w00t!

Posted December 14, 2007 12:25 PM by abi

I'm proud of my state, but I have a correction to your post, Jim.

ALL civilized countries have banned capital punishment. (Yes, I mean that I do not consider any country civilized if it still kills its own people. Yes, I mean that the United States is not a civilized country.)

Posted December 14, 2007 12:32 PM by Xopher

That's wonderful to hear. Welcome, New Jersey, to the blissful state of not committing murder.

Posted December 14, 2007 12:40 PM by Sam Kelly

New Jersey isn't the first. The following other states also have no death penalty:

North Dakota
Minnesota
Iowa
Wisconsin
Michigan
Maine
Vermont
Massachusetts
New York
West Virginia
Alaska
Hawaii

The District of Columbia also has none. Illinois does, but it's currently having a moratorium on executions.

Notice a distinct trend in the above list? No? Perhaps this map will help (it's from before New York ruled its death penalty unconstitutional). Perhaps it's the proximity to a civilized country, I don't know.

New Jersey will be the first state to abolish the death penalty through legislation since the Supreme Court reinstated it in 1976.

Posted December 14, 2007 12:58 PM by Xopher

Interesting.

I used to discuss the problems with capital punishment with some of my more conservative friends. To them, I phrased the objection to capital punishment differently: even if a person thinks capital punishment could be, theoretically, moral*, the real-world application of it is too morally risky** and practically flawed† to be worth the attempt.

Interestingly, they accepted this argument.

*they believe this.
**false positives, or type I errors, for starters, before you get to issues of equity
†for example, the cost to society required to eliminate false positives, before you get to issues of mitigating harm due to false positives.

Posted December 14, 2007 1:03 PM by midori

Yay, New Jersey!!

May Connecticut see this and follow suit ... I *hate* living in a state where capital punishment is still on the books.

Posted December 14, 2007 1:11 PM by meredith

Midori, that argument is why I'm against capital punishment. It avoids the moral questions that make people immediately angry.

Posted December 14, 2007 1:20 PM by Diatryma

Midori @5: a good argument to use on libertarians is "if you're against the state having lots of power over individuals, can you think of any more extreme example than the state asserting that it has the right to put individuals to death?"

(I know at least one libertarian -- a fairly two-fisted one, at that -- who independently came to this conclusion and turned into a strong opponent of capital punishment.)

Posted December 14, 2007 1:26 PM by Charlie Stross

Disclaimer: I am against the death penalty and always have. However, I live in a family whose members have argued with me on the following points:

1. "Sends a message": If you commit a capital crime, you will die.

2. "Never kill again": If you commit a capital crime and are put to death, there is no way they will ever commit another crime.

3. "Pay for them to live in Jail forever": This is the big one they throw at me. I've tried to argue that life sentences in jail are better than capital punishment. Their counter-argument: "Why should I have my tax dollars give them food and keep them warm in winter for the rest of their life when the person they killed won't enjoy that. And why should the family of the person who was killed have to have their tax dollars go to keep a killer in prison?"

So, I'm happy to hear some counter-arguments I can use.

Posted December 14, 2007 1:30 PM by Paul

I've gone back and forth on how I feel about the death penalty all my life but always end up being against it based solely on my lack of faith in our ability to convict the right guy.

Posted December 14, 2007 1:34 PM by Nathan

Charlie-

That argument is explicit in some of the libertarian writings I read back as a teen, so it's nothing new, or, IME rare. I'm not sure when or how a bunch of folks who are essentially anti-tax Republicans switched to calling themselves Libertarians, but I know that anybody who supports an elective, overseas war can't possibly call himself a minarchist or a Libertarian with any degree of plausibility. And yet bunches of folk seem want to try. Instahack comes to mind.

Posted December 14, 2007 1:39 PM by Ulrika O'Brien

Paul 9:

1. Sends a message that even if you don't commit a capital crime you might die, because as DNA evidence has shown, we're lousy at convicting only the guilty.

2. They'll also never be productive for society. See also 1; innocent people executed lose their chance to be the people they might have been, just as the victim of the initial crime does. In addition, society loses their potential contribution.

3. Because of mandatory appeals and so forth, it actually costs the state MORE to put someone to death than to keep them in prison for life. So if they're actually sincere in not wanting to pay for it, they save money if capital punishment is abolished. IME people who say that really don't care about the tax money, though; they usually retaliate with "then we should cut off all those appeals!" Tell them they wouldn't want to live in the society where they can't appeal a conviction or a sentence.

3a. Before I knew the financial facts about LWOP vs. CP, I used to say "Would you kill someone for money? Even if 12 people told you they deserved to die? That's what you're now advocating, because saying that someone should be put to death to save you money is the same thing."

Nathan 10: I've just come down to "Humans killing each other is a bad thing. It should be avoided whenever possible. It may be necessary in the heat of a conflict (to save a hostage or defend oneself), but it's still a bad thing, it's just less bad than the alternative. If the person is in custody, we can avoid killing that person. This is good."

Posted December 14, 2007 1:47 PM by Xopher

1) Go New Jersey. I wish I thought California would follow suit, but I don't see that happening any time soon.

2) I think it's been pretty much demonstrated that it costs more to execute someone than to keep that person imprisoned for life.

3) Thinking like a parent: if I expect my children to understand that killing--except in defense of life--is wrong, I should expect my government to understand that too.

Posted December 14, 2007 1:50 PM by Madeleine Robins

Paul at 9:

1. "Sends a message": If you commit a capital crime, you will die.

Maybe. If you're a black male. Black men are statistically far more likely to be convicted and then put to death for the same crimes as white males.

Also, that premise assumes that it's a working deterrent. Funny thing is: it's not. Especially since the way the system works, it's often decades between the commission of the crime and the execution. Not exactly speedy justice. Murderers don't often keep up on the news, and I bet you dollars to donuts your average killer may not even know if the death penalty is legal in his state. (Well, except for Texas.)

Also, what good does a deterrent do if the rate of false positives is as high as we suspect?

2. "Never kill again": If you commit a capital crime and are put to death, there is no way they will ever commit another crime.

That's true enough. Wouldn't it be better to change things enough that the original capital crime wasn't committed, though? The money saved by not implementing the death penalty (which is not inconsiderable) could be used on social programs, job training, and so forth, for at-risk youth.

Also, see above re: false positives. The prisoner won't be able to go out and repeat the crime he never committed?

3. "Pay for them to live in Jail forever":

I'm pretty sure it costs less to keep someone in jail for the rest of their life than it does to execute them, because of the legal appeals and representation that the government must provide. I do not, however, have citations for this, but I am sure that in some cases this is true, and given that one can't know in advance, one would have to be sure that it was worthwhile to kill them to make the cost effective. See No. 1 above.

Posted December 14, 2007 1:54 PM by cofax

The problem is not just accidental conviction of the innocent.

The lesson of Guy Paul Morin is not that the cops sometimes get it wrong; the lesson is that the cops decide who did it and then frame whoever that is.

This is impossible to characterize as an infrequent occurrence, as DNA information has started to show.

Support for the death penalty drifts into support for allowing a portion of the power-holding class to have people killed for unspecified reasons in a fully licit way.

That's not a good thing.

Posted December 14, 2007 1:56 PM by Graydon

cofax 14: Actually the race of the victim is more determinative than the race of the convicted. Killing a white person is considered a much more serious crime than killing a person of color.

It's still racism, but it works a little differently.

Posted December 14, 2007 1:58 PM by Xopher

Ah! I see it's time to take the "Proud To Be From New Jersey" banner out of mothballs.

Actually I probably should get an NJ flag sticker for my bumper, if only to confuse so many of my neighbors with Brazilian/Portuguese/Azorean adornments on their automobiles.

