Tuesday, January 30, 2007

The lesser Hitch

Pity poor Mrs Hitchens when her lads were bolshy teens!

Peter Hitchens is the younger brother of the more successful Christopher and unsurprisingly enough they mostly hate each other. Peter (a former Trotskyist) lurks crankily on the hard right, but in true Hitchens style his real role is that of Contrarian. (He opposed the Iraq invasion while lefty Chris supported it.)

Peter’s latest post on his entertaining blog has a bash at hanging. Naturally, he’s pro, and funnily enough he’s trying to fight off precisely the conservative argument against capital punishment that stirred up such a hornet’s nest here. He takes the line that a couple of TofE’s commenters took: that opposing the death penalty on the grounds that irreversible fatal penalties cannot be justified in a fallible system is hypocritical, since we are quite willing to accept the risk of fatalities to innocents in other areas (he brings up the Iraq war and other things, but could equally have mentioned road traffic safety etc).

This is of course a nonsense argument, first because it is not a zero sum game (life imprisonment offers an alternative), and second because in each area of public life – be it road traffic, war or criminal justice – you must attempt to have the least worst possible arrangement, and unavoidable flaws in one do not excuse you from having similar flaws in another if they are easily escaped.

The fact that most of Hitchens’s commenters – themselves right-wing Daily Mail readers – patiently take him apart on the issue illustrates the power of this conservative argument for abolition.

Capital punishment is a knee-jerk issue that traditionally divides two sets of people who can’t stand each other: the it’s-all-society’s-fault bleeding hearts; versus the hangers and floggers. Because of this, it’s an emotionally difficult one to let go, which is why pro-hangers will take a leaf out of the leftist book and scattergun everything they can think of at the faillibility argument. In fact, the argument is often not particularly emphasised by true bleeding hearts because it is about limiting the power of the state over the individual.

There are two types of pro-hanging conservatives: those who haven’t encountered the fallibility argument; and those who haven’t thought about it for long enough.

36 comments:

M Ali said...

The Hitchens are OK with each other. They were feuding for a long while but reconciled after the birth of Peter Hitchens' third child.

Peter Burnet said...

Well, I heard the fallibilty argument many years ago, and have thought much about it. You have certainly forced me to think a lot more about it of late. I'm still not convinced. Is it me or is the problem with your delivery?

Brit said...

You, I should think. It's not hard to grasp, just to accept the consequences.

Which is to say, it's not a question of being "convinced", it's a question of understanding and accepting something about your own views on human life and justice.

Mike Beversluis said...

Would it be ironic if a governor called to stay an execution only to find that they were executing the deceased's will?

Brit said...

Mike, I have taught you everything I know about ironies. Go forth and find thine own.

Duck said...

Brit, we haven't made the rounds of all the other stock arguments yet. You can't reopen this so soon!

This is of course a nonsense argument, first because it is not a zero sum game (life imprisonment offers an alternative), and second because in each area of public life – be it road traffic, war or criminal justice – you must attempt to have the least worst possible arrangement, and unavoidable flaws in one do not excuse you from having similar flaws in another if they are easily escaped.

You're ignoring the justice argument that I brought up last time. For heinous crimes anything short of death is justice denied, so you can't say that life imprisonment is an acceptable substitute. Yes, we know that you reject this argument, but that's not the same as saying this argument doesn't exist. This argument isn't going to evaporate upon reflection of the conservative view of the individual and the state.

Brit said...

Yes, that's one out the scattergun and it is an argument. It's just not one that's open to conservatives.

When I said "There are two types of pro-hanging conservatives: those who haven’t encountered the fallibility argument; and those who haven’t thought about it for long enough", obviously I'm implying that anyone who doesn't fall into either of these categories and is still pro-hanging, is not a conservative.

joe shropshire said...

life imprisonment offers an alternative

Why, or rather, what sort of alternative? Does the fallibility argument not apply to life imprisonment?

joe shropshire said...

