A Sore Test of a New Conviction

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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73 Responses

  1. Glyph says:

    Thought: Given that I agree that life imprisonment is probably a “fate worse than death” in certain respects, would your opposition to the death penalty be quelled, if a person sentenced to life with no parole were given the choice to “commute” their own sentence to death, via voluntary suicide?

    I’d expect a wrongly-convicted person would decline the proffered hemlock shake, on the hope that maybe their luck will turn around, eventually.

    But might the occasional Tsarnaev – convicted dead-to-rights and possibly guilt-stricken (or perhaps simply unable to face 60 years with no hope of release) – choose to drink it down, and save everyone some time, trouble and money?

    Would offering the convicted man this choice, be morally monstrous of us?Report

    • Burt Likko in reply to Glyph says:

      The wrongfully convicted person might despair of ever being exonerated, and quite rationally choose to drink the hemlock smoothie so as to avoid the prospect of lifetime imprisonment for a crime she did not commit.

      Now, we’ve encouraged an innocent to suicide. I’m even less comfortable with that than I am with the idea of killing someone who admits guilt.Report

  2. Jaybird says:

    Until last week, I thought that Tsarnaev was as good an example we were likely to get of a guy who could test our resolve when it comes to the death penalty.

    I was horribly wrong.Report

    • Burt Likko in reply to Jaybird says:

      Not sure I follow you. Did you mean you suspected Tsarnaev would present a case that would weaken popular support for the death penalty, only it turns out that no, he’s so awful and despicable it strengthens it? Or the other way around?Report

      • Jaybird in reply to Burt Likko says:

        More that I thought that he provided as strong an argument for the death penalty that we were likely to find.

        I mean, it’s easy to find someone who will argue against the death penalty for someone who might be innocent, after all. That’s not an argument against the death penalty as an institution, though. It’s an argument for a better process, better controls, smarter judges, better juries, less corrupt prosecutors, less incompetent defense lawyers, so on and so forth.

        Heck, it’s even possible to come up with a similar argument for Tsarnaev. Hey, we don’t know to what extent he helped with the bombs. Maybe he only had a little to do with it. Maybe he was bullied into it by his brother. Maybe his brother didn’t tell him about the bombs in the first place. Maybe the angry letter he wrote was written in the passion of the moment and wasn’t representative of his true mindset, so on and so forth.

        We shouldn’t use the death penalty against someone who merely deserves to sit in a room until time takes him, right?

        Well… those arguments are clunkers up against Dylann Roof.

        Who, I suspect, will also be sentenced to the death penalty.Report

        • InMD in reply to Jaybird says:

          I think the response to that argument is that it isn’t possible to determine the justness of a policy based on a single data point. Or as I’ve said to my uncle, it’s easy to argue that the death penalty is just when the conversation is about Timothy McVeigh or Osama bin Laden or any person who has committed mass murder against whom overwhelming evidence of guilt exists. Discussing it in those terms removes the death penalty from how it operates in practice. Most capital cases aren’t that easy.

          The question to ask is whether or not allowing the state to (maybe, after extensive legal process has been exhausted) execute Tsarnaev is worth it if the price is to occasionally have the state execute an innocent person. Improving the process isn’t viable. We’ve been trying for decades to no avail. We can keep tweaking it but as long as it remains a human process it will be fallible.

          There’s also the question that LWA raises below about whether or not executing even a guilty person debases us as a society, and whether it’s ever just for the state to kill a person who does not himself pose an imminent deadly threat to others. That might sound a bit abstract, but think about who the state is most likely to execute, and how inconsistently it executes. Is it worth killing Tsarnaev if the price is having an irreversible punishment that isn’t predictably carried out, but when it is we know we’re going use it against certain groups and people more than others?Report

          • Jaybird in reply to InMD says:

            Well, switching the topic to abortion for a second, imagine someone who says “Oh, I’m against abortion.”

            What’s the most likely followup question?

            “But what about if the mother’s life in danger?”, right?

            Or, at least, that’s what it was when I was a kid. I admit that it might be something else, now. “Why do you hate women?” or something. But, assuming that it’s still the question I’m familiar with, I’m sure you see what’s going on there.

            You ask about the edgest of the edge cases and if you can get someone to say “well, of course you should allow *THOSE*”, you are then able to agree that, hey, the person is pro-choice. Kinda.