Paul, my three quick answer to your questions:
1) How many killers stop to consider the punishment for their crime? Some, probably, but I'm willing to bet most don't.
2) I weigh the lives taken by released killers against the verifiable number of innocent people put to death.
3) A proper capital punishment case should be long and expensive to prosecute if you want to make really sure you're giving the right person the most awful penalty. Generally speaking, this is significantly more expensive than life imprisonment.

If you aren't thorough and try to cut financial corners, you end up with innocent people being put to death -- once again, this has verifiably happened even in this era of DNA and other high tech.

Posted December 14, 2007 1:58 PM by Connie H.

1. "Sends a message": If you commit a capital crime, you will die.

Criminals either don't think they'll be caught, or don't care, or even may be attempting suicide-by-judge. Witness the pickpockets of Old-Time London working the crowd at the public hangings of convicted pickpockets.

2. "Never kill again": If you commit a capital crime and are put to death, there is no way they will ever commit another crime.

Yes, if you've got the right guy. It doesn't have any advantages over life-without-parole, and a major disadvantage in that it's hard to apologize to a guy you executed for a crime he didn't commit if new evidence arises. See, for example, the various convicted rapist/murderers who've been released after DNA typing became available and showed that they couldn't possibly have committed the crime.

3. "Pay for them to live in Jail forever":

As if that were some kind of reward? Cheaper in any case than an execution as currently carried out.

Posted December 14, 2007 2:03 PM by James D. Macdonald

Xopher@ #4

I am busy being charmed by the phrase "a moratorium on executions."

Posted December 14, 2007 2:16 PM by Sarah S

Midori, #5: those are the arguments that, finally, persuaded Harry Blackmun; "From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored...to develop...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...I feel...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... "

I hope that, once the death penalty is rejected, we will go on to work on the reliability of the criminal justice system.

Paul, #9: when someone is executed for a crime they didn't commit the real criminal goes free. It's very, very, very hard for prosecutors and police to admit to an error in such cases. What would you suggest be done about that problem?

Posted December 14, 2007 2:18 PM by Randolph Fritz

I am not against the death penalty per se, but I believe that the way it is currently being implemented is severely flawed and virtually useless.

The people we should be putting to death are those who have demonstrated, repeatedly and over the long term, that they either make their living or get their jollies by means of violence against other people -- whether or not they kill their victims. "Professional predators" is the way I describe it. (Personally, I'd like to see extensive white-collar fraud such as Enron also be eligible for the Big Sleep, but that's a lot harder to argue for. Violence, people understand.)

No, I don't have all the details worked out in my head, because I know there's no chance of my opinion ever catching on. So why should I bother?

Posted December 14, 2007 2:19 PM by Lee

Proud NJan here.

I am a lifelong opponent of the death penalty. However, in the week after Hurrican Katrina I kind of changed my mind.

I now support the death penalty for high-level bureaucratic malfeasance that leads to people dying. When the Chinese sentenced the head of their FDA to death, for instance, that strikes me as appropriate and likely to have a very significant deterrent effect. High-level white-color crime involves a lot more thinking than murder does, so there's a much greater chance that deterrence will *work*.

I'm not advocating the widespread or judicial use of the death penalty. In the case of Katrina, Michael Cherntoff and Michael Brown (and Bush, Cheney, the Governor of LA and the mayor of NO) should IMHO have been tried by a jury of their peers -- said peers being former residents of New Orleans' Ninth Ward -- and, if convicted, hung from the I-10 overpass. Brown maybe would have deserved to get off with hard labor.

In Performing the Faith: Bonhoeffer and the Practice of Nonviolence, Stanley Hauerwas suggests that if you *really* want to see the death penalty have a deterrent effect, public executions for insider trading would be the way to go. Hauerwas was being facetious, but that doesn't mean he's wrong -- Kenneth Lay would have been a good place to start.

Getting back to reality-land, the fact that we don't even think of imposing the death penalty in cases where it might actually deter crime is IMHO proof that "deterrence" is a straw man.

Posted December 14, 2007 2:20 PM by Doctor Science

Paul, 9,

Note that the burden of proof is on them to give reasons why these are 'good' arguments.

1. "Sends a message": If you commit a capital crime, you will die.
There is no evidence that the message is ever received. None.
a. The time between the crime and the message is too long.
b. Nobody pays attention.
c. Nobody thinks it will happen to them. This is important because it is true, chances are it will never happen to them, no matter how execution prone the state. Compare the number of executions per year vs. the number of potentially capital crimes.
d. the basic idea here is deterrence:
Deterrence does not work on crimes of passion. Deterrence does not work on wild sociopaths. (It works on some 'tame ones'.) Deterrence does not work on teenagers/young people - or they would wear their seatbelts, not do drugs, etc.
Deterrence does not work on people in desperate circumstances.
Deterrence does not work on thrill seekers.

2. "Never kill again": If you commit a capital crime and are put to death, there is no way they will ever commit another crime.
Moot point, if they are imprisoned for life without parole. You could move directly on to #3.
They won't live again either, which is the significant advantage to life imprisonment: the possibility of undoing harm to the innocently convicted. This has the side effect of making prosecutors more careful about convictions, if their reputation can be ruined for convicting the wrong guy, since the wrong guy has the rest of his life to expend effort trying to clear his name.

3. "Pay for them to live in Jail forever"
This gets complex fast:
a. If you want retribution, then you want life imprisonment, because the murderer remains conscious of their suffering for the rest of their life. Killing someone removes their consciousness, so what good does killing a remorseless killer do?
b. If you want to protect society, using removal, than any form of imprisonment is adequate, and execution is excessive.
c. If you want repentance, then life imprisonment is also preferable, since you have a long period of time for the criminal to repent of their crimes, instead of just being sorry they were caught.
(d. If you want theological vengeance, and you are a Christian, then you're screwed, because they can get forgiveness of sins, but hating and wanting vengeance is a stain on your soul, not theirs.)

'Tax dollars' is just emotional language for "wahh, I don't like the nasty old government takin' money from me."
Response:
Reg: All right... all right... but apart from better sanitation and medicine and education and irrigation and public health and roads and a freshwater system and baths and public order... what have the Romans done for us?
Xerxes:
Brought peace!

More seriously, the real answer is "not every one convicted of a crime is guilty" and "man up and deal with the fact that you already are paying to house criminals, and you're just going to have to deal with the fact that a few fractions of a cent are going to these 'extra' criminals."
Or:
"If you are so worried about paying too much to house criminals, do you suggest we reduce our expenses by trying to catch fewer of them? Or should we try to save as much money as possible by killing as many criminals as possible as quickly as possible?"

Posted December 14, 2007 2:25 PM by midori

Capital punishment is still legal in Colorado (and trust me, we're not all that civilized). Practically speaking, we have like a half-dozen people on death row and haven't actually executed anybody in dog's years. I am personally acquainted with one of the people on death row. While he is not a nice or happy person, I don't believe even he deserves the death penalty.

Posted December 14, 2007 2:28 PM by Jackie L.

While it's nice to be a citizen of a "civilized" country, I'm not sure if we get to keep calling ourselves that when our government has decided to outsource executions to the States. If you haven't heard, Canada's "New Government™" (yes, they call themselves that) is picking and choosing when they will work on behalf of Canadian citizens facing death penalties in foreign countries. Apparently, if the country is democratic enough (and the citizen is distasteful enough) we'll let it slide. Because there are no underlying principles, I suppose.

Of course this is the government where the Public Safety Minister has has stated (before getting into power) that pedophiles and such should be put into the general prison population so the "moral" prisoners can dispense some justice.

Posted December 14, 2007 2:29 PM by Troy Lissoway

This is truly good news.