Also this:

in each area of public life – be it road traffic, war or criminal justice – you must attempt to have the least worst possible arrangement

Seems flatly wrong, at least with respect to crime, at least in the United States. What you must attempt to do here is to have an arrangement that meets a minimum standard, spelled out in the federal and echoed in all the state constitutions (who are free to enact a different standard. At present twelve states forbid capital punishement.) With respect to criminal trials, that means due process as set forth in Article III and Amendments IV-VII. With respect to punishment, here's the Eighth Amendment in its entirety:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Now of course there are many for whom and capital punishment is per se cruel and unusual, but that's been spoken to in Gregg vs. Georgia.

Brit said...

Joe:

That's an interesting rundown of basic US jurisprudence but it amounts to the same thing: the 'hypocrisy' argument is weak.

The fallibility argument does apply to life imprisonment, but the conclusions are different. Even non-statists like me accept that you need to have some kind of punishment system, and inevitably we will wrongly imprison innocent people.

I won't insult your intelligence by pointing out the difference between releasing an innocent prisoner and awarding a posthumous pardon to an innocent corpse.

All these arguments were covered in exhaustive depth on the other thread, btw - see link in the main post above - so I'd prefer not to repeat them all here.

joe shropshire said...

I won't insult your intelligence by pointing out the difference between releasing an innocent prisoner and awarding a posthumous pardon to an innocent corpse.

Not much there to insult, of course; but in addition to your mental image, consider one where both prisoners are innocent, and both serve their full sentences, and neither is exhonerated. So far as I can see the conclusion in such a case is the same either way, and I'll wager that that is by far the commoner case. So if fallibility weighs against capital punishment, then it ought to weigh about as heavily against life imprisonment. (Or any other serious punishment.) The original thread was a good one, but hardly exhaustive, simply because no one I saw (not even Harry) pressed you hard enough on that.

Duck said...

I'm implying that anyone who doesn't fall into either of these categories and is still pro-hanging, is not a conservative.

Well, I'm not conceding your point but that is probably the least interesting angle that I'd care to argue this on. Conservatism isn't my religion. I found Andrew Sullivan's crusade to define conservatism as the set of people that agree with him on all the issues to be pretty tiresome. The more important thing is the issues themselves, and not the characterization of the person holding a position on any series of issues in common. I was quite happy to consider myself a moderate for most of my adulthood.

Harry Eagar said...

I've thought about it as hard as I am capable of.

I didn't come to my choice -- I wasn't always for hanging -- because I'm a conservative, because I'm not.

And that's backwards anyhow. On an issue of such consequence, it seems to me you ought to come to your opinion on whatever merits you think it has. If people call you X after that, that's their problem.

And if I didn't press it as far as joe might have expected, it was only because I didn't want to set the schoolma'ms aflutter. I am not only for hanging killers, I am for hanging attempted killers.

Can't see any reason to award a different penalty just for bad aim.

(This argument is sound for whatever the penalty may be; I would also be for life imprisonment for attempted murder if life imprisonment were the proper punishment for completed murder. It's the thought that counts.)

But, as I've said elsewhere, I understand why Europeans would not trust themselves to administer a system of capital punishment.

David said...

Like generations of conservatives before me, I accept that using capital punishment opens up the possibility that people will be executed for crimes they did not commit. And yet, like generations of conservatives before me, I support the use of capital punishment.

Brit said...

Joe:

That just doesn't follow. It's about justifying investing judicial systems with the power to give irreversible penalties. It still might get life imprisonment sentences wrong, but hanging is a different category of punishment - it has to be: it's uniqueness is your whole reason for supporting it. As much as anything, it's a practical thing based on real cases. Guildford 4, Birmingham 6.

All:

You've missed the point of this post. The other one was about capital punishment. This one is about conservatism.

Given that you accept that killing an unknown (but hopefully small) number of innocent people is an acceptable side-effect of the societal advantages of maintaining state execution, what does this say about your attitides to the state, justice and the individual?

You should start by asking the question: why do we have trials, juries, and defence lawyers?

Oroborous said...

I am not only for hanging killers, I am for hanging attempted killers.

Me too.

