively flawed because that’s just the fundamental nature of complex systems of competing interests.

    It is fundamental to the nature of justice systems that they can never be trusted with the decision to execute someone.Report

  9. Avatar Jaybird says:

    Shaz, a question. You’re wondering where “deserves” comes from. I submit to you: it’s an intuition. It’s an intuition that seems nigh-universal. I mean, if I were to posit a situation where Dick Cheney were to be waterboarded, would you see how someone (even if it isn’t you) would see that as an appropriate punishment for Cheney’s sins?

    As he meted out to others, so shall he reap upon himself.

    Even if you don’t feel a twinge of anything at the thought, if someone else said that that’s what they felt Cheney deserved, would you need an explanation why they felt that?Report

    • Avatar Shazbot3 says:

      No, I am not wondering where desert in general comes from.

      I am wondering where “He deserves punishment” specifically comes from.

      I think it is possible that no one deserves punishment, even if people deserve other things.

      Perhaps criminals deserve to have their freedom diminished to protect others, or to maintain a secure society, or to deter crime, but they deserve to be helped and be treated well while their freedom is deprived.

      I’m not sure I believe that, but I toy around with it. No one deserves to have bad things done to them, even those who have done bad things. Stated that way, it is a question-begging truism, but you get the point.Report

      • Avatar Jaybird says:

        So you don’t understand why someone would think “Cheney should be waterboarded”? That’s as incomprehensible to you as it would be to, say, Erick Erickson?

        I think it is possible that no one deserves punishment, even if people deserve other things.

        Do you comprehend why someone else might say “It’s possible that people can act in ways that deserve punishment”? (I’m not asking if you agree, mind.)Report

      • Avatar Brandon Berg says:

        No, I am not wondering where desert in general comes from.

        If you aren’t, you haven’t thought hard enough about it.Report

      • Avatar Murali says:


        There is not much to think about. It comes after the meal.Report

      • Avatar Glyph says:

        @murali – I didn’t realize you had such a dry sense of humor.Report

      • ….or if your horse has no name.Report

      • Avatar Shazbot3 says:

        I do not think Cheney deserves to be waterboarded, no. No one does.

        And I do see that people disagree with me (just as some disagree with my belief that vaccines don’t cause autism and should be given) but I don’t see persuasive reasons behind that disagreeing belief. (Or I’d agree.)

        Again, I mentioned a deterrent argument and Kant’s lex talionis argument, and said neither question begging nor insane. But the former is based on false premises (we can have that debate, is the dp a deterrent over and above prison or whatever). The latter has some pretty strong, many would say absurd, consequences, thus it is the victim of a reductio.Report

      • Avatar Shazbot3 says:

        I take it back about people not deserving punishment. People other than Brandon don’t deserve punishment.Report

      • Avatar Jaybird says:

        Well, now we’re haggling.Report

      • Avatar Jaybird says:

        I don’t see persuasive reasons behind that disagreeing belief. (Or I’d agree.)

        Really? I have quite a few differences of opinion where I totally see how someone could come to a different conclusion. Jesus, I’d be stuck thinking that I’m the only right person in the world.

        Which, I suppose, makes me glad that happenstance had you end up opposed to the death penalty.

        In any case, I’d say that most intuitions in support of punishment come from an idealization of how the universe ought to work, how people ought to behave, and how future people ought to behave. Sadly, the universe doesn’t do a good job of punishing bad actors (look, for example, at Dick Cheney). This desire to have the world reflect the moral order is found in a lot of places.Report

      • Avatar Stillwater says:

        Shaz, what do you think of this punishment?Report

      • Avatar Stillwater says:

        Drat. Tod beat me to it.Report

  10. Avatar Will Truman says:

    I’ve been debating whether or not to participate in this thread, but I do have a few things to say and my views aren’t wildly out of touch with the consensus, so what the heck…

    A long time back on Hit Coffee, I wrote a post about justice and punishment. I gave a hypothetical (and made very, very clear that this was a hypothetical and that I wasn’t going to turn around and point to data) where it was demonstrated conclusively that you would have less recidivism if you treated prisoners like hotel guests than in hard-core prisons. I asked if they would take that tradeoff. The response was overwhelmingly that the hypothetical data had to be wrong.

    The consensus emerged, which I agreed with, was that all things being equal, punishment was a thing unto itself. That while we wouldn’t cut off our nose to spite our face (accept significantly higher recidivism rates just so we can punish) all things being equal we wouldn’t want to treat people who committed crimes too well. (How well was “too well” was not particularly well defined and I suspect high levels of disagreement.)

    While I don’t personally support the death penalty (except in very rare circumstances that do not apply within the United States), it’s mostly on religious/philosophical grounds. I don’t view the arguments in favor as being inherently empty or flawed or emotional (except insofar as ideology is emotion). It would be “just” for a rapist to be raped, and repeatedly. It’s just that we’re not willing to do that. We are, collectively, willing to make all kinds of jokes about it, though. Torturing some people would be just, and fair, but again it’s not something we want to do. We are willing to “kidnap” and forcibly detain people, which would be illegal in most circumstances, so we do that. We are willing to kill, and so we do that. I think it’s wrong, for the same reason I think state-sponsored rape would be wrong, but don’t think it’s inherently illegitimate any more than stripping somebody of their freedom is inherently illegitimate.

    My reasoning against the death penalty, for what it’s worth, corresponds with @kazzy ‘s above. We don’t have to. And if we don’t have to, then we should not. We can accomplish what we want to accomplish through imprisonment, for the most part. And with imprisonment, they can find spiritual salvation and if they did not actually do it we can actually release them.Report

    • That’s a really good comment, @will-truman . Thanks for sharing it.Report

    • Avatar Stillwater says:

      The consensus emerged, which I agreed with, was that all things being equal, punishment was a thing unto itself.