Posted December 14, 2007 2:34 PM by Fragano Ledgister

It occurs to me that this is actually a great opportunity to study the deterrent value of the death penalty; all we need to do is watch for the murder spike.

If the death penalty really is a greater deterrent than LWOP, then there should be people in New Jersey who were deterred from capital crimes before, but are not now that there is no death penalty. They must surely be saying "Finally! My fear of death kept my no-good neighbour alive this long, but now I can kill! Kill! And be sure that the worst that can happen to me is prison."

Thus, if there isn't a sudden rise in what would have been capital crimes (as all these held-back killers take their 'opportunity'), I submit that LWOP is at least equally deterring.

Posted December 14, 2007 2:35 PM by Chaos

1. "Sends a message": If you commit a capital crime, you will die.

Simply put, it doesn't seem to work. The United States top the homicide rates in the western world by a fair margin. Deterrence through the death penalty may theoretically work in another society; as of now, it demonstrably does not have that effect in the United States.

2. "Never kill again": If you commit a capital crime and are put to death, there is no way they will ever commit another crime.

Recidivism, oddly enough, becomes less likely the more serious your crime is. If you commit manslaughter, you're less likely to commit another manslaughter than a robber is likely to rob again; recidivism rates for murder (i.e., the crime that you are actually likely to receive the death penalty for) are the lowest of all.

Of course, theoretically you could still prevent recidivist murders. The problem is that the death penalty will kill innocent people. At that point, you currently seem to be far more likely to kill an innocent person through the death penalty than getting an innocent person killed by having a murderer go free (and that assumes that the murderer actually received parole for a life sentence).

3. "Pay for them to live in Jail forever".

Right now, the cost involved to keep the number of innocently convicted people to a bare minimum (which is still unacceptably high for my taste) exceeds the cost of keeping somebody in prison for life.

My own concerns extend beyond the pragmatic issues I outlined above, but those are unlikely to resonate with people who consider the death penalty an acceptable form of punishment.

Posted December 14, 2007 2:49 PM by Reimer Behrends

A counter argument to appeal to those intent on revenge.

More guilty people go free when there's the death penalty in prospect. Because juries stretch reasonable doubt beyond reasonableness for fear of making an irrevocable mistake.

I was told this by someone working in the British legal system, who was explaining why the majority of lawyers and judges over here don't want to see hanging brought back.

Posted December 14, 2007 3:01 PM by Juliet E McKenna

"It doesn't have any advantages over life-without-parole [as far as preventing crime]."

This is not quite entirely true. Prisoners do occasionally escape -- for instance, one of my brother-in-law's fellow deputies was shot by an escaped convict who had faked an injury and then overpowered and shot his guard when he was taken to the local hospital.

I certainly do not consider this sufficient reason to support the death penalty at all, but I think it's important to note the flaw in the argument.

(Meanwhile, the other circumstances of that event were such that they probably support other arguments against the death penalty. Even in a state with the death penalty, the fellow was only in for life-with-parole and nearly to a point of getting off for good behavior, as I understand it. And the death penalty did not act as a deterrent, obviously.)

Posted December 14, 2007 3:15 PM by Brooks Moses

As I understand it, the key point to getting this bill passed is that New Jersey will have a sentence of "Life Without Parole."

Do you really want Charlie Manson out on the streets, ever? Granted, that case generated enough publicity that he'll never get out, but there are other folks in jail who are just as dangerous yet less well known.

Posted December 14, 2007 3:16 PM by Chris Gerrib

Jackie L @ 24. Yes, Colorado has the death penalty, but we aren't considered part of the Death Belt because the penalty is carried out so rarely. The Death Belt states (especially Texas) are truly scary because they are also the states that care the least whether they've got the right guy.

Posted December 14, 2007 3:21 PM by Jennifer

Kudos to New Jersey, but how long has it been since they've had an execution? Or even someone sentenced to die?

Posted December 14, 2007 3:31 PM by Steve C.

Well done New Jersey.

Sadly, I've had people over here in the UK (no death penalty for decades, thankfully) suggest that the death penalty is preferable to life because of the well-publicised "miscarriages of justice". Their argument is that if these people had simply been executed they wouldn't have been hanging around and appealing and we would never know that their convictions were flawed. The arguers explain that the finding of these flawed convictions puts excessive pressure on the police and judiciary, which just isn't fair on those nice police officers and prosecutors who failed to follow procedure, ignored evidence that didn't fit their case, fitted people up, or whatever...

Posted December 14, 2007 3:34 PM by dcb

To put just one face (okay, three faces, but only one of them got the death penalty) on the wrongly-convicted issue, it's worth noting that the West Memphis 3 are still in jail despite the new DNA evidence, and Damian Echols is still on death row.

-

I'm strongly against the death penalty, but I confess I wasn't displeased that Romania abolished it just after the death of Ceauşescu.

-

Oh yeah - w00t! Go NJ!

Posted December 14, 2007 3:36 PM by Kristi Wachter

Chaos @ 27:

It occurs to me that this is actually a great opportunity to study the deterrent value of the death penalty; all we need to do is watch for the murder spike.

IIRC (from penology lectures some 25 years ago) this has already been done, notably in the case of New Zealand, which seesawed for a while on abolition. The result was, it made no difference to the murder rate either way.

Criminals are generally more heavily influenced by the detection rate than by the penalty - if you're sure to get caught, even a short prison sentence is pretty offputting - but murderers are very non-typical criminals anyway. Often the victims are partners or family members: this tends to mean low recidivism rates (you've already killed the only person you wanted dead) but also a negligible deterrent effect, given the strength of feeling involved. Consider how common murder-suicides are compared to, say, robbery-suicides.

Posted December 14, 2007 3:37 PM by Andy Wilton

dcb @34: Wow, thanks, I hadn't had my "despairing for humanity" moment for today. (If only because I haven't had time to listen to the news.)

Anyway, hooray for New Jersey!

Posted December 14, 2007 3:39 PM by Jen Roth

Xopher #4: You left Rhode Island off the list. No death penalty here, thankye very much.

Also, w00t w00t New Jersey!

Posted December 14, 2007 4:05 PM by ethan

Jen Roth @ 37

Wow, thanks, I hadn't had my "despairing for humanity" moment for today.

Sorry about that - it's how I felt when I first heard the argument, as well. Actually I still have that reaction when I think about it. alongside other "despairing for humanity" thoughts like what part of "global warming is going to result in mass extinctions, millions of human deaths from starvation etc., mass migrations and probably wars" don't you politicians refusing to legislate to cut greenhouse gases understand?"

Apologies for the off-topic rant.

Posted December 14, 2007 4:17 PM by dcb

>>it sends the wrong message: Killing is wrong, and to prove it we’ll kill you

Reminds my of the case where a guy was executed for killing a judge for ordering the execution of a guy who killed a doctor (whose occupation will be withheld to keep the thread on track.)

We're killing the guy for killing the guy who killed the guy for killing the guy who killed those other guys.

Posted December 14, 2007 4:39 PM by Matt

midori #5: That seems like a pretty sound argument, to me. I'm not sure about the moral side of capital punishment, but the evidence available indicates that we're not all that accurate in getting the actual murderer convicted, and that we probably don't apply the penalty in a uniform way. That's a pretty good reason not to do it.

I'd make much the same argument against pre-emptive war.

midori #23:

I think you may be taking point #1 a bit differently than it's intended--I think the idea is partly to deter murders, and partly to send a large-scale message about what things we consider so evil, we'll execute people for them. Now, I suspect the difference here is whether you think this is a good message to be sending, relative to the one where we just lock someone up forever.

