On Death And Execution
I’m formally changing my mind on the policy of capital punishment: I am now fully opposed.
Previously, I was tentatively in favor. Not that I believe it has any significant deterrent value; it doesn’t. Rather, I favored it moderately because it fits a sense of retributive justice that has an appeal I cannot deny.
I had two reservations about it before, which were a) because it’s uncorrectable, we must be really damn sure of both the absolute guilt and the justice and fairness of the process used to obtain a verdict of death, and b) because we must be really damn sure that everything has been just and fair along the way to the execution chamber, it’s a ridiculously expensive process.
The Fifth Amendment to the U.S. Constitution is clear enough to me that capital punishment is permissible under the highest law of our land:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
So, a person can be executed (the result of a ‘capital crime’) after the charge is presented to a grand jury or its equivalent (except in the case of a crime arising out of military activities), if no other charge of the same crime has been tried in the past, after due process of law — which means, in turn, after the defendant has been afforded the right to legal counsel, the right to present evidence and argument, the right to confront and cross-examine adverse witnesses and evidence, notice of the charges (the grand jury indictment fulfills this function in this case), and the matter is tried before a neutral and fair decision-maker. If all those things happen, the text of the Constitution appears to me to permit execution.
But that doesn’t mean it’s necessarily a good idea.
And there’s also the matter of the Eighth Amendment:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The classic objection — it is morally contradictory, and therefore inherently cruel, for a state that proclaims itself dedicated to the preservation of life to simultaneously be in the business of taking it, regardless of the moral culpability of the state’s victim — never held intellectual water for me. The state, after all, is in the business of monopolozing the use of violence and the state reserves, and must reserve, to itself the dispensation of the use of lethal force. Were it not for that, we would lack both a military and police, whose potential lethality are necessary for the preservation of our society. The idea that the state can kill doesn’t bother me in the slightest.
The idea that the state might kill thoughtlessly or indiscriminately, that’s a different matter. Again, just because the state can kill does not mean that it should, and it seems beyond debate that we should demand that our leaders and our laws impose careful, sober deliberation of when the power to take life be actually exercised.
So that brings me around to Justice Harry Blackmun, who wrote in Callins v. Collins (1994) 510 U.S. 1141, 1145:
Having virtually conceded that both fairness and rationality cannot be achieved in the administration of the death penalty, the Court has chosen to deregulate the entire enterprise, replacing, it would seem, substantive constitutional requirements with mere aesthetics, and abdicating its statutorily and constitutionally imposed duty to provide meaningful judicial oversight to the administration of death by the States. [¶] From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored–indeed, I have struggled–along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court’s delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question–does the system accurately and consistently determine which defendants “deserve” to die?–cannot be answered in the affirmative. It is not simply that this Court has allowed vague aggravating circumstances to be employed, relevant mitigating evidence to be disregarded, and vital judicial review to be blocked. The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution. (Emphasis added, internal citations omitted).
I’ve coming around to thinking that this is correct, particularly in the second emphasized portion of Justice Blackmun’s opinion in the quote above. Our justice system is necessarily implemented by human beings, many of them. Someone, somewhere along the way, is going to make a mistake. A significant enough mistake not to punish a criminal for his crime? Of course not — but unless we can be satisfied that justice has been perfectly administered, then we ought not take lives in her name.
To look past all of the other incidents necessary to justice — fair rules, fair procedure, fair enforcers, fair juries, fair outcomes — and concentrate only on the moral depravity of the crime itself, only on the terror and pain of the victim and the grief and anguish of the survivors, is not to worship Justicia: that is a prayer to Nemesis.
Make no mistake: I too would feel the siren song of retribution were I to survive the victim of a murder; I would wish to see the murderer of one I loved harmed in the worst possible way imaginable and might even find the sadism within myself to personally impose such treatment. I lost a medium-close relative to an obviously inadvertent vehicular accident not many years ago and my blood still runs hot at the absence of charge against the negligent driver — notwithstanding that my parent’s sibling and I had only a limited degree of closeness and had profound differences of opinion. There was still love, family, and regard shared; the loss is a source of some pain to this day. Nor do I doubt that anyone who has lost one they loved would demand retribution and call it solace, and its absence “injustice.”