            So then we look to Dylann Roof. Should he be able to enjoy food for the next 60 years? Should he be able to enjoy books? The occasional pleasures from jerking off? Should he enjoy sunlight for an hour a day?

            If he’s in the general population, should he enjoy the occasional friendship? Should he be allowed the occasional visitor? The occasional care package?

            How many decades of small pleasures would be appropriate?

            Roof provides a great “but what about when the mother’s life is in danger?”Report

            • InMD in reply to Jaybird says:

              I see your point in terms of Tsarnaev (or Roof) being fodder for the pro death penalty argument. That said I don’t see either case as being particularly good fodder compared to any other mass killer. If a person has come to a philosophical conclusion about the wrongness of the death penalty that person has presumably thought about the really nasty people who would he spared execution if it was stopped.

              It’s kind of like arguing against the 4th amendment because occasionally evidence is suppressed and a guilty person goes free. The guilty person walking sucks, much as a murderer getting some simple pleasures denied to his victims sucks. However it’s something we have to suffer lest we enable greater injustice meted out by the government, which is far more dangerous than any criminal.Report

          • Richard Hershberger in reply to InMD says:

            This is essentially my concern about the death penalty. Under our system, a defendant can only be convicted if it would be unreasonable to doubt his guilt. Yet as DNA techniques improve, it turns out that we have convicted the wrong person any number of times. Pointing to an instance where you and I and everyone around us agrees that yes, he really did do it, changes nothing. The counter is to say that we will only apply the death penalty in these slam dunk cases. But what is the ‘slam dunk’ standard of proof? How does that work? I have not seen any sensible proposal.Report

        • Will H. in reply to Jaybird says:

          I have absolutely no problem whatever with clemency toward Tzarnaev, Rooff, or bin Laden.

          Again, as with kindness to animals, it is not a question of the character of the other, or of what manner of differences we might distinguish, but rather it is a matter entirely of the humanity within us.
          My own humanity demands of me that I recognizer that of another.
          Further, it is no hardship.Report

        • Mike Schilling in reply to Jaybird says:

          As a few people have noted, the survivors of Roof’s victims have forgiven him and won’t want him executed. Legally, that shouldn’t matter, but I suspect it will be enough to result in a life sentence instead.Report

    • greginak in reply to Jaybird says:

      The only thing i’ve really seen change peoples view on the DP is when wrongly convicted people are exonerated. Cases like The Tsar get people riled up for more DP since there is no question he did it and what he did was terrible.Report

  3. Michael Cain says:

    If the SCOTUS nixes the three-drug mix, Oklahoma’s new death penalty statute now calls for nitrogen asphyxiation. There’s lots of indirect evidence that inert-gas asphyxiation is reliable and painless, but so far as I know, it’s never been used for an actual execution. What’s the process to get SCOTUS approval of a new technique?Report

    • Same as anything else. Someone needs to be given this sentence, then they need to challenge it by motion in the trial court, get a result, either the defendant or the state then appeals that either through the state court system or before a Federal circuit court, then gets a result, then it gets appealed to SCOTUS. 4-5 years of legal arguments.Report

    • Richard Hershberger in reply to Michael Cain says:

      Nitrogen? Cheap bastards. I demand my execution be by noble gas. Perhaps argon. Or better yet, helium, so my last words can be amusingly high pitched.Report

  4. Christopher Carr says:

    I’m not against the death penalty in theory: I think there are people who deserve to die, whose death does a service to humankind and that Tsarnaev is one of them, nor do I think prison is for the prisoners. There is always the slim chance that he escapes or that a war or natural disaster happens and he’s set free and in that case we would be letting a monster go. Finally, if we’re going to have the death penalty, the President should swing a sword on national television. If we still support it once all the sanitizers have been stripped away, then we can at least say it’s democratic.

    Nevertheless, I am against the death penalty in practice, because in practice we screw procedures up, from time to time – who really knows how often – we execute innocent people, and we try to sanitize the death penalty and feel better about ourselves instead of embracing the barbaric nature of state murder.Report

    • aaron david in reply to Christopher Carr says:

      I had never thought of having the president do it (that would really change who ran and what we think of them!) but otherwise I am right there with you, damn near word for word.Report

      • Christopher Carr in reply to aaron david says:

        I feel the same way about meat-eating. If you’re unwilling to watch a video from a slaughter-house or to kill and animal yourself for its meat, then you shouldn’t be eating meat.Report

      • Christopher Carr in reply to aaron david says:

        I feel the same way about meat-eating. If you’re unwilling to watch a video from a slaughter-house or to kill an animal yourself for its meat, then you shouldn’t be eating meat.Report

    • @christopher-carr

      Finally, if we’re going to have the death penalty, the President should swing a sword on national television. If we still support it once all the sanitizers have been stripped away, then we can at least say it’s democratic.

