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December 14, 2007

Go, New Jersey!
Posted by Jim Macdonald at 12:23 PM *

New Jersey is banning capital punishment.

The legislature passed the bill. Governor Corzine has promised to sign it.

The arguments against capital punishment are these: It doesn’t actually prevent violent criminals from committing crimes, it’s barbaric no matter how you go about doing it, there’s no guarantee you got the right guy, and it sends the wrong message: Killing is wrong, and to prove it we’ll kill you. Most civilized countries banned capital punishment long ago.

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Comments on Go, New Jersey!:
#2 ::: Xopher ::: (view all by) ::: December 14, 2007, 12:32 PM:

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.)

#3 ::: Sam Kelly ::: (view all by) ::: December 14, 2007, 12:40 PM:

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

#4 ::: Xopher ::: (view all by) ::: December 14, 2007, 12:58 PM:

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

North Dakota
New York
West Virginia

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.

#5 ::: midori ::: (view all by) ::: December 14, 2007, 01:03 PM:


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.

#6 ::: meredith ::: (view all by) ::: December 14, 2007, 01:11 PM:

Yay, New Jersey!!

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

#7 ::: Diatryma ::: (view all by) ::: December 14, 2007, 01:20 PM:

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

#8 ::: Charlie Stross ::: (view all by) ::: December 14, 2007, 01:26 PM:

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.)

#9 ::: Paul ::: (view all by) ::: December 14, 2007, 01:30 PM:

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.

#10 ::: Nathan ::: (view all by) ::: December 14, 2007, 01:34 PM:

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.

#11 ::: Ulrika O'Brien ::: (view all by) ::: December 14, 2007, 01:39 PM:


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.

#12 ::: Xopher ::: (view all by) ::: December 14, 2007, 01:47 PM:

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."

#13 ::: Madeleine Robins ::: (view all by) ::: December 14, 2007, 01:50 PM:

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.

#14 ::: cofax ::: (view all by) ::: December 14, 2007, 01:54 PM:

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.

#15 ::: Graydon ::: (view all by) ::: December 14, 2007, 01:56 PM:

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.

#16 ::: Xopher ::: (view all by) ::: December 14, 2007, 01:58 PM:

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.

#17 ::: Connie H. ::: (view all by) ::: December 14, 2007, 01:58 PM:

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.

#18 ::: James D. Macdonald ::: (view all by) ::: December 14, 2007, 02:03 PM:

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.

#19 ::: Sarah S ::: (view all by) ::: December 14, 2007, 02:16 PM:

Xopher@ #4

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

#20 ::: Randolph Fritz ::: (view all by) ::: December 14, 2007, 02:18 PM:

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 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?

#21 ::: Lee ::: (view all by) ::: December 14, 2007, 02:19 PM:

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?

#22 ::: Doctor Science ::: (view all by) ::: December 14, 2007, 02:20 PM:

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.

#23 ::: midori ::: (view all by) ::: December 14, 2007, 02:25 PM:

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."
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?
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."
"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?"

#24 ::: Jackie L. ::: (view all by) ::: December 14, 2007, 02:28 PM:

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.

#25 ::: Troy Lissoway ::: (view all by) ::: December 14, 2007, 02:29 PM:

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.

#26 ::: Fragano Ledgister ::: (view all by) ::: December 14, 2007, 02:34 PM:

This is truly good news.

#27 ::: Chaos ::: (view all by) ::: December 14, 2007, 02:35 PM:

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.

#28 ::: Reimer Behrends ::: (view all by) ::: December 14, 2007, 02:49 PM:

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.

#29 ::: Juliet E McKenna ::: (view all by) ::: December 14, 2007, 03:01 PM:

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.

#30 ::: Brooks Moses ::: (view all by) ::: December 14, 2007, 03:15 PM:

"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.)

#31 ::: Chris Gerrib ::: (view all by) ::: December 14, 2007, 03:16 PM:

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.

#32 ::: Jennifer ::: (view all by) ::: December 14, 2007, 03:21 PM:

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.

#33 ::: Steve C. ::: (view all by) ::: December 14, 2007, 03:31 PM:

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

#34 ::: dcb ::: (view all by) ::: December 14, 2007, 03:34 PM:

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...

#35 ::: Kristi Wachter ::: (view all by) ::: December 14, 2007, 03:36 PM:

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!

#36 ::: Andy Wilton ::: (view all by) ::: December 14, 2007, 03:37 PM:

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.

#37 ::: Jen Roth ::: (view all by) ::: December 14, 2007, 03:39 PM:

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!

#38 ::: ethan ::: (view all by) ::: December 14, 2007, 04:05 PM:

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

Also, w00t w00t New Jersey!

#39 ::: dcb ::: (view all by) ::: December 14, 2007, 04:17 PM:

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.

#40 ::: Matt ::: (view all by) ::: December 14, 2007, 04:39 PM:

>>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.

#41 ::: albatross ::: (view all by) ::: December 14, 2007, 04:46 PM:

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.

#42 ::: albatross ::: (view all by) ::: December 14, 2007, 04:54 PM:

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.

#43 ::: Doctor Science ::: (view all by) ::: December 14, 2007, 05:03 PM:

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.

#44 ::: Laura ::: (view all by) ::: December 14, 2007, 05:12 PM:

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.

#45 ::: James D. Macdonald ::: (view all by) ::: December 14, 2007, 06:22 PM:

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


#46 ::: Paul ::: (view all by) ::: December 14, 2007, 06:22 PM:

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.

#47 ::: Xopher ::: (view all by) ::: December 14, 2007, 06:32 PM:

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.)

#48 ::: Xopher ::: (view all by) ::: December 14, 2007, 06:36 PM:

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.

#49 ::: Tania ::: (view all by) ::: December 14, 2007, 07:10 PM:

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?