Our system of laws demands different: it must be administered without cruelty by those without interest, in the service of fairness to all. Precisely because I personally feel the sting of loss is why I cannot be the one who exercises judgment about what to do with the killer. That would not be justice, either.
If we are to kill in the name of the state, we have decreed by our highest law that we will not do so cruelly. Unlike the manner in which the criminal treated his victim, we have resolved to treat even our capital prisoners on the way to their very executions with dignity and respect and humanity. We afford our criminals the succor of clergy should they wish it. Traditionally, we afford them the sensual luxury of a last meal. And our law commands us to cause a minimum amount of pain along the prisoner’s exit from life. that brings me to the final act of the issue of capital punishment. In an effort to impose the punishment of death upon a criminal — a convicted, undoubtedly guilty criminal — we citizens of these United States have endeavored to apply all manner of ways of taking life in the name of justice.
We have hanged our criminals. Hanging works most efficiently by using the force of gravity to snap a person’s neck. When done properly, the “knuckle” of the knot in the hangman’s noose is suddenly pressed into the neck of the victim, snapping the spinal cord and ending life. Done improperly, the victim sways and chokes to death, strangling the victim to death in a matter of dozens of seconds to several minutes. Sometimes, the procedure is done improperly enough that, after a few minutes of torture, the victim survives — if so, there can be no doubt that the procedure caused inordinate pain and suffering.
We have used firing squads and may do so again. Properly done, again, from the time of entry of the bullet into the victim’s head to the cessation of life, this appears to be so brief as to not allow the victim sufficient time to experience pain. Improperly done, this can also be rendered a tortuous process.
We have used the electric chair. We have used asphyxiation through the inhalation of potassium cyanide gas in a special chamber built for that purpose. Some have suggested use of Dr. Guillotine’s decapitation engine, despite its infamy from its overuse during the Great Terror following the French Revolution. Or the use of nitrogen gas to asphyxiate. None of these methods are foolproof, nor can they be, and it is difficult to be sure that, when done improperly, they do not impose pain or cannot be subverted by a sadistic executioner taking the measure of justice into his own hands.
Notwithstanding, the principal means of execution today in most state justice systems is lethal injection. The first drug is supposed to be a powerful anesthetic, the second is a paralytic, and the third is supposed to stop the heart. The procedure was first used in the state of Oklahoma, and it is a botching of that supposedly scientific and painless procedure that came before the Supreme Court last week. On April 29, 2014, Oklahoma executed murderer Clayton Lockett using this procedure. The executioners botched the job: Lockett awoke after the injection of the drugs that were supposed to render him unconscious and held on to life for forty minutes, apparently in excruciating pain. Subsequently, Oklahoma re-wrote its lethal injection protocol, and finding that some of the drugs administered in the process had become difficult to procure, so the state agreed to incorporate other drugs to fulfill similar functions. Other prisoners on death row sued to prevent use of this drug cocktail, alleging that the drugs cause suffocation and suffering. Maybe it does, maybe it doesn’t. I have to wonder that the process of imposing this “humane” punishment necessarily takes a toll on the executioners, although I don’t know if there is even any anecdotal data available on that point.
But we have an insurmountable problem along the way. We can’t render perfect justice in our system — not perfect enough for me to feel confident in taking a life. At worst, pernicious and persistent racial and economic biases creep into our system and taint the righteousness with which the state wields death — and even at best, even with elaborate procedural safeguards along the way, even the most procedurally careful state justice system in existence that includes capital punishment executes prisoners, effectively, at random.
We spend inordinate amounts of money to balm over this fundamental fact, with smart and dedicated lawyers and years and years of appeal. Which results in this form of “justice” implemented, if at all, dozens of years after conviction, itself a denial of any pretense to justice. We deter no future crime by executing prisoners, as evidenced by the fact that there is no appreciable difference between murder rates in capital punishment states and non-capital punishment states done by apples-to-apples comparisons.
Let our murderers remain in prison, out of society, for the balance of their lives. Prison is more than ample punishment; a life sentence with no possibility of parole is not “going easy on crime.” Prison is more than ample safeguard of our collective safety. We have better things to do with our money and our time and our efforts than to try, again and again, to find a way to kill in a manner absolutely without cruelty and a way to adjudicate absolutely without bias. Let Justicia’s sword be a symbol and not a reality: she shall be served better in our society without the death penalty.