      Ned Stark would approve.Report

    • I’m against the death penalty, but if it’s going to exist, I support your Ned Stark philosophy.Report

      • Glyph in reply to KatherineMW says:

        If the the show to date is any indication, passing sentence in such a manner is going to result in the triggering of presidential succession protocols in fairly short order.Report

      • Jaybird in reply to KatherineMW says:

        We’d need to include governors for the state-level executions.

        This would make presidential campaigns a lot more interesting. “Of course I support the death penalty! Now, if you’ll pardon me, I have to leave this debate early to cut off the heads of some horrible felons. I’m sure that you, Mr. Senator, and you, Mr. Congressman, will be able to stay here to continue to answer questions.”Report

        • Mike Schilling in reply to Jaybird says:

          When Jerry Brown cuts some guy’s head off, he could say “Drought is coming.” Palin could have said “Winter is here all the time.” Mark Sanford could have said “I’m not, I’m just hiking the Appalachian Trail.”Report

        • Michael Cain in reply to Jaybird says:

          One of the arguments I have occasionally advanced for the use of inert-gas asphyxiation — if we have to have a death penalty, which I oppose — is that DAs seeking the penalty could then be required to open the valve themselves.Report

  5. LWA says:

    Oddly enough, it was the execution of Ted Bundy, that changed my views from pro, to anti-death penalty.

    Not that he didn’t serve it- what he deserved is worse than we can give.

    No, it was the sight of all the people outside, cheering and celebrating his death that made me think of what the death penalty does to us. It makes us into lesser people, to become consumed with the sort of wild blood lust that leads to a worse sort of civilization, and yet is unnecessary, not at all a countervailing weight- nothing good is gained, no value is added here.

    I think of scenes from historical movies, like Elizabeth, where they show the ordinary everyday brutality and torture that was done in the public square- crowds cheering lustily while someone’s belly is ripped open and their guts pulled out while they write in agony.

    What sort of people did this, and how did they treat each other? The misery and brutality we associate with that era wasn’t separate and apart from their use of public executions- it was completely connected to it.Report

    • Burt Likko in reply to LWA says:

      Indeed, a substantial part of my plea in the OP is aimed at one who wishes for the criminal not only to die, but who also wishes for him to suffer.Report

      • Jaybird in reply to Burt Likko says:

        We could make him suffer a lot more if we put our backs into it. Take a wrench to his knees or shoulders before putting him in prison. Make him walk with a limp for the rest of his life.

        Nothing as weird as, say, “enhanced interrogation techniques” being applied to him or force feeding him through his nose or something like that.

        Just a nice chronic injury that he’ll never ever be able to forget because it will always ache and sometimes cause him sharp pains.

        Or is that a bridge too far? (If so, why?)Report

        • Stillwater in reply to Jaybird says:

          Personally speaking, I don’t think it’s on Burt to say where the cutoff actually is, since all he’s committed to at this point is that insofar as a person justifies capital punishment as the imposition of suffering, then a case can be made that life in prison provides more suffering than a painless death. So the answer to your question would have to come from someone who advocates capital punishment on the grounds that some criminals ought to suffer and capital punishment best fits the bill.

          Edited to add: of course, needless to say, apologies if this wasn’t clear, but I’m not trying to speak for Burt here.

          Adding more: Personally, the whole punishment model for capital punishment makes no sense to me for pretty much the exact reasons Burt outlined in the OP, so I’m definitely not the person to try to justify various nuances in the logic.Report

          • Jaybird in reply to Stillwater says:

            I don’t know that the pro-death penalty argument really relies heavily on the whole “make them suffer” argument as much as the “punish them for what they did” argument. There would be some anxiety, of course, from knowing that death was nigh… but the anxiety isn’t the point. It’s a side effect.Report

            • Will H. in reply to Jaybird says:

              Maybe we could cut off his penis and stuff it into the mouth of his severed head, screw up his afterlife.