      Sure that’s the consensus. American’s love ’em some punishment, especially in the form of incarceration. And all that’s required to deserve punishment – this thing unto itself – is to violate the law. I mean, the US leads the world in incarceration rates; “According to the CEPR study, nonviolent offenders make up more than 60 percent of the prison and jail population. Nonviolent drug offenders now account for about one-fourth of all inmates, up from less than 10 percent in 1980”; “There are 10 times more mentally ill Americans in prisons and jails than in state psychiatric hospitals”; and on and on.

      Obviously, the view of punishment as a thing in itself requires justification. And if punishment can be justified, then incarceration as the “just” or “moral” method of punishment requires a justification as well.Report

      • Avatar zic says:

        I have a cousin who’s a junkie.

        This cousin was competing for a spot on the Olympic ski team and fell, blowing the knee out. Several surgeries later, walking was possible, but pain became part of life. Flash forward 25 years, and working added to that. It’s the mid 2000’s, and the notion that people have to live with certain levels of pain is out of vogue. Oxycontin gets prescribed. And an addict is born.

        There’s little in the way of good treatment available. The prescribed medication isn’t prescribed any more, and heroin is cheap in comparison.

        So I struggle here with punishment. This cousin’s done some pretty scummy things of late. Punishment is on tap, and the tap’s spigot is open wide.

        But nobody’s talking about punishing the system that created the problem. And nobody’s talking about the will to be an addict or psychotic or sociopathic or depressed — just the will to not be those things.

        It breaks my heart to this cousin with an arm marred by needle tracks and a sentence that suggests a horrific withdrawal to come.Report

      • Avatar Will Truman says:

        I wasn’t referring to the national consensus, but the consensus in subsequent conversations at that site.

        The ultimate justification is that people want it and we live in a democracy. Moral justifications in general are trickier.

        Even outside the US, though, and outside HC’s readership, I suspect that if you said:

        Given the same rates of recidivism, and the same overall cost, would you prefer people “do their time” in prisons that are uncomfortable or prisons that are more like hotels that you just can’t leave? I suspect that it’s not a uniquely American thing to argue that it should be the former. That a person who robs or kills (or pushes hard drugs, for that matter) ought not be able to live life as normally as possible, once caught.

        That’s not a defense of the American judicial or incarceration system. One can believe the above but also believe that we have some serious problems on our hands. But seeing fault with our system doesn’t negate a need for justice. Which does not include comfortable hotels.Report

      • Avatar Stillwater says:

        Moral justifications in general are trickier.

        Yes, they are. Very tricky, apparently.Report

  11. Avatar Michael Drew says:

    I would raise this possible distinction: do we really think that justice relates to the deserts of the perpetrator? Or is the justice we’re actually (limbically, as Jaybird might say) interested in related to what we think those who live with the effects of crimes (up to and including the general population) deserve?

    I.e., do we think that it’s in itself right that a murderer lose his life because he took the life of another? Or is what we’re actually interested in making sure that the mother, brother, wife, etc. of the victim especially, but the rest of us as well, see that the perpetrator get what it is thought in society as a prevailing attitude – whatever that entails – deserves? We might just say that that is why we are interested in justice at all. But I would say that if that is really and primarily why we are interested in justice, then that reason largely swallows up interest in justice coming to perpetrators for its own sake. I.e. swallows up interest in the justice – and justness – of the punishment only with respect to the perpetrator. Ultimately the interest there, if that is the case, is satisfaction, not justice.

    I think consequences for what might constitute justice in light of what we tens to think feels like justice flow from that distinction if it is an accurate one, though I haven’t worked out exactly what they are yet.

    I guess there’s the further question of whether we’re really in it for the deterrence. At some level of course we do punishment for deterrence purposes. But I think life-in-a-hellhole-without-parole generally gives people enough of a sense that we’re deterring murder enough to satisfy them. Maybe the death penalty does provide a bit more deterrence, but I really don’t think that’s what the issue turns on for very many people.Report

  12. Avatar Road Scholar says:

    Just a thought on deterrence: Without Googling do you know what the prescribed sentence is for the following crimes; burglary, embezzlement, rape, speeding 20 mph over the limit, wire fraud?

    Stumped? I know I would be. Some of them I would be hard-pressed to rank order. So given that, how would adding or subtracting a few years or dollars serve as greater or lesser deterrent?

    Let’s take speeding for example. It’s my experience that most people tend to regard speed limits more as vague guidelines than actual rules. Until they see a cop in the median with a speed-gun that is.

    My point is that beyond a general level of proportionality sentence length and severity is largely irrelevant to deterrence. That’s because criminals are expecting not to get caught. The risk of getting caught is a far stronger deterrent. And that’s the reality that should be guiding our public policy.Report

    • Avatar Chris says:

      My point is that beyond a general level of proportionality sentence length and severity is largely irrelevant to deterrence. That’s because criminals are expecting not to get caught. The risk of getting caught is a far stronger deterrent. And that’s the reality that should be guiding our public policy.

      I’ve heard this sort of thing a lot, but I’m not sure the people who say it are familiar with the literature or with any actual criminals. On the first, and leaving aside the death penalty for a moment (it has its own literature, and its own empirical issues), there’s a pretty big literature on the deterrence effect of sentences and sentence lengths. Its findings are not consistent with your intuition. On the second, it’s been my experience that the people who habitually commit crimes know damn well what the sentences are (sometimes they’ve already served one or two), and it affects their behavior.Report