Image sourced from wikimedia commons: the electric chair in the “red hat” execution chamber of the state prison at Angola, Louisiana (museum reproduction).
Burt Likko is the pseudonym of an attorney in Southern California and the managing editor of Ordinary Times. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.
First, I’m opposed to the death penalty. Second, to your question on the front page, inert-gas asphyxiation. Leaking Halon® fire-suppression systems used to kill computer room techies because they didn’t notice that it was happening.Report
In addition to being quick, sure, and painless, inert-gas asphyxiation is dirt cheap. And has the — IMO — added advantage that no medical personnel need be involved beyond certifying that the prisoner is dead, so we can require that the prosecutor who asked for the death sentence push the button/turn the valve/whatever to carry out the execution.Report
The same with nitrogen.
N-rich environments kill a lot of untrained people that think they’ll be ok if they just hold their breath.
Nitrogen actively displaces oxygen, and the particle is small enough it enters the body through the eyes & ears.
That’s what O2 detectors are for.Report
Yeah, same deal with refrigerant. R-12 (and its successors) were/are non-toxic in the sense of not being poisonous at all. The main issue was they were heavier than air and could settle in your lungs, displacing the oxygen. First aid for someone overcome with Freon “poisoning” was to literally turn the victim upside down and beat on their chest so the Freon would “fall” out. The reefer deck had serious fresh air ventilation.Report
Also opposed to the Death Penalty (but supportive of the concept that in theory there are some people who need killin’, I just don’t trust the judgment of the government in general or law enforcement in specific).
When it comes to the death penalty and how we want to use it, it seems that we’re more interested in making ourselves feel better about how we use it (sterile, quiet) than about anything else.
Why not an overdose of opiates? Why do we insist on the guy being conscious for the start of the process (I mean, why not let him get stoned right and proper first? I mean marijuana, not rocks and stuff)?
The firing squad, the noose, and the axe all come out and say “this is what we’re doing and there isn’t any way to pretty it up.”
Wiping the arm of a guy with alcohol before inserting a needle? What lies are we telling ourselves?Report
I’ve asked the “why not opiate overdose?” question here before (it seems like a no-brainer), and don’t recall what the consensus answer was; but I suspect that there is resistance to allowing someone who allegedly did something so awful as to warrant death, to slip into that death warmly and fuzzily with little fear or pain, when their victim might not’ve; nor, in all likelihood, will you or I.Report
Not everyone reacts to opiates the same way, particularly at high dosages and can lead to a fairly ugly death if things go wrong. Its not really a reliably humane option for executions.Report
I see stories like this where establishing adequate defense counsel results in an 85% drop in death sentences. That doesn’t even factor in how many will later have their sentences reduced on appeal.
We execute the poor more than the wealthy.
We execute murderers of high-status victims more than low-status victims.
We execute men more than women.
We execute black murderers more than white murderers.
One can not be describe this as Justice in any meaningful way.Report
You linked back to the OP, @gingergene . What was the link you wanted to post?Report
No, sorry- to this: http://www.washingtonpost.com/local/pace-of-death-sentences-executions-slows-in-virginia/2015/05/03/4c40bd1a-f1aa-11e4-bca5-21b51bbdf93e_story.htmlReport
We execute black murderers more than white murderers.
This isn’t true. In the US, most executed prisoners have been white, whereas most homicides are committed by black offenders. Since most homicide is intraracial, the bias against executing the (almost exclusively black) murderers of black victims cancels out the bias in favor of executing black murderers.
In general, though, the unequal application argument is a great argument to make when you’re preaching to the choir. If there were a way to determine the truth of a murder charge beyond any doubt, I’d be in favor of executing every murderer. And if you told me that we execute murderers of black victims less than murderers of white victims, my takeaway would be that we’re not executing enough murderers of black victims.
If the state executes innocent people, that’s a legitimate argument against the death penalty. If the state executes more actual murderers of one demographic than another, that’s an argument for more consistent application, not abolition.Report
If there were a way to determine the truth of a murder charge beyond any doubt, I’d be in favor of eliminating the middleman and just letting the Koches rule by decree. Because a falsehood implies anything,Report
Sorry. I guess I should have prefaced my comment by warning that it will go over the heads of people who don’t understand hypotheticals.Report
Goddam ignorant mathematicians.Report
Here, @brandon-berg gets at Blackmun’s concern, which I’ve adopted.