#50 ::: Trip the Space Parasite ::: (view all by) ::: December 14, 2007, 08:10 PM:

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.

#51 ::: Heatherly ::: (view all by) ::: December 14, 2007, 08:21 PM:

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!)

#52 ::: Steve C. ::: (view all by) ::: December 14, 2007, 08:43 PM:

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.

#53 ::: Dave Luckett ::: (view all by) ::: December 14, 2007, 09:30 PM:

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.

#54 ::: CHip ::: (view all by) ::: December 14, 2007, 10:57 PM:

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.

#55 ::: James Killus ::: (view all by) ::: December 14, 2007, 11:08 PM:

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.

#56 ::: Steve C. ::: (view all by) ::: December 14, 2007, 11:31 PM:

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

#57 ::: heresiarch ::: (view all by) ::: December 15, 2007, 01:07 AM:

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.)

#58 ::: Randolph Fritz ::: (view all by) ::: December 15, 2007, 03:18 AM:

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.

#59 ::: Keir ::: (view all by) ::: December 15, 2007, 03:22 AM:

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?

#60 ::: Earl Cooley III ::: (view all by) ::: December 15, 2007, 04:38 AM:

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?

#61 ::: Dave Luckett ::: (view all by) ::: December 15, 2007, 09:24 AM:

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

#62 ::: albatross ::: (view all by) ::: December 15, 2007, 09:45 AM:

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.

#63 ::: Nancy Lebovitz ::: (view all by) ::: December 15, 2007, 09:59 AM:

#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.

#64 ::: albatross ::: (view all by) ::: December 15, 2007, 10:21 AM:

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.

#65 ::: Earl Cooley III ::: (view all by) ::: December 15, 2007, 11:20 AM:

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?

#66 ::: abi ::: (view all by) ::: December 15, 2007, 11:22 AM:

Earl @65:

He means Burton, as in Tim or Richard.

#67 ::: Daniel Martin ::: (view all by) ::: December 15, 2007, 11:24 AM:

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.
Expect Republicans who voted for this death penalty ban to run all over the "it's too expensive" argument to the exclusion of anything else.

#68 ::: Derryl Murphy ::: (view all by) ::: December 15, 2007, 01:12 PM:

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.


#69 ::: B. Durbin ::: (view all by) ::: December 15, 2007, 02:27 PM:

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.

#70 ::: Matt McIrvin ::: (view all by) ::: December 15, 2007, 02:33 PM:

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.

#71 ::: Claude Muncey ::: (view all by) ::: December 15, 2007, 02:54 PM:

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.

#72 ::: Joel Polowin ::: (view all by) ::: December 15, 2007, 03:09 PM:

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.

#73 ::: Randolph Fritz ::: (view all by) ::: December 15, 2007, 03:31 PM:

[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.

#74 ::: Xopher ::: (view all by) ::: December 15, 2007, 03:43 PM:

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.

#75 ::: Claude Muncey ::: (view all by) ::: December 15, 2007, 04:06 PM:

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.

#76 ::: Steve C. ::: (view all by) ::: December 15, 2007, 04:37 PM:

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?

#77 ::: Laura ::: (view all by) ::: December 15, 2007, 06:59 PM:

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

#78 ::: Randolph Fritz ::: (view all by) ::: December 15, 2007, 09:39 PM:

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.

#79 ::: Michael Turyn ::: (view all by) ::: December 16, 2007, 12:05 AM:

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.

'Killing bad people' can sound right and good to an awful lot of people, and to bits of the rest of us, especially to me-who-is-not-better-than-these.

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.

#80 ::: ethan ::: (view all by) ::: December 16, 2007, 12:35 AM:

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."

#81 ::: Hector Owen ::: (view all by) ::: December 16, 2007, 02:16 AM:

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.

#82 ::: Earl Cooley III ::: (view all by) ::: December 16, 2007, 02:53 AM:

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.

#83 ::: Hector Owen ::: (view all by) ::: December 16, 2007, 04:34 AM:

Earl votes for "abstract gas." Verbalciously.

That's one!

#84 ::: Earl Cooley III ::: (view all by) ::: December 16, 2007, 05:08 AM:

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

#85 ::: Earl Cooley III ::: (view all by) ::: December 16, 2007, 05:13 AM:

*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".

#86 ::: Hector Owen ::: (view all by) ::: December 16, 2007, 06:48 AM:

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.

#87 ::: James D. Macdonald ::: (view all by) ::: December 16, 2007, 08:45 AM:

#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?

#88 ::: Scott Taylor ::: (view all by) ::: December 16, 2007, 09:26 AM:

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.

#89 ::: Hector Owen ::: (view all by) ::: December 16, 2007, 09:32 AM:

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.

#90 ::: Hector Owen ::: (view all by) ::: December 16, 2007, 09:37 AM:

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.

#91 ::: Fragano Ledgister ::: (view all by) ::: December 16, 2007, 09:51 AM:

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?

#92 ::: P J Evans ::: (view all by) ::: December 16, 2007, 10:47 AM:

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

#93 ::: CHip ::: (view all by) ::: December 16, 2007, 11:17 AM:

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.

#94 ::: Steve C. ::: (view all by) ::: December 16, 2007, 11:45 AM:

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.

#95 ::: Wesley ::: (view all by) ::: December 16, 2007, 12:20 PM:

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.

#96 ::: Chaos ::: (view all by) ::: December 16, 2007, 12:35 PM:

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?

#97 ::: Michael Turyn ::: (view all by) ::: December 16, 2007, 01:59 PM:

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 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.)

#98 ::: ethan ::: (view all by) ::: December 16, 2007, 03:00 PM:

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.)

#99 ::: Earl Cooley III ::: (view all by) ::: December 16, 2007, 03:28 PM:

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.