              The whole screwing up a guy’s afterlife thing may well violate the provisions requiring separation of church and state.Report

              • Jaybird in reply to Will H. says:

                Is that how the afterlife works?

                I may have to tell Maribou to call off the posthumous “cut my body into 51 pieces and mail them to the various capitals” plan.Report

              • Will H. in reply to Jaybird says:

                Not so fast there.

                With a plan like that, no one would be able to come up to your corpse, grab a handful of underpants, and yank really hard.
                That’s sure to screw up a guy’s afterlife, having to go into it with a wedgie and all.

                Besides, I’m pretty sure you have to stuff the severed penis into the mouth of the severed head in order to screw up a guy’s afterlife.
                I know it sounds sexist, but sorta like mesa requiring a feminine article even when referring to the table of a man, it is what it is.
                From what I can tell, it must be harder to screw up a woman’s afterlife, but that’s pretty sexist too.Report

      • Switters in reply to Burt Likko says:

        I mean this with all due respect Burt, but isn’t the suffering one reason you preferred to give him life over death?

        And speaking of the life sentence, have you performed your three step analysis on that? Based on the reasoning you provided for failing the death sentence, it looks like it may not.Report

        • Switters in reply to Switters says:

          You can disregard the first paragraph. I misread your comment aboveReport

        • Burt Likko in reply to Switters says:

          Respectfully, my three-step analysis (and it’s not just mine) tells me that life is more ethical than death.

          It is better from a utilitarian perspective in that it costs less (61 years of maintaining a prisoner alive in prison works out to around $2,000,000 in expense to the public fisc compared to about half again that much in attorney’s fees and judicial resources to conduct an up-to-SCOTUS review of the trial and then an up-to-SCOTUS habeas petition) and still isolates the prisoner from the general public where he is a threat to safety.

          It is better from a deontological perspective because his life remains a qualitative value; not killing him affirms rather than contradicts the proposition than human lives are worth preserving and is therefore at least more easily generalizable than the proposition that some, but not all, lives are forfeit.

          It is better from a virtue point of view because a criminal deserves punishment proportionate to his crime. A severe crime demands a severe punishment. And life in prison with no parole is hardly a light punishment. But to take life exacts a moral toll on those who actually take it; we may very well reasonably expect that those who manipulate the mechanisms of death, at least of their own accord, will pay an emotional price for so doing and thus suffer a diminishment of their fulfillment and happiness — to no apparent good end or effect.Report

          • switters in reply to Burt Likko says:

            Thanks, Burt.

            I get that the three step analysis may result in a finding that a life sentence is more ethical than the death penalty. But viewed independently, rather than as compared to the death penalty, I don’t think a life sentence would pass. Certainly not using the arguments you made in the OP. IF I’m misplacing my focus on that part of the OP, I apologize, but you could substitute “Life sentence” for the “death penalty” in the following two paragraphs and I think you’d be forced to reach the same conclusion. I.e., that a life sentence is not ethically permissible.

            “If the given action is “sentencing for life (vice executing) the morally excerable mass murderer Dzokhar Tsarnaev,” I can’t even get past the first of these three lenses. What good thing is going to happen if we sentence for life (vice execute) Tsarnaev? It won’t bring back his victims. It won’t make us any safer from future Tsarnaevs. Maybe the families of his victims will feel better. I suspect the families of the victims of the Charleston Massacre feel better already, having forgiven the murderer in that awful scenario — an inspiring act of supreme beauty, grace, and nobility. There’s no net utility in killing this slimeball. About the only people who will really, tangibly, and durably benefit are the lawyers who will be paid fees from taxpayers to challenge arcane evidentiary rulings by Judge O’Toole that ultimately will prove to be of minimal consequence to the outcome of his case.

            And we already know that we don’t consistently sentence for life (vice) execute everyone who commits murder, so we have a serious generalizability issue. Can we thrive, flourish, and achieve eudaimonia with Tsarnaev’s life sentence (vice death) rendered at the hands of the state? Maybe, maybe not.”

            I think you arguments in the comment above are better, but at best they only show life would be more ethically permissible than death, but not that it would be ethically permissible. I think if I compared a life sentence to a 20 year sentence using the same method of analysis, the 20 year sentence would “better.”

            Which isn’t to say that I don’t agree with you about the death penalty. I’m just not sure I buy your analysis.