It’s a little bit confusing because there is both racial bias baked into the justice system, and an intolerably high risk that innocents are being executed seems apparent. Rhetorically, we can separate the arguments from one another and argue for or against different policy responses to them. Practically, we have to deal with all of it at once.
As for the racial bias, I do not think it is at all clear that the demographics of the defendants are cancelled out by the demographics of the victims. Even if murder sometimes deserves death as a punishment, demographics ought not to play a factor at all in the process of separating out the “worst of the worst” from the “merely” awful.
But we can’t drive out bias from a panel of jurors, or from a body of police in the field who make the arrest and gather evidence, or a panel of prosecutors who collectively decide what to do, or a judge who presides over hundreds of cases at any given time. Certainly we can’t do that without giving up other things in the system that we value highly, like an evaluation of the defendant’s person — his demeanor, his body language, his reaction to presentation of evidence, his statements on his own behalf. Or the need to afford him the opportunity to confront a witness, or the need to gauge a witness’s reaction to the defendant — does she recoil in fear, for instance. We certainly aren’t going to do without juries in this process and the other people involved in the process are inherently part of how justice is rendered. All of those things requires actually seeing actual people. And doing that means you’re necessarily going to notice, among other things, the person’s race.
As we know from other sources, it’s exceedingly difficult to drive out unconscious biases from decision-making. To the extent it’s possible at all, it requires sustained, conscious, and overt training. When we put people, particularly jurors chosen roughly at random to represent a cross-section of the community as a whole, through a process in which skilled advocates are intentionally manipulating their emotions and applying rules of evidence to filter the factual information presented, there is so much opportunity for irrational, biased decision-making that the typical result cannot possibly be possessed of only such trivial deviations from fairness that, as a whole, decisions for or against death are just and unprejudiced.
Maybe, back in the days before we’d done all the cognitive science and thought deeply and searchingly about our society’s race relations, people could feel confident that eyewitness testimony was the best kind of evidence available, and the system afforded everyone a fair and equal chance to present their case, and twelve people picked at random would somehow conjure up the goddess of Justice back there in the jury room and be guided by her. But in the modern era, we now know things about ourselves, about the way we think as individuals and as groups, that weren’t known a generation ago.
And because death is an irreversible process, one not subject to remedy if a serious enough procedural or factual error is discovered later on appeal or with the advance of science to better analyze evidence, we cannot morally afford to permit ourselves to err with respect to the stakes of death.
I don’t want to criticize the judges and jurors of ages past. Nor do I want to abandon the idea of punishing the guilty or the use of the judicial process as a means of sorting out those who are guilty from those who are not. I do want us to improve our system of implementing justice in the future. We’ll do better in that respect if we set aside the official pursuit of death.Report
100% opposed to the death penalty but…
Just as a point of order, I believe that in firing squad executions the rifles are aimed at the upper torso/heart, not at the head. Generally speaking, it’s a fast way to go. You can watch firing squad executions of Nazis on YouTube and it seems very fast 90% of the time.
The guillotine seems to be the way to go for speed, but the gore would bother too many people.Report
The opportunity for a Bon Jovi joke here is tremendous. Very surprised that no one’s got on that yet.Report
I was more thinking of The Final Coundown
Works with the DP and the comment counter at 34Report
Perversely, I think having the comment counter is slowing things down, because everyone wants to be #500,000, and that means other people need to comment to get there. Kind of like the way the little old lady waited for Phoebe to “prime” the slot machine before she swooped in to get the jackpot on that one episode of Friends.Report
Interesting thought Burt…..tell me moreReport
No. You first.Report
Oh i couldn’t …pearls before swine…..you know.Report
Do you win something?Report
No shame in my game.Report
Oh man, was this the 500k?Report
The guillotine seems to be the way to go for speed, but the gore would bother too many people.
The guillotine probably is, legitimately, the least painful way to die. (Well, beside carbon dioxide asphyxiation, but that takes a really long time, and raises the specter of doing it ‘halfway’ and the horrible results.) Some people will tell you there’s evidence that people remain conscious for two or three seconds after decapitation, which makes me laugh…how long do they think people are conscious during the current batch of chemicals? Every single form of current death penalty works by stopping the heart, which means it *at least* takes as long for someone to lose consciousness as the head being instantly disconnected from their heart…probably a lot longer, because they’re awake the entire time their heart is being stopped.