#100 ::: Mary Frances ::: (view all by) ::: December 16, 2007, 03:46 PM:

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 someone else writing) that criminal law is to the desire for vengeance as marriage law is to sexual desire--in context, I believe, meaning that it's a way of legitimizing or perhaps just containing that desire within the social order. In any case, the relationship between--and the difference between--"justice" and "vengeance" is something we need to remember when discussing capital punishment, I think. It's there, and it's something we need to be aware of.

On both sides of the argument, I suspect, but certainly on the "anti-capital punishment" side, because if we don't acknowledge that desire for vengeance we probably aren't going to get very far . . .

#101 ::: abi ::: (view all by) ::: December 16, 2007, 03:48 PM:

Earl Cooley @99:

To whom are you addressing this comment? I can see that it is about Hector Owen, but I confess that I am at a loss to identify the addressee.

Because you weren't trying to be rude in the very same comment with which you take refuge under Our Benevolent Regime™, were you?

#102 ::: Earl Cooley III ::: (view all by) ::: December 16, 2007, 04:06 PM:

Abi, I posted in my #99 as if Hector Owen wasn't there because ML has no "ignore" feature that I can use; I viewed the announcement that he had set up a thread on his blog about me as an unfriendly act.

I suppose I should probably have typed "re:" at the start of the post, to make it more clear that I was talking about him to the rest of the people participating in the thread.

I anticipate an "oh noes, i r being ignored" volley from him to further brighten my day. Or, he could pleasantly surprise me by honestly engaging in the issue at hand.

#103 ::: Serge ::: (view all by) ::: December 16, 2007, 04:22 PM:

Mary Frances @ 100... Holmes wrote (or quoted someone else writing) that criminal law is to the desire for vengeance as marriage law is to sexual desire

Did you know that the French word for gallows is potence?

#104 ::: abi ::: (view all by) ::: December 16, 2007, 04:33 PM:


I'm not stupid, and I have toddlers. I know very that you're baiting Hector, since simply really ignoring him wouldn't actually get a rise out of him.

As I said before, are you really doing this and taking refuge "under the moderating shield of Making Light's guiding lights"? I'm impressed by something, but it's not your logic.

I interpreted the link to the thread on his site (which was empty last I checked) as an invitation to discuss the matter with you. You could have just said no.

#105 ::: Earl Cooley III ::: (view all by) ::: December 16, 2007, 04:59 PM:

On Hector's blog, I have no expectation of fairness like I do here. That's the "shield" I was talking about; I don't expect any special privilege here.

However, if I am punished for my way of opposing Hector's fallacious debating style, will others take up that cause for me? I'm not trying to bait him, I'm trying to get him to let go of his dishonest debating tactics. If you think that's a lost cause, I'll refrain and leave the matter to your discretion.

#106 ::: abi ::: (view all by) ::: December 16, 2007, 05:22 PM:


On Hector's blog, I have no expectation of fairness like I do here. That's the "shield" I was talking about; I don't expect any special privilege here.

Wise of you; you won't get any. Which is why, in the spirit of fairness, I'm telling you to knock it off. You're using tactics that tend to get in the way of reasoned discussion.

However, if I am punished for my way of opposing Hector's fallacious debating style, will others take up that cause for me?

Martyr much? The factual discussion is going just fine. There are a number of interesting views being discussed. I'd like to keep it that way.

I'm not trying to bait him, I'm trying to get him to let go of his dishonest debating tactics. If you think that's a lost cause, I'll refrain and leave the matter to your discretion.

What I want you to do is to trust the community to come to a fair view of both the participants in the conversation and the comments they make. These are smart people, capable of seeing through any number of rhetorical tricks and unfair arguments.

Make sure they're not seeing through yours. Stick to the straight and narrow, please.

#107 ::: Xopher ::: (view all by) ::: December 16, 2007, 05:24 PM:

A few years ago I made the point, widely misunderstood at the time, that I would personally like to torture Osama bin Laden to death.

My point was that that's exactly WHY I can have no part in any putative trial of ObL or any input into how he is to be treated. Murder victims' families want to do terrible things to the killer, or to the person they THINK is the killer. They must not be allowed to have any part in the process of arresting, jailing, or determining the guilt or innocence of the accused killer, and their input into the sentencing should be limited to victim-impact statements.*

*I'm not sure how I feel about those, but I know I don't want them to have any MORE input than that.

#108 ::: Madeline F ::: (view all by) ::: December 16, 2007, 05:34 PM:

#104 abi: While Earl is clearly baiting Hector, Hector's "invitation to talk on my own blog" is not strictly an invitation to discuss, particularly in light of the rest of his comment. It can be a subtle attack, with shades of "No one else here is interested in your stupid little argument, and I'm big enough to spare them" and "I attacked here but I'm not willing to face the consequences here, so come onto my own personal ground if you're man enough to fight me". Just saying no leaves one open to the boorish/wimpy subtexts; "no, you troll itching to ambush honest debaters" doesn't. There are of course politer ways of getting around the issue, and I'm not condoning either side; just saying that there's more to it than you may have noted.

#109 ::: abi ::: (view all by) ::: December 16, 2007, 06:01 PM:


For the record, my comments to Earl were not meant in any way to endorse Hector's behavior.

But I think the other comments here show that the community has come to a fair view of him. His arguments and his very real pain are being addressed. His tactics are productive of more irritation than anything else; they're hurting any credibility he might have gained with a more reasonable approach.

I'll take your reading of the link on board, but I stand by my request that Earl not bait Hector. And vice versa.

Now can we discuss the matter at hand?

#110 ::: Michael Turyn ::: (view all by) ::: December 16, 2007, 06:28 PM:

The idea of justice being the (to paraphrase) domesticated version of vengeance, much as marriage is supposedly the domesticated version of sexual desire, is an interesting one. Maybe a more accurate term that "domesticated" would be "sociosyntonic"---I can't remember the term for a disease which passes from a very lethal form to one with which we can co-exist, at least for awhile (syphilis seems to be the canonical example of this).