            The other interesting thing to me is that one reason i’ve historically been for life sentence over the death penalty is because like you, I think a life sentence is actually worse from the standpoint of the criminal, in large part due to the additional suffering it would entail. But i’m having a hard time squaring my desire for more suffering with the position that a life sentence is more, rather than less, ethical. My rationalization alarm bells start going off. And I haven’t been able to work it out yet. Maybe that’s why i’m finding myself agreeing with Gerry and Still below.Report

            • Glyph in reply to switters says:

              You are basically right on with why this post isn’t quite hitting squarely for me. The minute you close with saying “life imprisonment may be a fate worse than death” (arguably true in at least some circumstances) it gets real hard to square that with “but life imprisonment is still always better than the death penalty”. These two conclusions appear to contradict one another, and must be squared more explicitly somehow.

              One way to do that is to add one more utilitarian calculation, and say that life imprisonment may be worse than death for the convicted, but it is sufficiently better for the rest of us that the tradeoff works.

              I don’t know if it totally works, since if I was the convicted, I might be begging for you all to kill me, instead of sticking me in a box for 60 years, and “no, we can’t give you that mercy killing, because of what that does to us” rings a little hollow in the face of my “no, LISTEN, I’m telling you, what you are doing to me is intolerably-crueler than a quick death.”Report

              • Glyph in reply to Glyph says:

                Which is why I was originally idly wondering about the moral permissibility of allowing the condemned a choice.

                Maybe that choice need not even be explicitly offered; maybe we just don’t work so hard to prevent them from choosing for themselves; let them keep their shoelaces and belts.

                I realize this sounds cruel, cold and callous; but frankly, so does sixty years in a fluorescent-lighted concrete box.Report

              • Burt Likko in reply to Glyph says:

                I can be even colder than that: if a prisoner sentenced to life prefers death, he’ll find a way to make it happen.Report

              • Glyph in reply to Burt Likko says:

                Probably. But we will sure work hard to try to prevent that, by removing all objects that might be used to that end, and probably forcibly-feeding them if they stop eating; and all that effort feels a little weird in and of itself.

                It feels like we are saying to them “oh no, you don’t get out of the punishment we have in store for you THAT easily.”Report

              • Burt Likko in reply to Glyph says:

                FWIW, I think I may have sublimated the reason I put those arguments in the OP: it’s an appeal to those who would insist that anything but the death penalty is just for a murderer such as Tsarnaev. The harshness of a life sentence is not what actually motivates me personally — it’s a balm I offer to those who would insist on death.

                Also note that my objection to the death penalty, referenced in a linked post announcing my change of heart, is not that death is too cruel a sentence. The Constitution makes clear as a matter of text and law that death is within the scope of punishments that are not “cruel and unusual” and I am not ready to pronounce an execution a cruel thing for a monster like Tsarnaev. Rather, my objection is that death’s irreversability renders it qualitatively different than imprisionment, and therefore the caution incumbent upon us in applying it requires a level of perfection in process, all the way from the drafting of legislation to the insertion of the needle, that is practically speaking unattainable in a system and a culture such as ours.

                With that said, I can see (and normatively, I much appreciate) the weaknesses pointed out here, rigorously testing the reasoning supporting the thesis of the post: “life is worse than death” was a decidedly non-humane note upon which to end the argument.Report

    • Switters in reply to LWA says:

      you sure the death penalty makes us lesser people and consumes us with blood lust. I think our blood lust is responsible for the death penalty. Meaning I’m not sure removing the death penalty would diminish our blood lust so much as it would be a sign that such had already happened.Report

    • Will H. in reply to LWA says:

      I think you just said here the same as I did above, in a much more illustrative manner.

      If it is required of us to become that thing which we most despise in service to our highest ideals, then of what values are our highest ideals?

      We are inseparable.Report

  6. CK MacLeod says:

    One complication to take into account regarding this particular defendant is the likelihood that he will appear on future demand lists from hostage-takers and others. I wouldn’t expect this argument to persuade a principled opponent of the death penalty, especially if also a principled pacifist, but it is one that may have to be overcome, if not now, then eventually. It also necessarily introduces some uncertainty, and greater for him than for the average individual under a similar sentence, regarding the assumption that he will die in prison. We would apparently have 61.3 years, or so, of future American and allied governments, future militants, and future unknown predicaments to add to the equations. 20 years from now, or 40, co-responsibility as a very young man for the deaths of a handful of people may not seem like too much to write off. I believe we’ve written off much, much worse.Report

  7. I’m going to juxtapose this quote

    Isn’t it worth considering that maybe the prospect of spending the rest of his life in prison (he is a very young man), knowing he will never, ever be let out, worse than killing him in a few years after some lawyers have gone through the motions of ensuring that the process used to reach this result was close enough to perfect?

    with the lede for this OP:

    Strong is the desire for vengeance. Pretends to be “justice,” vengeance does.