And ‘conscious’ and ‘in pain’ are not the same thing…we *know* that with a sharp enough blade, amputation does not hurt for ten or twenty seconds. People have lost limbs and not even *noticed* it. The experience of dying by guillotine would be roughly, ‘Wait, my head just moved, did they just-‘ and that’s it. (And if we were really worried, some sort of novacaine around their neck would make sure they didn’t feel anything, but, again, they shouldn’t.)
We don’t use the guillotine pretty much solely because we want the death penalty to *look* peaceful.Report
beheadings and hangings were public spectacles much loved.Report
Well, beside carbon dioxide asphyxiation…
CO2 asphyxiation gives you 30 seconds or more of increasing panic before you pass out due to the body’s reaction to excess blood CO2 levels. Lots of readily available alternatives where you just pass out without the panic — nitrogen, argon, etc. For a while you could buy suicide kits online that included a small tank of helium. I worked in a rural field lab summers in college that had several big tanks of dry nitrogen. Rigorous protocol for handling them, regular tests for leakage in the pipe system that moved it around. 8-10 people per year die in the US due to industrial mishaps involving nitrogen displacement of oxygen; there’s no evidence that any of these people ever realize what’s happening before they pass out.Report
Right. Your brain has a sensory system to detect and measure CO2 levels. Not so for N2 or other gasses.Report
I meant carbon monoxide, sorry.
But you’re right, anything that displaces oxygen *without* triggering the panic reflex would work.Report
Word is that Emperor Maximilian I of Mexico paid each of his executioners in gold so that they would not fire at his head, that his mother might be able to view him in state.Report
Ever since Brittany Maynard was in the news, this dilemma has baffled me, as there seems to be a trivially easy solution.Report
According to Utah, we bring back the firing squad.
I am really amazed at how much the pro-Death Penalty crowd wants to hang unto the punishment and will do so by tooth and nail. Is there something deep in the American psyche that likes the death penalty? Have we not evolved past Hannurabi’s Code after thousands of years? LeeEsq mentions from time to time that the death penalty is still fairly popular in Europe but is only kept off the books because their criminal justice system is kept away from popular passions and the judicial elite have decided against the death penalty.
I am not so sure though. Europe can produce prisons like this:
Then again, I’ve read that France’s prisons are just as bad as the prisons in the United States. Central and South America has prisons that are more or less controlled by gangs. VICE did a special on a prison in Venzeuela and it was clearly controlled by the Cartels complete with women, kids running around, and what basically looked like a Pool Party BBQ.Report
That was true when the death penalty was abolished, but I don’t think it’s true now.
It seems pretty foolish of death penalty opponents to think that they could actually abolish the death penalty through ankle-biting, though I guess they have here and there but mostly in states where support was already waning. Eventually they’re going to need to endure the indignity of actually getting people to try to agree with them.Report
I fear that my argument won’t be popular for that goal.
Unless the justice rendered is functionally perfect, the judicial process of the state cannot be morally justified in taking life. The state can (perhaps) render good justice, but not perfect justice and to proceed with such punishment we must willfully blind ourselves to significant injustices incurred along the way. Thus, the imperfection of our process bars us from the morally justified resort to capital punishment.
Unless the means of execution is assuredly not cruel and unusual, the judicial process of the state cannot legally implement it. There is no form of execution that can be assuredly not cruel. So there is no physical means by which even a perfectly-rendered execution might be carried out.
I don’t think that’ll be very popular, because it’s politically unpalatable. It requires that we admit that people in the justice system might make mistakes in ways we haven’t anticipated yet.Report
I completely agree with your 2nd & 4th paragraphs.
Part of that is cultural. I grew up in a state where the idea that “No amount of property is worth a human life” was the accepted norm.
I came to tentatively favor the death penalty in limited circumstances later on in life, though now I reject it.