On point #3, most of us don't actually want to see money wasted, so complaining about too much cost seems perfectly reasonable. The question is whether killing inmates is a good way to address the cost problem. It seems to me that, at some times, that was probably the only reasonable solution--if your society is living close enough to the edge of survival, you probably have little choice but to use harsh low-cost punishments (execution, branding, flogging). But at present, we can afford to be a hell of a lot more humane than that. And the benefit of that is partly in recovering from errors.

Another argument I've seen justifying the death penalty is that you could use it to take away the incentive to kill witnesses to a murder (say), by only applying it when you killed witnesses. Again, the rarity, unpredictability, and time until the execution all probably make that ineffective.

One thing most people miss: The unpredictability and time are features of trying to do executions in a careful way. If anything's wrong with the case, the prosecutor/judge/jury ought not to allow a death penalty to proceed, which means that the executions are likely to be rather unpredictable--it's hard to know when you're pulling the trigger, whether there will be a solid enough case to get you sent to death row. And if you want to be careful not to execute the wrong guy, you have to allow time for appeals and new evidence and such.

Posted December 14, 2007 4:46 PM by albatross

Juliet #29:

I wonder if that's true. People on death row get automatic appeals, and I think they often wind up doing multiple appeals. Yet we have these cases where someone is pretty much just proven not guilty based on DNA evidence, *after* the high-profile trial and multiple appeals.

Death row cases are usually only for really nasty, emotionally wrenching crimes. I wonder if that makes police, jurors, judges, and prosecutors less rational, and thus less careful to get the right guy.

IMO, a much bigger issue than the death penalty is the broader question of how accurate our justice system is. My limited anecdotal evidence suggests that most of the people convicted of serious stuff really did it, but the DNA tests that basically prove someone innocent, and cases where it turns out that the evidence was manufactured or someone was trying to (the scandals about the FBI bullet matching techniques, DNA labs, the attempted frame-up of Richard Jewel), and the nature of plea bargaining make me wonder whether a lot of innocent people are sitting in jail cells right now.

Posted December 14, 2007 4:54 PM by albatross

Steve C #33:

NJ hasn't had an execution since 1963. Currently we have 11 people on Death Row.

Oddly enough, one of the arguments people *don't* make in favor of the death penalty versus LWOP is that LWOP prisoners do sometimes still kill, but each other: in 1999 NJ death row inmate Ambrose Harris stomped fellow inmate Robert Simon to death. But that gets into a whole "the American prison system, evidence that this is not a civilized society" rant.

There's no doubt in my mind that both Harris and Simon are/were scum of the earth sociopaths who deserved death, but I always try to remember that "many who die deserve life", too, and it's not our job to deal it out.

Posted December 14, 2007 5:03 PM by Doctor Science

I'm generally opposed to the death penalty for the reasons that Midori @5 gave to his/her friends.
Lately, though, I've been thinking more and more that I might support the death penalty for repeat child molesters. My thinking is that they destroy people's lives and also create new child molesters. Does anyone here by any chance feel that this is a valid argument? I am extremely biased and so not sure if I can trust my own thoughts in this area.

Posted December 14, 2007 5:12 PM by Laura

Does anyone here by any chance feel that this is a valid argument?

Nope.

Posted December 14, 2007 6:22 PM by James D. Macdonald

My own concerns extend beyond the pragmatic issues I outlined above, but those are unlikely to resonate with people who consider the death penalty an acceptable form of punishment.

Which is the nut of the problem. However, everyone's suggestions (thank you) for responses and counter arguments should serve me in good stead during the next fracas I get when the subject comes up again.

Posted December 14, 2007 6:22 PM by Paul

Lee 21: The trouble is that when the death penalty is used for crimes other than murder, people who commit those crimes (if they're smart) kill their victims. Your garden-variety second-degree murderer isn't smart, and neither is your garden-variety rapist, but your systematic professional predator is. It is possible to recover from rape to the point of being glad one is still alive; it is not possible to so recover from being killed by a predator who did so to silence the only witness.

Laura 44: My comments to Lee apply here too. Molested children sometimes recover. Dead children never do. (Now I admit that a not everyone who molests children would kill them even if doing so wouldn't increase their penalty, but some would, and now you're talking about knowingly condemning innocents (the children) to death.)

Posted December 14, 2007 6:32 PM by Xopher

But also, Laura, the same things about wrongful convictions apply. And if you remember the "Satanic Day Care" cases in the 1980s, you know that prosecutors don't give a flying fuck if someone is guilty or not if they can get a conviction are sometimes less than fully scrupulous about the truth. It's even easier to manipulate a child into giving moving, convincing, and totally untrue testimony than it is an adult.

Posted December 14, 2007 6:36 PM by Xopher

Laura @ 44: Not all molested/sexually abused children become molesters/abusers, and they don't all have their lives destroyed. Yes, they are probably damaged and scarred, but who amongst us isn't, in one way or another?

Posted December 14, 2007 7:10 PM by Tania

I have no idea where to find the reference (therefore you should on no account believe me) but I have seen a study indicating that both juries and judges are about 80% accurate. It didn't say, or I don't recall, what fraction were wrongful convictions vs wrongful acquittals.

Posted December 14, 2007 8:10 PM by Trip the Space Parasite

As a social worker who has spent years working with both sexually abused children and sexual offenders--I would absolutely not support the death penalty for repeat offenders. (Not that I support it regardless, but...)

Children are far more resilient than people realize. Abuse, in any form can be devastating and debilitating, but many survivors of abuse can recover and lead successful lives.

That is not to say that many survivors of abuse may wish to see their perpetrators put to death for their crime. But that would not be any significant deterrent for future offenders. As others noted, while many child abusers were sexually abused, not all victims of sexual abuse become abusers themselves. And the reasons why repeat offenders abuse again are far too complex to be deterred by the threat of the death penalty.

Putting a child sex offender to death would stop that child sex offender--it would do nothing to stop more child sex offenders from being created.

(p.s: I apologize for posting and running so often, but I almost never have time to read/respond comment threads during the week!)

Posted December 14, 2007 8:21 PM by Heatherly

Even as pro-defense a lawyer like Alan Dershowitz said that most of the people brought to trial are guilty, and that it's a good thing, because it indicates that the grand jury system is effective.

DA's, like most people, want to win, and they won't file charges unless they believe they can get a conviction, and most people indicted will plea bargain.

And DA's, like most people, hate to admit they made a mistake, as has been shown often enough when the evidence becomes clear that an innocent person was punished.

I live in Texas, and until about 12 years ago, lived in the county which has sent more criminals to death row than any other. I'm against capital punishment, but I run into a brick wall when arguing the reasons why it should be abolished. This is Texas, goldurnit it, and you pay for your crimes, even if you didn't actually pull the trigger -- the "law of parties" exists here, and if you drove the getaway car while your partner was actually the man who killed someone, you can be convicted and executed.

There's a hell of lot of things I like about Texas, but the overwhelming and pathological need for retribution isn't one of them.

Posted December 14, 2007 8:43 PM by Steve C.

There are certain crimes - rare ones - that are so hideous and heinous that I believe that the perpetrator truly deserves death. The trouble I have is defining those crimes so closely that there is no chance of circumstances altering the case so that they fall out of this category, but still attract the death penalty. I don't think such a definition is possible.

That's before I even consider the possibilities that the evidence will be incomplete, the trial unfair, the judge biased, the witnesses mistaken or corrupt, the defence incompetent...

Therefore, the death penalty must not be applied, and the existence of the odd case in which I believe it might be justified is immaterial. I might be wrong; even if I am not wrong, the possibility exists that I am. That is enough.

Posted December 14, 2007 9:30 PM by Dave Luckett

Steve@52: Dershowitz is not a reliable witness; he not only believes in the tooth fairy (the quality of info obtained via torture) but promulgates this belief (the "ticking time bomb" scenario).