    But down that path, no benefit will you find.

    How is life without parole, or rather, how is any prison time whatsoever, not in a way “vengeance”? I’m an opponent of the death penalty, but I have a hard time basing my argument on the claim that it is “vengeance.”

    To be clear, I realize the OP lede is not a contract about what’s going to be argued in the OP, so I shouldn’t insist too much on it. But it’s one my axes to grind.Report

  8. Stillwater says:

    I have to admit, it sounds to me somewhat subversive to say that Tsarnaev doesn’t deserve the death penalty. I mean, like you, it just seems like this is a paradigmatic case in which the death penalty is justified. But like you, I have to disagree with that view (and wipe all that icky subversion off after I’m done writing. Yccchh!)

    For some reason, our cultural norms are built in such a way that taking another person’s life – or even worse, having the state do it – is casually justified as a legitimate form of punishment. But as you note, and I agree, the punishment doesn’t seem to fit the crime. He should suffer, yeah? So life in prison would be much worse.

    Yet, I’m sorta disenchanted with the whole punishment thing right now, especially when it means intentionally making someone suffer. I think capital punishment is wrong, but I also think locking someone up for the rest of their natural life as a form of punishment is wrong. I dunno. {Confusion sets in…} I recall that a few days after the Charleston shooting some of the victims loved ones said they forgave Roof. Now, that may seem inexplicable to punishment lovers, but there’s some real truth and personal peace expressed by that sentiment. (I’m not sure I could feel the same way after that short a time, if ever, had I been in their position.) I’m not gonna speak for them, but the idea I got was that he should spend time in jail not as a punishment for his past behaviors, but to get him off the damn streets. He’s a f***ing menace to society.Report

    • Gerry in reply to Stillwater says:

      Perhaps it’s the squishy European in me but I find the whole debate horrendous. I think the death penalty is a stain on society for many reasons and not just because you are eventually going to execute an innocent person. I also think that life without parole is just as cruel. I’m not saying that there aren’t people who need to be locked up forever. That clearly is not true. However, the idea that you cannot revisit a sentence 20, 30, 40 years from now – even if that is to say that the person should stay behind bars – is crazy.

      All these commenters are saying how life without parole would be worse for him. How can you square your opposition to the death penalty on the assumption that the system is not perfect with the fact that the same system sentences many more people to life in prison, many of whom are likely also innocent and who do not have access to the machinery that might come to their rescue if they were on death row.

      All this talk about crap food and tiny cells. Imagine facing that forever without possibility of release if you were innocent. It is cruel, sadistic and immoral as far as I am concerned.Report

      • Stillwater in reply to Gerry says:

        Yeah, that’s pretty much where I’m at on this too. A few months ago Jaybird and I got into a discussion about punishment and how starkly absurd we found the idea that imprisoning someone for the rest of their natural lives actually was. Jaybird said something to the effect that “if kids do something wrong we make them stay in their room for the rest of the night, but we don’t lock em in that room for 10 years.” (I’m probably getting it wrong, but the general idea is right I think.) In fact, it was in that discussion with Jaybird, and as a result of something he said, that I started to think that barbaric, cruel “public floggings” were actually less cruel and more humane than what our current institutions dispense as “justice

        So … I’m opposed to capital punishment (tho I’m not opposed to the death of people who’ve committed capital crimes against others!). And I’m pretty much opposed to the idea of life in prison as a punishment as well. I do tend to think that some people ought to be locked up forever, but that would be limited to people who are fundamentally beyond redemption (I don’t know what a process to determine that would look like). And I think a rehabilitative model of criminal justice ought to apply in just about every situation other than capital crimes in which the perpetrator actually is beyond redemption. (Maybe one way to determine the redemptive potential of a criminal could be based on a rehabilitative model. I dunno.) I guess all I know at this point is that our American love of punition seriously wigs me out.Report

      • Will H. in reply to Gerry says:

        It is cruel, sadistic and immoral

        That is who we are as a people.