In any event, this vision of justice would imply to me that people will not feel satisfied with a justice system which is too lacking in vengeance.

At this point, I remember an argument made for the raft of repressive and extra-contitutional measures accreted since 11-09-2001 (a.k.a., The Day Rudy Met His True Love) that basically said, "We need these measures to prevent another attack, and if we suffer another attack the Masses will cry for out-right Fascism, so if you love Liberty you must resign yourself to these changes."

It would seem to me that by the same reasoning, we _need_ the death penalty for people to respect the justice system, perhaps because we Americans are an anti-authoritarian people imbued with little capacity for respecting anything that can't kill us, so even Good Liberals should support capital punishment in some cases so that our folk get their vengeance fix.

The reasoning in the case of terrorism and liberty is suspect because it begs the question of whether these measures are worth anything at preventing terrorism; in the case of the death penalty, the suspect truth-claim is the whole "we thirst for blood" claim (someone graph sales of vampire books vs executions in Texas since 1975, please).

I think we can be better than that, for a value of "better" with which I agree...the discussion of the merits of competing ethics implicit in possible justice systems should probably not take over this thread, so I'll just say that I acknowledge that others don't agree with this, meaning that they will come to other conclusions. I don't know if all political opinion is temperamental in origin, or just most of it.

(Sorry my posts are somewhat long; maybe it's a fever, cabin- and/or brain-.)

#111 ::: James D. Macdonald ::: (view all by) ::: December 16, 2007, 06:38 PM:

Criminal law :: vengeance as Marriage :: boinking?

Maybe. Marriage is about a whole lot of things, boinking being only one of them (and perhaps not the most important one). In the same way, criminal law is about a whole lot of things, vengeance being only one of them, and perhaps not the most important one?

I can see it.

#112 ::: abi ::: (view all by) ::: December 16, 2007, 06:40 PM:

By the way, Mary Francis' comment 100 is excellent, perceptive, and should not be overlooked by anyone skipping the meta-discussion that immediately followed it.

if we don't acknowledge that desire for vengeance we probably aren't going to get very far...

I think that the victim impact statement was an attempt to address that, though it was described less as a desire for vengeance than a desire for input.

The only excuse for vengeance is if it makes the victim whole again. The problem is that returning to wholeness, or finding closure, is not an external process. It's an internal one. And though external events can help, the nature and degree that a given external event can help varies wildly.

There is a concept in law that you take your victim as you find him - that you are as guilty of murder if your victim is a haemophiliac and dies from a cut as if you had to stab him repeatedly. Does that extend to the family as well, so that the murderer of an extremely fragile family would have a harsher penalty than that of a forgiving one, or an isolated person*?

How much responsibility rests with the victim to seek closure? There is often a temptation to hold onto the status of "victim"; it is a form of power and validation for someone who has lost a lot.

* This, of course, happens in practice, when the murderers of prostitutes and indigents are given lesser sentences than the murderers of more "respectable" folk.

#113 ::: albatross ::: (view all by) ::: December 16, 2007, 10:07 PM:

B Durbin #69:

That wasn't an argument for the death penalty, just my own thinking in trying to reconcile two different chunks of data:

a. There's a lot of evidence that the criminal justice system is a pretty "noisy" process--that confessing or being convicted doesn't imply anything like certainty that you're actually guilty.

b. There's also a lot of evidence that most of the folks in prison are really criminals.

I don't have the same blanket moral issues with executions that many here do, but I don't think the death penalty is good policy for us, in general, for reasons I outlined above.

#114 ::: albatross ::: (view all by) ::: December 16, 2007, 10:25 PM:

Hector #81:

I don't have any personal experience of the kind you describe, and I'm sorry you do. It seems to me that your experience is relevant to the question of what the effect of these penalties is on the victims' families. I'm not sure how to weigh that against efficiency in deterring future crimes, cost, effect on the criminals' families, etc.

I can't see how your experience would be relevant to assessing how often the wrong guy gets the lethal injection, or how much that affects the decisions of other people about whether or not to kill someone, and those both seem like big practical issues in determining what makes sense here. If we never get the wrong guy, and every execution convinces dozens of armed robbers to not load their guns for fear of execution, the death penalty might look like a good policy. If we occasionally get the wrong guy, and executions are rare and unpredictable enough and far enough away in time from the murders that they have very little effect on any future murders, then the death penalty starts looking like pretty bad policy. I am no expert, but it seems to me that we're closer to that second situation than the first.

At present, most murderers don't get the death penalty even in states (frex Texas) that execute a lot of people. That means that most victims' families will not get whatever benefit is available from having the murderers executed. If there is a large value in executing murderers for this reason, we'd have to do it for most murders, right? It seems like this would inevitably increase the error rate, and there's evidence from the use of DNA tests to basically prove several people innocent that we already have a noticeable error rate. (Without DNA tests, those folks would presumably have been executed sooner or later.) Killing many innocent people seems like a *really* high price to pay to benefit the families of the victims, to me.

#115 ::: Dave Luckett ::: (view all by) ::: December 16, 2007, 11:34 PM:

Most of the people in jail are indeed criminals. But we have had at least three cases here in this backwater over the last twenty years or so in which people were convicted of serious crimes, but the evidence was shown to be concocted, or contrary evidence was suppressed by the Prosecution, or the police interrogation techniques and record-keeping were, to say the least, faulty. The convictions were quashed after the accused spent lengthy times in jail. Compensation was paid, which is inadequate, but at least there was someone to compensate.

One of the faulty prosecutions was for wilful murder - murder one, whatever the worst crime in the calendar is - and the accused was not vindicated until twelve years later. If we'd had capital punishment here, he'd be dead, and a pardon would have been effectively meaningless.

That one case - that, on its own, with nothing else whatsoever - is enough to convince me.