Paul: ask them if they've ever been tested as a witness under stress, and if they've seen the reflections on this in True Crime. (I suspect a lot of that class of macho idiots would find it unsettling to see that Eastwood is against them.) I learned in JHS just how unreliable witnesses could be on sudden events with minimal emotional load (a staged mugging at morning assembly); we \know/ people's memories aren't reliable.

Posted December 14, 2007 10:57 PM by CHip

More guilty people go free when there's the death penalty in prospect. Because juries stretch reasonable doubt beyond reasonableness for fear of making an irrevocable mistake.

The inverse is more of a problem. The death penalty is routinely used to force plea bargains on persons who are innocent of the crime for which they are accused. But they know full well that the system makes mistakes, and the death penalty is one mistake that they can't recover from.

The death penalty distorts much more of the criminal justice system than just capital cases; all potentially capital cases are likewise distorted, and it's not clear what sort of corruption this sort of power creates in the prosecutors themselves.

Posted December 14, 2007 11:08 PM by James Killus

CHip @ 54: Do you think that most of the people brought to trial are innocent? (Not talking about presumed innocent here).

Posted December 14, 2007 11:31 PM by Steve C.

I think the debate over capital punishment is a lot like the debate over torture. The real argument is over morality, but that tends to make people uncomfortable, so they argue over effectiveness and accuracy instead. But really: if capital punishment were shown to have a measurable deterrent effect, would you accept it? I wouldn't--my objection is that killing people is wrong; that it doesn't accomplish anything just adds insult to injury.

(Laura @ 44: Sorry, no.)

Posted December 15, 2007 1:07 AM by heresiarch

Heresiarch, my ideas of morality are different enough from the usual that I'm not sure I am debating what most people call "morality". The problem is, I can't persuade anyone that killing people is "wrong" or "right". And neither can you. But we can agree that executing people who are not guilty is a failure of "justice", however, we conceive that.

Posted December 15, 2007 3:18 AM by Randolph Fritz

Huh? I can persuade people that their idea of morality is wrong. How else do you think morality is constructed?

How else do you explain cultural differences in morality?

Posted December 15, 2007 3:22 AM by Keir

Dave Luckett #53: There are certain crimes - rare ones - that are so hideous and heinous that I believe that the perpetrator truly deserves death.

Is there a subset of crimes in that category so extreme that you would feel compelled to enforce your views with public vigilante action, with full knowledge of the likely consequences?

Posted December 15, 2007 4:38 AM by Earl Cooley III

Earl Cooley III #60: No, because I do not trust my perceptions or my judgement to that extent. I might be wrong.

Posted December 15, 2007 9:24 AM by Dave Luckett

Heresiarch #57:

I am pretty damned uncomfortable[1] with capital punishment, but I'm not convinced it's wrong in all cases. So the practical issues (does it really deter, can we really apply it with sufficiently low error rates) dominate. Also, those are questions of fact, so despite the natural bias people have about politically relevant facts, I can see ways we might come to agreement on them. (Though often, you get extremely tangled up statsitical arguments or arguments that look full of holes and obvious objections; social science is just fundamentally harder than natural science, even without biases for political preferences of researchers/reviewers.)

[1] Some issues, like barton, capital punishment, and nuclear deterrence, just ought to make you uncomfortable, as they involve potentially nasty tradeoffs between important values.

Posted December 15, 2007 9:45 AM by albatross

#15 ::: Graydon:

I love that argument, but how do you convey it to people who are very attached to trusting the government?

There are people who argue that life without parole is a harsher punishment than execution. For a long time, I thought they were being disingenuous--they just opposed capital punishment, and were using an implausible argument in the hopes that it would work--implausible because a lot of LWP prisoners are filing appeals, though there are some who'd prefer to die.

I've since come to suspect that at least some of the LWP-is-worse crowd actually mean it. I think it's part of the pro-torture point of view.

I agree with whoever said that we need to do something about the carelessness of the whole justice system. The idea that LWP is better because there are fewer appeals implies that we aren't going to worry as much if someone is falsely convicted so long as they aren't killed.

Posted December 15, 2007 9:59 AM by Nancy Lebovitz

CHip #54:

I have a close friend who is a defense attorney, and she has told me that nearly all her clients are obviously guilty, and that they're usually also pretty consistently in trouble, exhibiting bad judgement all the time, etc. I've read the same from other defense attorneys.

I once had occasion to know a fair number of inmates with serious criminal charges. (I was an employee, not a fellow inmate.) They almost all admitted their guilt, usually ruefully ("I should have left bank robbery to the experts."). My mother and stepfather and father all worked, one way or another, with the criminal justice or juvenile justice system, and they overwhelmingly seemed to think the folks there were both guilty and lowlifes, and that the kids who were in serious trouble were genuinely scary people who were almost certain to end up in prison as adults, despite whatever they could do.

And the folks who get sent to prison often have long criminal records, and I gather they also often have juvenile records. Recidivism rates are also pretty high. Those both indicate that a lot of the guys who go to prison are indeed criminals, not innocent citizens plucked off the streets.

Posted December 15, 2007 10:21 AM by albatross

albatross #62: Some issues, like barton, capital punishment, and nuclear deterrence, just ought to make you uncomfortable

"Barton"? As in Barton Springs and the Save Our Springs Alliance?

Posted December 15, 2007 11:20 AM by Earl Cooley III

Earl @65:
Barton?

He means Burton, as in Tim or Richard.

Posted December 15, 2007 11:22 AM by abi

A few people have touched on it, but I think that in the summary Jim MacDonald left out the big huge reason that capital punishment is being banned in New Jersey:

It's too damn expensive.

All the other arguments - how it doesn't affect the likelihood of violent criminals to commit crimes, how it's barbaric no matter how it's done, how it's administered makes a mockery of the terms "fair" and "just" - those arguments are the same today as they were five, ten, and fifteen years ago.

What's different now is that the state is in a serious, multi-year budget crunch, and it's become obvious that we can't actually execute someone in a timely fashion, meaning that the costs of trying to execute someone easily exceed life in prison without parole. (See the final report from NJ's Death Penalty Study Commission) Since the death penalty was re-instated in NJ in 1982, we haven't executed anyone. The standard seems to be to let the legal process take so long that the prisoners die before being executed by the state. (or to commute their death sentences to life in prison; almost all of the times the death penalty has been imposed, higher courts have reversed it)

If you want to understand NJ politics, realize that the biggest issue to almost all NJ Republicans is their own pocketbook. (I sometimes muse that advocates of gay marriage in NJ should promote the idea that legalized gay marriage would raise NJ property values) The arguments Jim mentioned, while powerful, are only really powerful on the left. To abolish something like the death penalty, you also need at least some support from the right. For that, the pocketbook is a powerful hook. Quoting from the DPSC's report on whether retribution was a legitimate societal interest in keeping the death penalty:

The commission was divided about whether retribution is an appropriate penological
intent. Of the commission members who felt that retribution is an appropriate penological
intent, some felt that this intent is achieved by incarceration, so the death penalty is not
indispensable for achieving it. Other members felt that the desire for retribution is trumped
by the serious problems with the death penalty like cost, irreversible error, and inconsistency
with evolving standards of decency.

Posted December 15, 2007 11:24 AM by Daniel Martin

I've always liked Steve Earle's take on it, that he objects to the state deciding in his name who should live and who should die.

Here in Canada, Robert Willie Pickton was just found guilty with 6 findings of 2nd degree murder in a case where 20-odd more murders may result in another trial. There was almost no baying for blood, and the concern over it being 2nd rather than 1st-degree was abated when people saw he could (and indeed did) get the same sentence. The only real amount of noise made was over how much the trial cost taxpayers.