In addition, I reject the notion of life imprisonment. I know all too well that a single moment can change a person’s life. Taking away the opportunity for that change to occur robs us, as a people, of our own humanity, while refusal to acknowledge it is a damnation of ourselves; to which I say, “No, thank you.”Report
The situation in Central and South America prisons are a lot more complicated. Many of the countries do not have the financial resources to run proper prisons. They also have big gang problems. The solution was to guard the outside of the prisons and prevent escape but let the prisoners run the places on the inside. It seems to work relatively well in that the prisoners don’t escape. Rehabilitation doesn’t exist though.Report
There is an inherent contradiction between the prohibitions of the 8th Amendment and the 5th amendments permission to inflict death as punishment. Death rather than the accompanying pain is supposed to be the result of capital punishment. The 8th amendment implicitly bans the infliction of physical pain as punishment. It’s just really difficult to intentionally kill humans painlessly. Death penalty advocates have been trying to for a long time with no success.Report
It’s not *THAT* difficult to kill people painlessly.
It’s just that the people who would be really, really good at that sort of thing tend to not be the type of people who end up in a position to do it.
And the people who end up in a position to do it tend to not be the type of people who can learn to get really, really good at it.
And, for some reason, we quail at the thought of using schedule one drugs in the process of killing people. Lest kids get the wrong idea, probably.Report
I think it’s more accurate to say that it’s relatively easy to kill someone painlessly, but it’s incredibly difficult to not look like the badguy while doing so. Guillotines and gas chambers are where it’s at–but nobody who cheers for the death in our society wants to be compared to the Nazis or the Reign of Terror– so we have the convenient fiction of “we’re more humane than they were” established by a process that looks less like violence and more like medicine.Report
This is how lethal injection came into existence. It was an improvisation to make the death penalty look more humane.Report
Because I’m opening the closet door to my Nrx sympathies, I’d like to share a wonderful Nrx quotation on the topic of the Death Penalty:
Every city in the world has the death penalty for stepping in front of a bus. How do we live with this draconian rule? By not violating it.Report
From various personal injury lawsuits, I can tell you it is possible to get hit by a bus and/or train and survive. Also it is not always the fault of the injured or dead that they were hit by a bus or train.Report
In addition to Saul’s points, I’m not aware of anyone who thinks people who step in front of buses deserves to die. Just because a death happens doesn’t make it just.Report
There are the folks who love to point to people who’ve been hurt or killed and say “evolution in action”.Report
I’m not sure that hammering out a significant concept of justice will change anything about the various draconian rules that are out there that only allow you to escape punishment by not violating them.Report
I don’t think anyone has suggested that people who violate the law should not be punished.Report
Oh, I must not have understood the emphasis on desert, then.Report
Well, there are arguments here that criminals do not deserve to be punished for their crimes with death, notwithstanding that inflicting death may well have been the crime under contemplation.Report
While I agree with what you’re saying, I’d like to point out that my arguments in this particular subthread were being made with the assumption that we were specifically talking about the laws alluded to in the root quotation.Report
I don’t think that’s anything new.
Bank robbers are punished by other than the amount of their theft.
Really, the whole concept of Punishment drives at the heart of one of the biggest problems in criminal justice: That some people will sincerely regret a minor infraction and observe the law from then on without much or any in the way of Punishment, while with others all the punishment in the world isn’t going to make much difference.
The problem comes in separating the two groups.
There’s really just a cookie-cutter system with the dial crank all the way on hard-ass at all times.
The default is: Everyone should suffer. Builds character, and all that.Report
Plenty of people fear going back to jail after serving time. Fear of punishment is strong for some people even if they don’t much care about the law or regret their crimes (other than going to jail).
It is really really hard to impossible to figure out who is sincere when they say they won’t commit another crime especially when they are on trial or facing a PO.Report
That makes sense intuitively, but the evidence doesn’t support that conclusion.
The single most accurate predictor of imprisonment is old; specifically, lack thereof.
Our system is designed to lock people up until they’re too old to commit crimes.Report
Except for three strikes laws, which are designed to wait until somebody is almost too old to commit crimes, and then to lock them up and throw away the key.Report
lock them up and throw away the key.