        The only thing left to do is to make it into a reality tv show.Report

      • Burt Likko in reply to Gerry says:

        Is there a third option? Tsarnaev is a horrendous criminal. He is an obvious, immediate, and grave danger to innocent people. While I am not an advocate of killing him as punishment, I am just as much not an advocate of dispensing mercy upon such a man. He should be punished, to a degree proportionate to the magnitude of his crimes, without crossing the boundary of cruelty.

        Should he truly reform and be that rare example of someone who benefits from the prison experience, someone who becomes a truly good person who is truly capable of being trusted with liberty and access to society at large once more — well, if that really happens, then I’m sure he’ll be able to convince some future President of that in a petition for executive clemency.Report

      • Kazzy in reply to Gerry says:


        Great point. There is something screwy to saying, “The death penalty is beyond the pale. Besides, life in prison is worse anyhow.”

        I understand the whole idea of homo economicus and incentivizing behavior and whatnot. I just think that if our only means of incentivizing better behavior in folks is through punitive measures, we have a remarkable failure of imagination.Report

    • zic in reply to Stillwater says:

      The death penalty leaves no room for redemption.

      People who do profoundly bad things also have, like each of us, some capacity for profoundly good things; and maybe, more than most of us, some reason to reach for that profoundly good; the only exception I can think of is people lacking any ability to feel empathy for others at all.Report

      • Gerry in reply to zic says:

        In the 1980s and 1990s there was a terrible heroin epidemic in inner-city Dublin and a great fear that the junkies were going to rob you or kill you at any moment. These people were seen as irredeemable and destined, as a whole, for early graves, permanently in thrall to needles and drugs.

        I had the pleasure of doing a study on the long-term effects of hepatitis C on kidney function and the majority of the subjects were people in their 30s and 40s who had acquired HCV through the use of dirty needles. All of these people would have been considered “lost” by society at large and many of them spent time in prison for drug-related offences. What was extraordinary was that almost all of them now were living normal lives with jobs, families and homes and for the most part deeply regretted the behavior of their younger selves. Of course this was a highly selected group who survived that period and were together enough to regularly attend doctor’s appointments. That said, it really opened my eyes.

        We are not the same people when we are 40 or 50 or 60 that we are at 20. I hardly recognize the person I was then. These people talked about their pasts as if they belonged to different people, distant relatives. By the time they reach that age, you aren’t even punishing the same person anymore. I was just as guilty as everyone else for looking at these young addicts a certain way – and in a way it is right – they are dangerous at times and I was once mugged at the point of a needle in Dublin. If I could have caught that guy, I’d say he deserved to go to prison. However, that was 15 years ago now – is he the same person today as he was then? I know I’m not, in many ways.

        In Ireland (and the UK, I think), murder carries a life sentence. This means in practice that you are on parole for the rest of your life. If you are released from prison after whatever period (at the moment in Ireland, on average it is 23 years) you live with the possibility that you can be returned to prison for any reason and at any time for the rest of your natural life. If the prison service deems that you remain a danger after your period of punishment, you can be held indefinitely.Report

        • Burt Likko in reply to Gerry says:

          I would be much interested in learning more about what you discovered working with these addicts in recovery, @gerry . I think you’re right that you’re looking at a filtered group of people, but that may make the insights that much more interesting — why did they start using in the first place, why did they stop, how did they come to stop, how did they (or, did they) regain the respect of a surely-skeptical society, what do they tell their kids… Lots of questions. Lots of lessons to be had.

          If you’re of a mind, that would be a knock-it-out-of-the-park guest post.Report

  9. zic says:

    Not only am I against the death penalty, I am, more and more, opposed to the notion of life in prison; particularly after Norway.

    Thanks for this, @burt-likko

    I sorrow for the families that will have to go through the circus until this is over.Report

  10. Saul Degraw says:

    I am generally opposed to the death penalty. I am also generally opposed to life in prison without parole but that is a no go right now.

    There are always going to be cases and people that test our convictions. For me it is Nazi War Criminals. I can’t say that I found the results of the Nuremberg and Eichmann trials to be unjust. I can’t bring myself to care very much when an old Nazi is put on trial even if they are mainly close to death’s door. The Nazis were pretty effective at what they did:


    There are lots of people out there with no sense of shame at their misdeeds but we need to face this and prove ourselves better. The criminal justice system is how we show mercy to the worse of those around us. This is where we can live up to the ideal of “malice towards none, compassion towards all” the most.Report

  11. Notme says:


    This is justice not just vengence. He got or will get all the due process he is entitled to in our system.Report

    • Burt Likko in reply to Notme says:

      That he will enjoy all the process due him I have no doubt, and I celebrate that fact. As should we all.