D

Posted December 15, 2007 1:12 PM by Derryl Murphy

albatross: The simplest way to phrase your argument is to use the "mad dog" comment— you can't cure a rabid dog, and it is a continuing menace as long as it is alive. This would be the Ted Bundy argument— he was one of those special cases that was simply too dangerous to keep around; he provably charmed his captors to the point of multiple escapes, then went on to kill more people.

Nearly all of the people on Death Row do not fit into that category.

My take is this— the death penalty is not an effective deterrent, is not applied equitably, and is often applied to the wrong person (innocent of the crime in question.) I think the death penalty should still be available BUT only if applied in "Ted Bundy" situations, where it is overwhelmingly evident that the person in question is a continuing danger to the community, a likely escape risk, and incapable of reformation.

Since we're not very good at determining that, I wouldn't mind if the death penalty were put on hold and other methods applied, such as the recent case where the suspected Baseline killer was given over 400 years for rape— that pushes parole back out of the way.

Posted December 15, 2007 2:27 PM by B. Durbin

James Killus's point at #55 concerning plea bargains is very powerful, and one I hadn't heard or thought about before.

I think many death-penalty advocates support it because they see the justice system as a means of giving people what they deserve, and they think some people deserve to die. I think that second statement might well be true--there are extraordinarily evil people in the world, and some of those are never going to stop being evil no matter what--but that there's a huge difference between "this person deserves to die" and "we should kill this person". We (meaning the rest of society) are not infallible judges of what people deserve, nor do we escape harm ourselves when we kill somebody.

Posted December 15, 2007 2:33 PM by Matt McIrvin

albatross @64:

Those both indicate that a lot of the guys who go to prison are indeed criminals, not innocent citizens plucked off the streets.

From my own experience, I would generally agree with that. But it isn't quite that simple. I tend to think of four groups: the (sort of) innocent, the stupid, the angry, and the predators.

First off, you have the people who should not be there. A small but real group are innocent, or at least not guilty of what they were convicted of. More common are those who were properly convicted, but whose sentencing (by the judge) or classification (by the prison) were botched. Maybe they should be incarcerated, but for less time and in a lower security facility than they are at. There are any number of inmates that simply need to serve their terms and get out of there, never to be heard from again.

Then there is the largest group in the prison system. One chaplain I know often refers to the difference between lawbreakers and criminals. The great majority of people in lower security facilities, especially women's facilities, are there for serial stupidity. For whatever reason they have adopted a lifestyle that involves often habitual lawbreaking. Drugs play a big role here. These folks often do pretty well inside, but have a difficult time getting through their probation or parole, and will probably be back.

Most programs (educational, vocational, recovery, religious) are most effective with these two groups. That effectiveness is limited by factors such as funding and staffing problems, and gangs. These inmates are not particularly honest, but if not physically threatened are not agressive.

What remains is a sizable minority of agressive inmates, who cause most of the problems inside. The most common form of agression is termed affective agression -- the overreaction to real or perceived threat. In these inmates you often have hairtrigger arousal to some stimulus, with an immediate violent reaction. At the mildest end, you can say they have anger management or emotional issues. There are therapies for affective agression, but I have been told that results vary widely.

Finally, you have a small but very dangerous group of predators. In these persons violent behavior is purposeful, goal directed and not necessarily driven by emotion or reaction to perceived threat. I have read of some sucess using anti-psychotic drugs in some cases. In general, nobody expects these folks to change much.

Complicating all this is the large number of inmates that arrive at prison mentally ill. While we should not use prisons and jails for warehousing the menally ill, in practice we do just that. Gang confict distorts everything inside, as well. People are complicated, and the lines between the groups noted above are fuzzy at best.

Posted December 15, 2007 2:54 PM by Claude Muncey

I've occasionally wondered about the feasibility of LWOP with a euthanasia option, exercisable at the discretion of the convict. "You are stuck here for the rest of your life, but if you wish, we will cut that short." It would obviously require rigorous safeguards to prevent misuse/abuse: psychological assessment to ensure competence (and "wanting to die" would not be evidence of lack of competence), repeated declarations (with witnesses) over some period of time to ensure that the convict was committed to the termination, etc.

Posted December 15, 2007 3:09 PM by Joel Polowin

[Edited repost: me on Usenet about 1.5 years ago]

IIRC, one of Loftus's students estimated a wrongful conviction rate based on poor eyewitness evidence of 0.5%. In a population of three hundred million, that would be approximately 1.5 million wrongfully convicted people. In my view this a tragic mess. It seems to me that the best courses of action involve abandoning the death penalty, treating convicts compassionately, and adding post-conviction checks to the legal system. If we are committed to justice, we must stop treating the conclusions of the criminal courts as though they are the perfect words of G-d, and recognize that our systems are fallible.

For those of you who dismiss this as liberal softness, let me point out that for every convicted innocent, a guilty person goes free. In the famous case of Ronald Cotton, wrongly convicted of rape on the basis of contaminated eyewitness testimony, the man who walked was Bobby Poole, who went on to commit more rapes. In the face of this tragedy, I repeat yet again my plea for a committment to justice, for the accused as well as the victims and society as a whole.

Posted December 15, 2007 3:31 PM by Randolph Fritz

Joel 72: Completely unnecessary. Any inmate who wants to die can arrange it trivially, and without any bureaucracy getting involved.

Or were you positing this for a just society with a sane penal system? I just assumed you were talking about the US in the real world.

Posted December 15, 2007 3:43 PM by Xopher

As it happens, I have been opposed to capital punishment my entire life. As a Roman Catholic involved in these issues, my opposition continues to get stronger. As someone working with prison systems, this particular issue is not theoretical any more. While I hope and pray for the end of the death penalty, I also know that there are some consequences to such a prohibition that we have to face square on, based on the differences in inmates noted above.

There is a substantial number of inmates, especially in a large system like those in California or Texas, that are a serious risk inside to the staff and other inmates. Many of the most agressive inmates are not originally convicted of homicide -- they have been caught for something else first. But inside, they remain violent and unpredictable and find ways to kill while in prison.

This means that we will have a number of very dangerous people that will have to be permanently confined, while minimizing the risk to staff and other inmates, and reducing the risk of escape to a minimum. Now, we can feasibly do this. Properly designed modern maximun security facilities, fully staffed and competently run, have a pretty good record of preventing escape. For example, the biggest system is California's, and it had only 30 or so escapes last year, all of them from minimum security camps.

The problem are the measures necessary to protect other inmates and staff. The primary reason for an extended control unit (an ECU, otherwise known as the SHU, ASU, AdMax, or Supermax) is to hold extremely dangerous prisoners safely. The conditions in an ECU can be extreme, but there are few alternatives based on experience. If you don't want to execute these inmates (and I don't) you do have to live with the existence of ECU's.

There are serious practical and moral issues with these kinds of facilities. Sometimes people are assigned to them inappropriately, and are kept there unnecessarily. The mentally ill will only get worse in an ECU. Services are hard to supply and are very labor intensive. (In other units, inmates often simply walk from their cells to the yard, the chapel, or the infirmary. ECU inmates have to be shackled and escorted by at least two CO's to go anywhere outside their cell) ECU's are inherently expensive and difficult to run well. Run badly they can be close to hell on earth.

Getting rid of the death penalty is supremely important, at least to me, but it is not enough by itself. We have to make sure that our alternative is itself morally acceptable.

Posted December 15, 2007 4:06 PM by Claude Muncey

Randolph Fritz @73

Wouldn't that wrongful conviction rate of 0.5 pct be applied only to those actually arrested for a crime, instead of the population at large?