Yeah, Martin Bryant, the loony who killed thirty-four people in Port Arthur, is in jail, and he'll never be released. There's no conceivable way to dispute that he did the actual killing, and by the legal definition, he's not actually insane, nor was, on the day. Or was he? Who knows? Not I.

He's in jail. He's going to stay there. That's enough for me.

#116 ::: Marilee ::: (view all by) ::: December 17, 2007, 12:24 AM:

For me, it's not if we're sure enough about the murderer, it's that we shouldn't be killing people. Locking bad people up for the rest of their lives is acceptable.

#117 ::: heresiarch ::: (view all by) ::: December 17, 2007, 12:40 AM:

Randolph Fritz @ 58: "The problem is, I can't persuade anyone that killing people is "wrong" or "right". And neither can you."

What Keir said at 59. Of course people can change their moral views--they do so all the time. (They just don't like to admit it.) If so few people are convinced by moral arguments, perhap it is because so few dare to make them.

albatross @ 62: "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."

I agree that their relatively empirical nature makes them much easier to get a grasp on. They're more accessible. But the thing is, even it were proven that it really deters, and we came up with psychics who could determine guilt with 100% accuracy, I still wouldn't believe that death is an acceptable punishment. Just as I don't believe that torture can ever be right, even if it worked. They violate such important moral principles that even if they did work as advertised, they still wouldn't be acceptable.

Let me put it this way. I do not deny in any way that sweatshops and child labor are in fact exceptionally effective ways of making money. But I don't care--their efficiency or lack thereof is utterly irrelevant in the face of their profound immorality. I would laugh in the face of anyone who tried to defend child labor based on its money-making capability. So I feel similarly about attempts to attack capital punishment on the grounds of efficiency: if the facts werein favor of it, they wouldn't dissuade me; so why should I expect them to sway anyone else?

#118 ::: heresiarch ::: (view all by) ::: December 17, 2007, 12:59 AM:

Hector Owen @ 81: "Is anyone else here personally involved in this, or is this whole thread a lot of abstract gas?"

When the State kills, it kills in our name. That makes us intimately involved whether we've had a loved one killed, served on a jury for a capital crime, or whatever.

Also, you're being a punk. Come on, "If you had been murdered by a relative, then working the keyboard might be kinda tricky"? Then you demand to be treated seriously. Cognitive dissonance much?

@ 86: "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"

No. It just doesn't count for anything more. You seem to be under the impression that, because none of us has had a relative killed, our opinions are "a lot of abstract gas." (Yours, presumably, are quite concrete.) Earl merely pointed out that that is a bunch of bullshit--a call for special consideration. You are not being oppressed just because we refuse to give you the special treatment you demand.

#119 ::: Mary Frances ::: (view all by) ::: December 17, 2007, 01:36 AM:

Serge @ 103: Did you know that the French word for gallows is potence?

No, I didn't. That's wonderful. Is it the same root? I know that the French word for "potency" is "puissance," or something like that, but I'm sure there are a whole bunch of synonyms . . .

Abi @ 112: Thank you.

#120 ::: Randolph Fritz ::: (view all by) ::: December 17, 2007, 02:07 AM:

Heresiarch, #117: "If so few people are convinced by moral arguments, perhaps it is because so few dare to make them."

Um, er, that's a joke, right? OK, I'm cranky. The arguments have been made, and by many, for thousands of years. It is a core Christian belief...yet somehow many Christians do not believe. If this were easy, it would have been done. Exception: Heian Japan abolished the death penalty...and the warlords brought it back, later.

I was addressing the specific argument "Killing people is right/wrong". The problem that, just as an argument, is there's nothing to ground it; nothing concrete to make the case, either way. A very charismatic person can probably talk some people into going along, but that's not going to change many minds. I don't ask that much; a little bit of empathy and a little bit of realism. Both of which are hard to come by, it seems. But progress is being made.

#121 ::: heresiarch ::: (view all by) ::: December 17, 2007, 04:10 AM:

Randolph Fritz @ 120: "The arguments have been made, and by many, for thousands of years. It is a core Christian belief...yet somehow many Christians do not believe. If this were easy, it would have been done."

I'm not really impressed with the willingness of anyone to the left of Huckabee to make moral arguments for anything. That the arguments have been made in the past, I don't deny. But is anyone making them now? Not so much. Hell, that's ninety percent of the reason to support Edwards for president: he's the one of the few progressives I've seen who's willing to say "I oppose this because it is wrong," not "because it's inefficient/bad policy/lacks widespread approval/etc." If it doesn't send shivers up your spine to hear that kind of rhetoric from a nationally-known politician then I don't know what.

I agree that "This is wrong" is not in itself a terribly good argument. It's only the conclusion of a much longer, much more complicated argument that isn't being made. I agree, it doesn't soundbite very well, nor does it have the savage appeal of eye for an eye. That's a reason (assuming you think it's right) to make it loudly and often, not give up on it.

#122 ::: albatross ::: (view all by) ::: December 17, 2007, 10:45 AM:

heresiarch #121:

Thinking about this a bit, I suspect what's really happening here is that moral arguments only work when your target audience substantially shares values with you. In fact, one downside of moral arguments is that the don't work at all with people who disagree with your starting moral premises. You then end up trying to convince someone to change their moral beliefs, which is really, really hard.

For example, the religious right and Catholic church both make moral arguments on political issues all the time. The civil rights movement (for blacks) routinely makes moral arguments, and these arguments carry weight with a large chunk of the society. Civil rights for gays doesn't work this way, I think mostly because not enough of the target audience is swayed by the moral arguments. For that matter, Objectivists make moral arguments for capitalism, though most of the moral arguments about economics come from the other side.