      Should the result of that process be, ultimately, his execution, I also agree that this is the result mandated by the law.

      A result that is correct under the black letter of the law and attained after appropriate process meets two necessary criteria for calling that result “justice.” Submitted for your consideration: while procedural correctness and conformity to the positive law are necessary criteria for justice, these two criteria may not be sufficient.Report

  12. Kazzy says:

    I remember when studying the ethics and morality of the death penalty in college, our professor challenged us with this (paraphrased):

    Don’t think about whether the person in question deserves to die. Think about whether we have the right to kill.

    My thoughts are that killing is the absolute last resort, when there are no other means to protect life. Our current society offers us alternatives.

    This brings up an interesting question about war, which I think creates an interesting situation wherein the individual soldier may have the right to exercise self-defense if his life is being threatened, but what right does the government have to put him in that situation when alternatives remain and/or lives are not being threatened?Report

    • Burt Likko in reply to Kazzy says:

      As you may recall, @kazzy , I reject the notion that governments have “rights” at all. People have rights, not governments. Governments have “powers.” Rights are spheres of autonomy inherent to the individual into which the government’s exercise of power is legally checked. So, another way of getting at the same issue (I think, or at least it is from my perspective) is whether an individual has a right to not be conscripted into military service. (A volunteer to military service has, we may assume, chosen to be put in harm’s way if legally ordered to be there.) Note that the circumstances of the draft may alter the moral calculus used to resolve the issue, just as the circumstances of a killing may alter the moral calculus of that situation.Report

      • Kazzy in reply to Burt Likko says:

        Conceded. I’d amend the question to “Ought the government have the power to administer the death penalty?” In a way, that makes it even scarier: We want to give the government the power to kill us?Report

        • Jaybird in reply to Kazzy says:

          Again: police shot and killed more people in the first two weeks of 2015 than the number of people who received the death penalty in *ALL* of 2014.

          (Technically, the first two weeks weren’t even quite over yet when police had shot and killed more.)

          If we’re worried about the power to administer the death penalty, the low hanging fruit isn’t the Tsarnaevs or the Roofs.Report

    • Gabriel Conroy in reply to Kazzy says:


      My own take is that the state has the legitimate authority to kill only those who present an immediate threat to people. When that threat is no longer immediate, the state doesn’t have the legitimate authority to kill. That at least leaves open the possibility for some justified wars.

      All of which is fine, but I have to admit it’s not much of an argument. It’s more of a starting assumption that will probably convince only those who agree.

      (I know I’ve said this all before, so I beg your indulgence as I repeat myself.)Report

  13. Doctor Jay says:

    I am pretty comfortable with the idea that there are people who can’t be let out into society again. Not so comfortable with the policy of killing people. Not because of them, per se, but because of us. Every year we become less violent, less likely to see violence as an acceptable solution to whatever problem faces us.

    I do not forsee a time when there will be no problems for which violence is not an acceptable or even preferred solution. But I welcome the shrinking of that class, and the lessening of violence to solve any particular problem, such as “how should we mete justice upon a person convicted of a capital crime?”Report

    • I think I agree with your first sentence, but I’m still uncomfortable about it because of the conditions in which such people are housed, if the hearsay and other things I hear about prison life are true. I have a hard time thinking of a solution that is politically doable.Report

  14. Burt Likko says:

    Also: this morning the Supreme Court handed down two opinions: the Texas Housing case, holding by 5-4 vote that disparate impact claims are valid in the context of housing discrimination, and the Obamacare case affirming federal subsidies in opt-out states by 6-3 vote.

    I’ll write and post a digest of the Obamacare case, King v. Burwell, today. Between that and the day job, I may have to leave the bulk of this post alone — so my reasoning about the desirability of a life-without-parole sentence for Tsarnaev will have to stand, totter, or fall on its own merits.Report

    • Jesse Ewiak in reply to Burt Likko says:

      I look forward to George P. Bush in his 2032 campaign committing to ‘defending the Affordable Care Act against Democrat’s who want to cut spending on it’, ala Medicare.Report