Posted December 15, 2007 4:37 PM by Steve C.

Thanks Xopher @47&48, Tania @49 and Heatherly @51. I think at the end of the day I agree with you.

Posted December 15, 2007 6:59 PM by Laura

Steve C, #76: you are right, of course. The correct estimate (as of 2003) is approximately 10,000 incarcerated criminals innocent for that reason. The number executed is harder to estimate. Still soberingly high, but not millions.

Posted December 15, 2007 9:39 PM by Randolph Fritz

Here's an argument I haven't seen here; it might be considered Victorian or puritanical, but also owes a lot to an old Pratchett line about the visage of virtue triumphant being more disturbing than that of evil unmasked:

We should be against capital punishment because capital punishment it's too much fun.

In s.f., there's a strain of writing that jumps with glee at the prospect of "spacing" miscreants who murder, rape, make Johngalt cry with their unchecked premises, can't afford air, u.s.w.. In the non-fannish world, some proponents of the death penalty have been known to throw parties celebrating executions. I very rarely hear a death penalty proponent use phrases like 'grim but necessary' or 'admission of failure'....

The pleasure and enthusiasm with which 'let's kill the bad people' can be greeted is a sign that we should distrust it. It is one of a number of such impulses (see also 'Invading countries that don't threaten us in order to improve them', 'Making bad things illegal', and 'Not taxing rich people because their wealth proves how splendid they are') which _might_ well be true but appeal so well that they need to be greeted with scepticism.

Posted December 16, 2007 12:05 AM by Michael Turyn

Michael Turyn #79: I don't really see any way to interpret that argument that doesn't end up with it being "Anything you think is fun is suspect, anything I think is fun is my right."

Posted December 16, 2007 12:35 AM by ethan

Ethan #38: Rhode Island always is left off those lists. It's just too darn small. Do you remember that TV commercial with the unseen girl's voice saying, "It's not an aah-land, bean-brain! It's a road!"

More seriously: The story of John Gordon and Amasa Sprague, or why Rhode Island does not have the death penalty.

Is anyone else here personally involved in this, or is this whole thread a lot of abstract gas? I mean, have you murdered a relative? Do you have a relative who has been murdered? If you had been murdered by a relative, then working the keyboard might be kinda tricky. (If that paragraph seems cold, wait twenty-five years after your own father was murdered, and come back and look at it again.)

My father was shot dead (his obit is online, but I do not want to post that link here; email me if you feel that you need verification) by a man who, well, nobody knows what he had in mind; once he fired the pistol, he was in flight, and was never caught. Even after that, I remember arguing against the death penalty, on the old GEnie boards, basing my arguments on the Gordon/Sprague story linked above. I think I have backups somewhere, but from memory, I recall basing my opposition to the death penalty on the basis that "it's so darn final!" Once the suspect is killed, there's no going back. But if you're sure, and I mean really positive, that you've got the right one, then hang 'em high. The deterrence factor is real: A dead murderer will not commit any more murders. Heck, that's tautological, isn't it? Life without possibilty of parole sounds like it's equivalent to a death sentence, but it really is not. Ask either of the Mikes, Dukakis or Huckabee.

So, to try to come to a conclusion: I am not surprised to see that Governor Corzine is doing the wrong thing. This is the man who told his driver to do 90 on the turnpike, so that he could get to a press conference that he did not even need to attend.

Posted December 16, 2007 2:16 AM by Hector Owen

Hector Owen #81: I mean, have you murdered a relative? Do you have a relative who has been murdered?

There is no effect multiplier due to personal involvement in murder that makes an opinion about capital punishment more correct than that of any random intelligent Making Light luminary. Indeed, one could argue that close involvement can easily affect objectivity in hot button issues like this.

Posted December 16, 2007 2:53 AM by Earl Cooley III

Earl votes for "abstract gas." Verbalciously.

That's one!

Posted December 16, 2007 4:34 AM by Hector Owen

Hector, please stop trying to beat me over the head with your wooden leg.

Posted December 16, 2007 5:08 AM by Earl Cooley III

*wooden leg argument: "I'm right and you're not allowed to have an opinion because you can't know what it's really like".

Posted December 16, 2007 5:13 AM by Earl Cooley III

Earl, isn't an "effect multiplier" one of those nifty gadgets that we see from time to time in the manga illustrations? How could I, with only a wooden leg (just a chunk of oak!) to work with, possibly damage the owner of an such a piece of high-tech equipment?

====

But that's not the point. What it seems to me that you are really objecting to is that someone could be closer to this issue than someone else. My question was sincere, and I'll reiterate it: who has personal experience ?
So if we're going to argue about ... about whatever this is; I think I am talking about the death penalty; you seem to be talking about whether I am allowed to talk about, well, anything, much, since in your view, personal experience counts for less than philosphical stringency. But I know I am missing something; what am I missing? I have opened a new thread just for you over at my blogspot site; please come on over, taste the blinis, tell me what's wrong with my thinking.

Posted December 16, 2007 6:48 AM by Hector Owen

#181 Life without possibilty of parole sounds like it's equivalent to a death sentence, but it really is not. Ask either of the Mikes, Dukakis or Huckabee.

I'm missing something here: Wasn't the problem for the two Mikes (Dukakis and Huckabee) that they did parole someone?

Posted December 16, 2007 8:45 AM by James D. Macdonald

Hector Owen @ 81 -
But if you're sure, and I mean really positive, that you've got the right one, then hang 'em high.

You see, that's the thing.

getting to the level of "really positive" involves a burden of proof that is rarely, if ever, actually available.

Eyewitnesses? Actually remarkably unreliable - police canvas them, but studies have proven time and again that eyewitness testimony is not, in fact, as good as forensics in determining the actual truth.

Honest cops? Unfortunately, the law enforcement system is not actually as interested in justice and facts as it is in results - District Attorneys face re-election, police have budget issues, everyone wants to put a dude behind bars and close the case. Not all (or even many) police are actively malicious in their dealings - but too many are willing to settle on a probable suspect, and then bend the evidence and circumstances to make it fit, rather than re-evaluating as they find new evidence.

Forensics? Even forensics can be tampered with, mislabeled, misinterpreted, or vague and contradictory.

Surveillance evidence, from cameras, etc.? Digital photos are problematic specifically because they are so easily subverted (from simple exploits like changing time/date stamps to Photoshop works of art). We are getting to the point where subverting video media will be easy even for the gifted amateur - and while amateur 'shops may well be easily detected if someone bothers to look, professionals (and you can bet there will be professionals willing to do criminal work, if the Panopticon-lovers get their way) may well be able to pull the wool over everyone's eyes.

In theory, I agree with you (although simple murder would not, in fact, be sufficient in my opinion to warrant the death penalty - it would take a depraved indifference to human life, the sort of crime that is considered patently offensive - the kidnapping and murder/rape of Channon Christian and Hugh Newsome, might be an example. Serial killers, or spree killers - "wild sociopaths" and predators have both been terms used).

In execution (sorry...) however, the death penalty is simply too problematic in too many directions. Too many places were an honest slip-up, or a dishonest framing or shading can result in an innocent going to death, rather than prison.

And your experience, my experience, or anyone else's experience in the matter is utterly irrelevant - although I am sorry for your loss, it does not, in fact, make you specially privileged or knowledgeable in matters of ethical criminal justice.

Posted December 16, 2007 9:26 AM by Scott Taylor

James D. Macdonald #87, I want to write clearly, but sometimes maybe I just don't make it. If you were to ask either of those Mikes "Wasn't that guy [Horton, Dumond, pick your Mike] supposed to be kept away from the general public for a long time?" the answer would be, "That was what the court said … but I knew better, and so in my capacity as Governor, I over-rode the court's judgment." I am paraphrasing the quote, of course. That is to say, it doesn't matter so much if the court gives "life without," etc, if there's a Mike to parole or pardon or commute. So yes, the problem for the Mikes was exactly that. You did not miss a thing.