In fact, I'm for hanging people who are merely extremely careless, regardless of whether they intend to kill anyone, or whether they've actually managed to kill anyone.

For instance, I would support executing someone after three drunk driving convictions, even if they'd never even had an accident.

Duck said...

It says that the individual has a right to be fairly and justly treated in any legal action that can deprive him of property, freedom or life. It also says that the state has an obligation to protect individuals from other individuals, and to render a just punishment for individuals who transgress the rights of other individuals to their freedom, property or life. The state has both roles, and it must strive to fulfill both to the best of its ability. It is understood that the best of its ability will inevitably include mistakes.

Conservatives also honor tradition, and capital punishment has been a traditional form of punishment for many centuries.

joe shropshire said...

It's about justifying investing judicial systems with the power to give irreversible penalties.

Again with irreversible. Unless the state's got a time machine in its pocket, all serious punishments are irreversible. Certainly all prison sentences are irreversible once served. Think about doing a long sentence, say 45 years, but not a life sentence. Now suppose that the witness who lied you into jail recants on their deathbed, and you get commuted. You get out of jail a year short of a full ride. How exactly does that "reverse" four decades of hard time? We punish people for serious crimes by taking some portion of their lives away from them. The death penalty takes the largest portion, but that doesn't put it in a category of its own. Life, liberty, property.

Brit said...

Joe:

The trouble with your argument is that it is an attempt to deny obvious common sense. And what if it’s only one year into the life sentence that they’re cleared? And even if not, ‘taking life away’ is just a turn of phrase: being in prison for ten years is not the same as being dead for ten years.


Duck:

Why do we have trials? Why the bit in between arrest and sentencing?


Harry and Oro:

Interesting as that is in terms of indicating the degree of sanity (and here Oro just nudges ahead in the race to the Happy-Tablet Academy) with which you answer the question “Do some crimes deserve death as punishment?”, what’s really interesting is that you’ve proved my point that that is the question people can’t help answering when the subject of capital punishment comes up.

It's a knee-jerk response, but as an answer to the infallibility objection, it’s irrelevant. It’s like when you’ve got a song stuck in your head and anything else you try and sing keeps turning into it.

Harry Eagar said...

Well, as I'm not a conservative, I'll have to withdraw from this thread.

Otherwise, I'd have something to say about drunken driving and its discontents.

Brit said...

That's a pity. I was hoping you and Oro were going to have a little 'up-the-ante-for-death-penalty' contest.

Presumably speeding was next: 9 points on your license, suspension; 12 points, swing from the yard-arm.

Duck said...

Why do we have trials? Why the bit in between arrest and sentencing?

So that justice will not be arbitrary or biased. That's the same whether the punishment is capital or not. Mistakes are inevitable, and when they occur they are tragic in either case. But as with all cases where a social practice can be expected to cause unintentional deaths it is judged that the practice is valuable enough to society to make the worth more than the risk of unintended deaths.

The execution of the most heinous criminals is a valuable service that the state provides to society. This is the crux of our argument, the crux that you do not accept. You can't defeat the argument by roundabout appeals to conservative principles, you have to assault the crux of the argument.

Harry Eagar said...

You're not far wrong, Brit.

How does a anti-hanging conservative deal with these facts, all from real life:

7 a.m. Sunday. Mom drives 6 young children toward Sunday school, is broadsided by habitual drunken driver, who is shaken but not stirred. All 7 in van die.

After you explain how you would handle it, I'll tell you how it actually was handled.

I'm betting they will not be the same.

Oroborous said...

Regarding "infallibility", I stipulated that one must be convicted three times before execution.

How many people get falsely convicted three times ?

Mike Beversluis said...

Not speeding

joe shropshire said...

Whoever wilfully blasphemes the holy name of God by denying, cursing or contumeliously reproaching God...

Contumeliously. Con-tume-lious-ly. What a gorgeous word.

Brit said...

Duck:

Yes, I've been telling you all along that that is the crux of the argument.

You accept that killing an unknown number of innocents is justified because society gets enough benefit from having the death penalty.