I think it's very hard to put moral and factual arguments in the same arena. One thing I find endlessly frustrating in political discussions is how often people want to decide factual issues on the basis of morality; something that just never works. (Frex, sex ed in schools may or may not be morally good. It may or may not be effective at reducing pregnancy or STDs. Those two questions are independent of one another, and we need not agree remotely on one to agree on the other. It's amazing how often people miss this.)

#124 ::: MD² ::: (view all by) ::: December 17, 2007, 04:48 PM:

About the relationship between desire, vengeance, and law: reminds me of a very interesting part in Deleuze and Guattari's Anti-Œdipe about capital punishment as an entertainment product made for mass consumption.

"Potence" in french used to bescribe a form of T-shapeds crutches, and then by extension any T-sahped structure made to support something. You can also find the word used with similar sense in military and heraldry vocabulary. Don't know for sure if and how it's related to the latin "potens" etymology of the english word.


I'll never hear the expression "gibier de potence" the same way.

Oh, and congratulations to the people of New Jersey are now in order, I guess.

#125 ::: David Harmon ::: (view all by) ::: December 17, 2007, 06:18 PM:

Our court system is supposed to combine at least three major aspects of "punishment" -- retribution, rehabilitation, and (via the civil courts) recompense.

The first problem is, we've practically abandoned the "rehabilitation" part, in favor of both explicit and implicit retribution. The second is that the court system's role in retribution is supposed to be that of a moderator -- a charge that goes back to Levitical law.

Remember that "eye for an eye" bit? Most people think it's supposed to be a license for retribution. In fact, if you look at the context and culture, it's meant to be a limit on retribution -- if somebody puts out your eye in a fight, you don't get to "up the ante" by getting your family together to kill them. (which was more typical among societies of the time).

In modern terms, the point is that you don't get to break someone's arms (much less shoot them) because, e.g., they keyed your car. In the time since the Bronze age, increasingly powerful governments have claimed a monopoly on such retribution, specifically to enforce such limits.

Ah, but we have a government meant to respond to the wishes of the people... and with a bit of media encouragement, the people want criminals to be punished more, more, MORE!. Pay a little more up front to rehabilitate them? Not so much.

#126 ::: mike montesano ::: (view all by) ::: December 17, 2007, 07:14 PM:

i think whoever doesnt support capitol punishment is ignorant and should be the same person in front of the gun of a criminal. knowing NJ has some of the most dangerous cities filled with gangs who kill for the fun of it, people still say "wow its a GREAT idea to ban capitol punishment." i would love to see some of these liberals experience a family member murdered brutally and thrown in a river as of some of these criminals on death row have done. one criminal who was released after doing a murder never changed as they expect, and he killed another one. now hes off of death row and will be out of jail in a few years. good job you idiots. you have made NJ a less safe environment. also, some believe lethal injection is too inhumane. you know how many people who are dying from cancer and other types of sicknesses who would love to be put to sleep. inhumane my @ss.

#127 ::: Steve C. ::: (view all by) ::: December 17, 2007, 07:20 PM:

Whee! Feeding frenzy!

#128 ::: Lydy Nickerson ::: (view all by) ::: December 17, 2007, 07:25 PM:

I think that it is a problem to demand that the courts create both retribution and rehabilitation. The two are often in opposition. Even for relatively small crimes, there seems to be no end to the retribution that some people feel to be appropriate. Punishment must be used very judiciously if the goal is rehabilitation. Positive reinforcement works much better than negative reinforcement, for a start. It's a political non-starter, but I would that the government get out of the business of punishment all together, and work only on rehab -- or separation for the hopeless cases. I think that there would end up being punishment in the system, since some people need negative consequences in order to learn new behaviors. I don't think that that should be the goal, though, ever. The only reason to punish is to shape better behavior. This has the logical consequence of not punishing the hopeless cases. I'm good with that. I don't approve of torture, even of evil men. For lifetime without parole, I think that the prisoners should be housed humanely, and that the state should pass on any punishment but incarceration. It's not as if living in prison for the rest of your life is some sort of prize.

#129 ::: Keir ::: (view all by) ::: December 17, 2007, 07:27 PM:

Mike, I wouldn't be worried about banning capitol punishment; this Democratic Senate seems pretty ineffectual anyway...

#130 ::: Lydy Nickerson ::: (view all by) ::: December 17, 2007, 07:28 PM:

I swear, I didn't see 126 when I made my comment. Not that I don't stand behind what I wrote, but I was not attempting to create a brangle.

#131 ::: Fragano Ledgister ::: (view all by) ::: December 17, 2007, 07:50 PM:

mike montesano #126: Which criminals on death row have had family members murdered and thrown in rivers? Wouldn't that be a mitigating circumstance?

#132 ::: vian ::: (view all by) ::: December 17, 2007, 08:09 PM:

Well, Mike @126.

You're entitled to your opinion. And you have a guaranteed right to express that opinion however you choose, up to and including calling people who don't agree with you "ignorant" and "idiots."

It's rude, of course, and not likely to sway anyone to your way of thinking, as all it is is abuse. It makes you look belligerent and agressive rather than reasonable. Also, people on this blog react badly to poor grammar and capitalisation - people who place great store in ideas like to see them expressed clearly. Spell checking would lend an iota of credibility to your argument.

Some of us are of the opinion that killing people is, in fact, wrong. Others of us believe that execution is not an effective deterent, is applied unevenly and greatly increases the suffering of people who are not the criminal (their families, children and other people who did not commit a crime). Still others of us are worried that execution is irreversible, and has in the past demonstrably led to innocent people being killed. We are not ignorant. We are not idiots. We disagree with you.

Also - arguing that something can't be inhumane if someone, somewhere has expressed (or might) a wish for it is so shot through of holes I don't know where to begin. But euthanasia is not execution. It could be argued that someone suffering extreme pain and illness is willing to have something inhumane done to them to put an end to their misery.

#133 ::: Xopher ::: (view all by) ::: December 17, 2007, 08:16 PM:

mk mntsn (as your name will, I predict, shortly appear): Oh, barf.