The overwhelming favorite for how to apply the death penalty seems to be “put them in a small windowless room with a sink and a toilet, feed them 3 times a day, and wait.”Report
@jaybird If the slow march of time is the best technique we’ve come up with to kill Castro, why not use it on murderers, too?Report
Well, I don’t want to get into my “what in the hell do we think we’re doing with prison?” rant, but, seriously, I think we’d do a lot more good (or, at least, stop actively doing so much bad) by abolishing prisons than we would by abolishing the death penalty.Report
The concept of punishment is fundamentally retributive. As a basic matter, to say that one punishes an innocent person is to abuse the term (and that person). The problem with dropping the retributive element of punishment is that once you do that you cease to be punishing. Deterrence can be achieved in at least some cases by inflicting “punishment” on an innocent person so long as most people believe that person to be guilty. Rehabilitation can be achieved in ways that do not even involve losses of welfare on the criminal’s part. After all, counselling and psychiatric therapy would probably be more effective in most cases than prison time, which, even for relatively short durations, hardens the criminals so interred, making them even less fit to re-enter society. If retributivism seems inadequate, then we should own up to our views and label them correctly. You have stopped believing in the concept of punishment. Or maybe you just believe that your state institutions are just not competent to punish. That is what consistency requires.Report
I’ve always thought of the death penalty like the idea of separate-but-equal:
1) It is somewhat hypocritical and immoral for the state to try to do in the first place. The state should not be telling people that everyone has equal rights, and then refute that in its own behavior. The state should not be telling people not to kill other people, and then…kill people.
So I’m somewhat dubious about the death penalty in an ideal world, where we are 99.99999% sure of all convictions and it was all completely fair across the board. Just like I would be rather dubious of two entirely different but *completely equal* educational systems.
2) But even disregarding that, the only way to justify it is if you could do it *correctly*: If separate schools actually *were* equal, if the death penalty was applied fairly.
This, however, is pretty much exactly the opposite of what happens.Report
I’m pretty sure the state also frowns on freelance imprisonment. Is imprisoning criminals also hypocritical? What do you think about the claim that taxation is theft? Putting aside the competence issue, which is a legitimate concern, claiming that there’s no meaningful distinction between murder and lawful execution in response to murder and that the latter is therefore hypocritical strikes me as a very poorly thought-out argument.Report
I’m pretty sure the state also frowns on freelance imprisonment. Is imprisoning criminals also hypocritical?
The state actually is okay with freelance imprisonment, if it is required to stop a crime.
You’ll also notice the same argument applies to killing someone, aka, self defense.
Those are the origins of both the death penalty and imprisoning someone: We could do it to stop criminals from committing more crime.
You will *also* notice that, as imprisonment exists and is pretty fool-proof, there’s not really much need for the death penalty, and it’s something we keep doing because, as prisons did not work well once upon a time, it was the most reliable means of keeping criminals from committing more crime.
And if you really squint, you’ll perhaps notices in these days of electronic monitoring, there’s not *actually* much of a need for imprisonment of most criminals, either, and it’s something we sorta keep doing because it, too, used to be the most reliable means of keeping criminals from committing more crime.
So, *yes*, continuing to imprison most criminals is, indeed, somewhat hypocritical. At least, imprisoning them in prison is somewhat hypocritical.
What do you think about the claim that taxation is theft?
That the claim is stupid?
But I’ll pretend instead you asked: Is it hypocritical for the government to demand money with the threat of violence, when it forbids other people from doing that?
No, because the government is, in fact, perfectly fine with people demanding other people them money or leave their property. It is, admittedly, an analogy, as ‘legal ownership’ and ‘jurisdiction over’ are not *identical* things, but, then again, taxes and theft aren’t the same thing either. (Now, admittedly, there are some interesting fringe cases of the US attempting to tax people *outside* their jurisdiction, but that’s something else.)
Putting aside the competence issue, which is a legitimate concern, claiming that there’s no meaningful distinction between murder and lawful execution in response to murder and that the latter is therefore hypocritical strikes me as a very poorly thought-out argument.
The idea that that state generally should not do something it is not generally willing to let people do is seems like a reasonable moral position…bearing in mind the word ‘generally’. Or, really: Categorical imperative…where we be if such a thing was done by everyone/the government.
And, like the Categorical imperative, it has exceptions in the real world, and gets messy. (We don’t want *everyone* defining which side of the road they drive on, but we do want the government doing that.)
But I don’t see why we would want an exception for *the death penalty*, which is something is, quite literally, completely useless and accomplishes nothing at all.Report
I’m not opposed to the death penalty. I just don’t believe our current system can prosecute, convict, and implement a death penalty case with any sense of justice.
Too many DAs looking to make a name
Too many cops lying
Too many DAs withholding evidence.