Posted December 16, 2007 9:32 AM by Hector Owen

Scott Taylor, #88: You are just where I was on this, 20 years ago. I can't argue with you , or even discuss what you said, much. Reading your comment, I hear my own, younger voice.

Posted December 16, 2007 9:37 AM by Hector Owen

Hector Owen #81: I understand your feelings, and had my father been murdered I too would be deeply, permanently angry.

But I can't help thinking that the Innocence Project keeps finding men who've been sentenced to long terms of imprisonment for rape but who definitely didn't commit the crime. Some of them, two recently here in Georgia, have been released after years of imprisonment. In every case that I've read or heard of, the falsely imprisoned person was black. That says something about the criminal justice system, something pretty bad.

Now, if innocent people are executed for murder, what can be done to redress the crime that has been committed? Do we just shrug our shoulders and say 'tough'? What should be done to redress the wrong?

Posted December 16, 2007 9:51 AM by Fragano Ledgister

I have a friend whose cleaning lady's son was charged with homicide because he picked up a gun thrown away by a drive-by shooter, having seen it thrown away because he was one of the witnesses to the shooting. The police had a 'witness' [1] who fingered him as the shooter; they didn't even try to look for witnesses from the bus-stop where the shooting took place: they were all 'brown people'. The lawyer the parents hired did what he could [2], but the prosecution made it clear that even with a mistrial, they'd keep retrying the case until they got a verdict they liked [3]. The kid eventually pled to illegal possession of a firearm (two years in prison [4]).

This is justice?

[1] retired cop from the deep South, looking through a window across a wide street
[2] there was literally no evidence against the kid but the witness-across-the-street and the gun, and I don't know if the police bothered to test for powder residue on the kid's hands
[3] meaning guiltyguiltyguilty - and they were not kidding about retrial ad infinitum
[4] half the time the place was locked down on visiting day, so the parents wasted an entire day getting there and back

Posted December 16, 2007 10:47 AM by P J Evans

Steve C @ 56: Innocent of what? Many critical trials nowadays involve the jury deciding \which/ of a handful or range of charges (which is debatable in itself -- they can compromise on convicting of \something/ rather than deciding whether any of the charges are properly proven) to apply. In any case, how much does it matter whether the "majority" are or aren't innocent? The government proposes to exact some major penalty, even if not the ultimate; the penalty is often severely disruptive to other people, will not undo the crime, and is useful against recidivism only if accurate -- so the government is obliged to be correct. cf the nearby thread on another screwup in the GWoT -- or, more locally, the question of just who threatened who with what and how before Pring-Wilson stabbed Colono to death? (1 overturned verdict, 1 hung jury, more to come.) And I note that the more heinous the crime, the greater the pressure to produce \somebody/ responsible. (cf following discussion.)

As a direct response to what I consider a trick question: I do not have nearly enough experience with the legal system to have a worthwhile opinion, and I won't guess.

Posted December 16, 2007 11:17 AM by CHip

WRT the "wooden leg" argument, I remember Paul Fussell's essay, "Thank God For the Atom Bomb", where he compared articles debating whether Hiroshima and Nagasaki should have nuked. He found that the articles written by men who served in combat (as Fussell did), overwhelmingly supported the bombing, while those who did not serve opposed the bombing.

So I'll play Captain Obvious: personal experiences influence your intellectual opinion. And this is one of the reasons that criminals are tried by the People, represented by the Court, instead of the victim.

Posted December 16, 2007 11:45 AM by Steve C.

I ended up drawing my response to the "never kill again" argument as a (slightly morbid) comic strip.

It's not a serious argument. I think.

More seriously: we often lack perfect knowledge of the past, and never have perfect knowledge of the future. If we kill people on the grounds that they might kill someone in future, we'11 also end up killing some who wouldn't. Inevitably including a few who never actually killed anyone in the first place.

Posted December 16, 2007 12:20 PM by Wesley

I've seen the argument that the death penalty should be used in cases where one is 'really positive' before, and I've come to the conclusion that I don't think that things can ever be that certain. Scott Taylor eloquently gave several reasons why, and others have also provided good illustrations.

The only way I'd consider it is if the people responsible for someone being sentenced to death were willing to bet their lives on it - that, if the executed 'criminal' were ever found innocent of the crime they died for, the prosecuting attorney, the judge, and maybe the jury that convicted him would all be put to death.

This is of course a ridiculous suggestion, in that it would never make the original death right; but it does I think serve to illustrate the problem with being sure enough to have someone killed for a crime - should you not be sure enough to bet your own life (literally) before you claim that degree of certainty?

Would you ever be that certain?

Posted December 16, 2007 12:35 PM by Chaos

Poster "ethan" in post number eighty of this thread has done me a service: I wasn't clear enough. I did not want to imply that I don't think things _I_ consider fun not to be suspect...in fact, whenever I'm confronted by what I consider a moral decision, if I perceive one branch to be especially fun-sounding I consider it my duty to be extra-sceptical of it.

This is not because there is anything wrong with fun qua fun, it's just that options that seem enjoyable (or less unpleasant) sell themselves, so it's up to me to be a tougher customer. (This applies to decisions where enjoying onseself is not a major desired part of the outcome.)

Posted December 16, 2007 1:59 PM by Michael Turyn

Hector Owen at #81 made me laugh hysterically with his reference to the "bean-brain" commercial, which I remember very clearly even though I was very small when it was on, and which was hilarious. And then he proceeded to make me want to gouge my eyes out in the rest of that post and the rest of this thread.

So it's time for a disclaimer. I thought about posting this disclaimer a few days ago when, in another thread, Hector Owen put forward the brilliant and devastating "there can't be global warming because it's snowing!" argument, but decided that I was being a bit hasty in my judgment and that everyone else was ignoring him, so there was no reason I couldn't. But now, with the way he's behaving here, I'm left with no choice. So here's my disclaimer:

Hector Owen is in no way representative of the people of Rhode Island. Or, actually, maybe he is, which would explain evil Governor Carcieri. But he's not representative of the Rhode Island I know and love, and he's not representative of me.

Michael Turyn #97: Sorry if I sounded a bit snippish; my brevity was a result of tiredness, not snarkiness, but that probably means I should have waited until I was less tired to say anything at all. What I meant was that the things you list as being "fun" strike me as horrific and no fun at all (and immoral), where some of the things that seem fun (and moral) to me seem horrific and no fun at all (and immoral) to, say, that one guy on the religious right who's sincere about what he says. "Fun" is subjective enough that I can't see a systematic application of your system (which probably works very well for certain individuals) turning out well.

(I'm also not accusing you of actually thinking the things you listed sound like a blast. I hope I'm making some kind of sense here.)

Posted December 16, 2007 3:00 PM by ethan

Hector Owen #86

Until he stops gaming the thread here, in my opinion, it won't be worthwhile to engage him on the issues; I certainly won't risk sullying my browser cache with the link to his blog he so disingenuously provided with which to target me; I'm quite happy here, under the moderating shield of Making Light's guiding lights.

Posted December 16, 2007 3:28 PM by Earl Cooley III

I've been following this thread for a while, but not posting because most of what I have to say about capital punishment was already being said by other people (and more effectively than I could say it), but there's a recent train of comments in the thread that reminds me of a quote from Oliver Wendell Holmes, Jr.--I think he was quoting someone else, but it's been years and I'm not sure who. It was in Common Law, for what that's worth.

Basically, Holmes wrote (or quoted someo