Not worth bothering. Dmbss lsr.

#134 ::: ethan ::: (view all by) ::: December 17, 2007, 08:29 PM:

I actually hope that #126 keeps at least some of its vowels, because disemvoweling would obscure the "capitol" hilarity.

#135 ::: Keir ::: (view all by) ::: December 17, 2007, 08:40 PM:

Another vote for not turning capitol into cptl.

#136 ::: Claude Muncey ::: (view all by) ::: December 17, 2007, 08:53 PM:

Obviously Mike @126 has more than one kind of capitolisation problem. Leave it be, at least for the moment.

#137 ::: Claude Muncey ::: (view all by) ::: December 17, 2007, 09:55 PM:

Mike @126:

one criminal who was released after doing a murder never changed as they expect, and he killed another one. now hes off of death row and will be out of jail in a few years.

Daniel Moynihan is usually credited with saying "Everyone is entitled to their own opinion, but not to their own facts." Mike, have whatever opinion you want, but it is time to start dealing with facts. I want to know who you think you are talking about above. I really want to know of someone, considering the trends in sentencing in this country, who even can even contemplate the possibility of a parole date after two separate murder convictions, the second after being paroled for the first. Name and details, please, or shut up.

#138 ::: Xopher ::: (view all by) ::: December 17, 2007, 09:55 PM:

So is this a dispute between the capitolists and the anti-capitolists?

#139 ::: heresiarch ::: (view all by) ::: December 18, 2007, 07:44 AM:

albatross @ 122: "Thinking about this a bit, I suspect what's really happening here is that moral arguments only work when your target audience substantially shares values with you. In fact, one downside of moral arguments is that the don't work at all with people who disagree with your starting moral premises. You then end up trying to convince someone to change their moral beliefs, which is really, really hard."

I don't really disagree with any of this. Making moral arguments IS hard, and it often doesn't work. I understand, in the short-term, why it's much easier and effective to make empirical arguments. And, as far as that goes, that's fine. In the long-term, however, making effectiveness arguments to the exclusion of moral ones has some serious negative consequences. For one, if you never mention your moral justifications, people tend to assume you don't have any. Just look at the current treatment of liberals in the American media: we are constantly accused of lacking moral direction.

Partially this is because conservatives have spent decades casting us as immoral, but it's also because recently we haven't really been challenging that portrayal: we've sort of embraced it. Relying on factual arguments has won us many battles, but in many ways it's lost us the war: liberalism has become synonymous with effete, disengaged, overly-intellectual wankery. And no one wants to side with the effete intellectuals, no matter how good their arguments are.

Moral arguments aren't a replacement for factual ones, but they are, I think, a necessary accompaniment.


#140 ::: Matt McIrvin ::: (view all by) ::: December 18, 2007, 07:59 AM:

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.

I think that has some of the same problems as the use of the death penalty to force plea bargains, especially given current prison conditions. That is, it may be that some innocent and competent people would sincerely want to die if sufficiently convinced (possibly in error) that they'd never get out. Presenting them with that official alternative would be a further abuse.

#141 ::: Nancy Lebovitz ::: (view all by) ::: December 18, 2007, 09:02 AM:

Yesterday on NPR, there was some discussion of capital punishment. The argument for life without parole as cheaper came up, and the major reason it's cheaper is that there aren't as many appeals. Unless I've missed something, the goal is to be able to imprison people for life without being any more careful about evidence than the justice system has been in capital cases.

It's tempting to go into an ecstasy of "Americans suck" or perhaps the more general "People suck", but instead, I'm curious. Does anyone know of a government or other group which is reasonably meticulous in how it handles serious accusations?

And there was an hour interview about whether lethal injection is too cruel, with the macabre detail that prisoners sometimes offer to do the injection themselves because the official keeps botching it.

In re prison and punishment: Except for some of the worse child abusers, imprisoning people is frequently more damaging than anything non-government criminals do.

#142 ::: Lila ::: (view all by) ::: December 18, 2007, 10:20 AM:

No matter how badly you want revenge, taking revenge on the wrong person while simultaneously letting the right person walk free doesn't seem very helpful.

Does the family of the wrongly-executed get to seek revenge too? If so, on whom? If not, why not?
How about the families of the future victims (if any) of the never-convicted actual killer?

#143 ::: Xopher ::: (view all by) ::: December 18, 2007, 01:38 PM:

One thing we should remember is that even the exoneration of the wrongly-convicted won't result in the conviction of the real killer. Once someone is convicted of a crime, it's impossible to convict anyone else of having done that crime (assuming they're mutually exclusive), because the defense in the second trial gets to use the conviction in the first trial as evidence.

People with enough doubts about the justice system to understand that the first conviction was wrongful, and therefore not very good evidence (and that in fact all the evidence USED to convict that other person was not sufficient) generally wriggle out of jury duty—one reason I never do.

#144 ::: CHip ::: (view all by) ::: December 18, 2007, 07:36 PM:

Nancy -- I think you have the argument backwards. The reason there are so many appeals is that death is \final/; many people faced with death will grab at any scrap of a chance. (It's also possible that this finality leads some jurisdictions to be more generous allowing appeals when death is stake, but (a) I haven't seen hard numbers on this and (b) I think such action is appropriate.) I suspect most \trials/ are "reasonably meticulous"; the problem is that there's a difference between "reasonably meticulous" and "so meticulous you don't worry about (to paraphrase a Mercury astronaut) sitting on tons of explosives built by the lowest bidder".

There is always room for unscrupulous representatives of government to cook evidence. (There's also room for defenders, but it's harder; they don't have the power of imprisonment as a tool to ]tip[ witnesses.) How meticulous do you have to be to catch cases of police torture as reported at

#145 ::: jamiehall ::: (view all by) ::: December 18, 2007, 10:36 PM:

In answer to albatross at #122

I think that factual arguments and moral arguments are inherently inseparable. If you think they are completely separate, then you're basically saying that the morality of an act has no relationship to the effects of an act.