As to the method. I like the firing squad.Report
I’m pretty much in the same place. I’m not opposed to the principal of killing someone who commits heinous crimes, but the number of people being freed due to new scientific breakthroughs make me far too uncomfortable that innocents would be killed. Plus, isn’t it a lot cheaper just to give someone life in prison?Report
@mike-dwyer Re: Cost: it certainly is, but there’s a bit of a paradox here. Housing somebody on death row isn’t necessarily more expensive than housing them in regular prison, and in theory if you execute you don’t have to pay that for as long a period of time. It’s only more expensive because of the cost of appeals and litigation, so in theory one could make execution far cheaper by removing various due process requirements and procedural safeguards. But of course then the number of wrongful executions would increase dramatically.
As to the broader point, I’ve always been anti-death penalty for philosophical reasons. But having learned a great deal more about the machinery of death in this country over the past few years, I find the practical case that we cannot execute people with adequate fairness, swiftness, and accuracy far more visceral and compelling. I’d almost say that the best reason to abolish the death penalty is simply to have done with the grotesque debates about how it is administered and who is executed.Report
Apart from all the excellent reasons you put forward NOT to inflict the death penalty, I can’t think of a single, legitimate reason TO inflict it that isn’t served just as well by life imprisonment. Either way, the convicted person spends the rest of their days behind bars and ends up dying there anyway.Report
The main reason I hear from supporters is Justice and Vengeance.
True Justice is impossible- a person can only die once (as Timothy McVeigh callously observed,”…it’s 168-1“) , and we do so as humanely as possible, so they are spared the fate their victims suffered.
As for Vengeance, that’s a hollow victory. It would be better to acknowledge that the communities of the victims can never be made whole, that the scales can never be balanced, than to try and fail, only adding more loss.Report
I disagree. I’m a big fan of vengeance, but not from the State. It has to be from the aggrieved party. So if a defendant earned the death penalty, say for murder, I’d give the family the option of being the firing squad, for example.Report
I’d rather the state be in the business of piracy than revenge, myself.Report
Not my drones, not my pirates.Report
This post makes me remember this classic comment rescue (starring our very own Chris).Report
I had forgotten about that. Damn that case makes me angry. The death penalty is an issue on which I simply cannot understand people who disagree — our conceptual and ethical understandings of the issue are too far removed from each other — so I am surprised I even made that comment in the first place, as I usually try to avoid the anger I feel at pro-death penalty sentiments.Report
What I do not and can’t imagine I ever will understand is failing to make a reasonable effort to prove that someone is guilty before executing them. (And yes, Texas, I’m looking at you.) How can taking a life be treated that lightly?Report
According to this, there were 35 executions in the United States in 2014.
According to this, there were more than 1000 people killed by the police in 2014.
There were more than 35 police killings in 2015 before the end of the day of January 14th.
The Death Penalty is a red herring.Report
Given the disparity in resources expended between a police shooting and a traditionally authorized execution, I don’t think that it is a red herring.
The level of official endorsement that is attached to one is much greater than the level of blessing attached to the other, as well.Report
Depends on whether you see a person as a resource that is expended.
And assuming that the death penalty is justified (just for the sake of argument), I’d also be interested in comparing numbers for the people killed who probably ought not have been.Report
The level of official endorsement that is attached to one is much greater than the level of blessing attached to the other, as well.
A lot of people have misgivings about the death penalty.
People stabbing each other in prison, however, comes with the territory.Report
I’ve been re-watching GoT Season 1 this week and a quote keeps making me thinking of this conversation. “He who passes judgement should swing the sword.” Maybe we insist that the jury also serve on a firing squad?Report
The death penalty is one of the cheapest ones we can assess, in terms of loss of quality of life.
I think that giving someone life in prison is a far worse punishment than simply killing them.Report
Once the death penalty is abolished, I imagine that life imprisonment will be the next thing that we abolish as the arguments for it being cruel and unusual are also fairly persuasive.Report
Persuasive to whom? Your average liberal?Report
Having been listening to Republican talk radio shows for the last two weeks, I kinda feel like you need to put a little oomph on that statement. Maybe do it the way Michael Brown does it on KHOW where you linger a little on the L and then spit out the rest from your diaphragm. At least, vary it up with this:
I got: “All I have to say to a Socialism-indoctrinating bottom-feeder like you is two words: YOU LIE!” which works as a response.Report
Here is an appropriate case for the death penalty. I hope they get it.