I disagree, because there is an alternative of life imprisonment. I can't attack that 'crux' any further: you either accept it or you don't. It's a matter of personal opinion.

My only contention is that your side of that crux is profoundly anti-individual, statist, and ultimately anti-human in its outlook, whereas mine is the opposite.

I didn't say there was no argument to be made against the fallibility problem, I said there is no conservative argument against it.

Duck said...

This is interesting:

According to the same survey, 60% of Europeans are against capital punishment, while 38% are in favour. Support for abolition is most widespread in the south (80% of the Spanish population and 72% of Italians declare themselves opposed to the death penalty), while the British are divided on the issue (49% against and 48% in favour).

Duck said...

My only contention is that your side of that crux is profoundly anti-individual, statist, and ultimately anti-human in its outlook, whereas mine is the opposite.

Anti-individual? Nonsense, it holds that justice for the ultimate crime against an individual, murder, should garner the harshest sentence possible. To allow lesser punishments puts less value on individual life.

The statist argument is just wrong. We could make it less statist by allowing individuals to exact their own justice, but I don't think that's what you had in mind. To the extent that we all live in a state we are statists, it's just a matter of how much personal autonomy we give up to the state that determines how statist we are. I find the notion that only the state can protect individuals from violent crime, and only the state can own firearms which are the only truly effective implements for individual self defense to be far more statist than what we are discussing here.

As for the anti-human charge, you're just indulging in emotional theater. I've pointed out, as does Hithchens, the numerous aspects of public life where innocent lives are lost knowingly as an inintended side effect, and you are perfectly willing to accept the killing of unknown number of innocents, to use your phrase. The same charge can be applied to any policy that does so.

Brit said...

You keep making that same irrelevant point about other areas of life. We're not happy about innocents being killed - in each case we try to make a sane judgement about the trade-off between cost and benefit.

On this issue, you're saying the benefits to society outweigh the price of individual lives.

So to justify your position, you need to stop talking about irrelevancies, and start explaining what benefits the death penalty conveys. So far, you have offered nothing except a sort of general tribal revenge motive. If you find that has any merit, fine, but you need evidence as well as feelings.

Harry Eagar said...

Regarding the survey that Duck links to, neo-neocon comments on it as well and says that life imprisonment is 'rarely' imposed in Europe.

'Rarely' is not defined.

Is that accurate, though, Brit?

Is Europe unwilling to hang but also unwilling to incarcerate?

Brit said...

I don't know, I don't live in Europe.

But I did talk about opinion polls in the other post.

Harry Eagar said...

OK, in England then.

And I'm not asking what English people think should be done. I'm asking: Are heinous criminals put away for life or not?

I have already offered the example of an American matricide in London, very evidently an out-of-control homicidal maniac, who was not sent to prison at all but to a sort of Club Med for lunatics.

He was not kept even there for long but was released, upon which he murdered a slavey who had no idea what sort of person he was.

Brit said...

Does that question even mean anything? What does 'heinous' mean?

Some criminals remain in prison for life, some get transferred to different kinds of prison depending on how they develop. Myra Hindley died in prison and Paul Brady is still in there.

It's up to the prison and parole authorities, and in extreme cases Home Secretaries, to review individuals on a case-by-case basis.

However, I'm sure you can browse the Daily Mail archives to find some crazy stories where it went all went horribly wrong.

Harry Eagar said...

See 'Savage Grace.' I only read the Mirror for the Page 3 girls. Or used to. They've declined quite a bit over the years.

Invoking John Morris again, the one case of Baekeland would not in itself demonstrate anything. The existence of a Club Med for homicidal maniacs, however, reveals much.

What it revealed was a disinclination to ascribe responsibility or to restrain behavior.

In years past, I'd have expected that to disturb conservatives, but the world's turned upside down, I guess.

Harry Eagar said...

'Brigitte Mohnhaupt, 57, qualifies for early release after serving a minimum proportion of her five life sentences.'

Tortured and murdered 9 people in the name of Communism.

She's younger than I am.