For example, suppose that death wasn't permanent. Everyone resurrects a day later with no physical or emotional damage. Would murder still be just as wrong?

Or suppose a hypothetical society with technology so high that any object could be replicated and replaced perfectly at no cost. In such a society, would stealing still be as wrong as it is now?

Or take it in the opposite direction, and suppose that every time someone in our universe chews gum, millions of sentient innocents in some other universe are tortured to death. Would the act of chewing gum then be immoral? Of course it would.

Moral arguments can never be completely untangled from factual arguments, and the effects of an act always have something to do with whether it is wrong or right.

#146 ::: Randolph Fritz ::: (view all by) ::: December 19, 2007, 05:10 AM:

Heresiarch, #121: "But is anyone making them now?" Against the death penalty? Does the Pope count? But he also says other things are "wrong" which you probably don't agree with.

H, #121: "I agree that 'This is wrong' is not in itself a terribly good argument. It's only the conclusion of a much longer, much more complicated argument that isn't being made. I agree, it doesn't sound bite very well, nor does it have the savage appeal of eye for an eye. That's a reason (assuming you think it's right) to make it loudly and often, not give up on it."

And there equally long and complex counter-arguments. And the Pope has other arguments on things you don't agree with him that are very good; they are 1800 years (or so) old and not going away. You can make your argument, sure. It may even be correct. But no-one has won that argument for any large number of people and length of time, ever, in history. Maybe, eventually. But not today. Hence I turn to things I can ground in consensus reality. And, in fact, these seem to be sufficient. There's something to be said for not shooting foxes with elephant guns, especially when you don't have elephant guns.

Albatross, #122: "Frex, sex ed in schools may or may not be morally good. It may or may not be effective at reducing pregnancy or STDs. Those two questions are independent of one another, and we need not agree remotely on one to agree on the other. It's amazing how often people miss this."

I don't agree, but that gets into questions of epistemology, and a widely accepted epistemology is another one of those elephant guns that we don't have.

#147 ::: Hector Owen ::: (view all by) ::: December 19, 2007, 11:16 AM:

I apologize for my comments above. I would delete them myself, if I could. I know better than to post when hot; should have stepped away from the keyboard, but did not. Making Light is a wonderful party; I am sorry I made a mess on the rug.

#148 ::: Dermott McSorley ::: (view all by) ::: December 19, 2007, 06:03 PM:

Late thoughts,it costs more to execute someone than to imprison them .Between lawyers,appeals,etc its cheaper to put them in jail. And you can change your
mind if they are found innocent.
The legal system does make mistakes,and to execute even a few innocent people is way too high a price.
I come to this heavily influenced by RAH and his better off dead list.Indeed I have met enough candidates who fit this profile,to indeed,to believe,better off dead.There is no way to do this without making mistakes.IE yes there are evil people out there; executions are not the answer.
The point was made earlier that Ken Lay more deserved execution than most of those on death row.Yes yes yes, he had caused more loss to more people.Still I would have been content with stocks and public shaming.
Different point,Italy apparently led a resolution in the UN to put a moratorium on the death penalty Its needed and notable who opposed this.

#149 ::: albatross on vacation ::: (view all by) ::: December 21, 2007, 03:24 PM:


I agree with your basic point here, but I don't think I got my point across too well. Let me see if I can rephrase it, though I suspect it would take a lot more time than I have to really do a good job with it.

It is common in some disagreement about politics, society, etc., to have many different reasons offered for the same position. Alice argues against the use of torture because she believes it is inherently evil, Bob because he's convinced that information gotten by torture is unreliable. Now, it's very common for Alice and Bob each to accept the other's argument at face value, because they like the conclusion and they are on the same side in the debate.

The problem is, there is no reason to expect that these truth of either argument will have any relationship to the truth of the other. Whatever reasons Alice has for believing torture is always and everywhere wrong, you may come to decide that she's mistaken, and that conclusion isn't necessarily related at all to whether torture yields good intelligence. Similarly, you may completely agree with Alice's arguments, but that does not tell you whether there is some way to use torture to get good intelligence. It's possible that Alice and Bob are both right, both wrong, or that either one or the other but not both are right. There's no contradiction between these.

Similarly, perhaps Carol opposes the death penalty because she is convinced that it has no deterrent effect, and Dave opposes it because he's convinced that we can't carry it out in a careful and fair way. Again, there's no inherent reason why these two would be connected, and if you are convinced by Dave's argument, that doesn't mean you need to be convinced by Carol's.

But that's not generally the way people work; it's very natural to quickly accept arguments for things you agree with, and quickly reject arguments for things you disagree with. It's painfully common to see people basically demanding that facts agree with their opinions, to the point of villifying people who provide facts or claims that disagree with them.

Remember how many people suddenly acquired an opinion on the validity of cluster sampling, when the Lancet study on Iraqi casualties came out? Isn't it funny how people who mostly had never troubled themselves with statistics had an opinion on that technique, just in time to respond to its use in an argument that said that their side had made a big mistake?

This works with moral/political principle arguments, too. There's a Pew Center survey (I'll dig it up later) that deals with opinions on our measures in the war on terror. Before the Administration scandal about warrantless wiretaps came out, Republicans and Democrats had similar opinions on whether this kind of wiretapping would be acceptable. After it came out, rather quickly, Republicans' opinions moved substantially toward accepting it. Isn't that funny? Just suddenly, they changed their beliefs about what was permissible for the government to do, because the outcome of the argument started affecting other beliefs.

I've used examples among conservatives, but I should point out that this doesn't seem to me to be at all limited to conservatives. I suspect it's a feature of how humans work, something that you constantly have to guard against.

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