Monday, January 08, 2007

State killing is for statists

The hanging of Saddam Hussein has brought that ancient chestnut, the capital punishment debate, bobbing inevitably to the surface once more.

One popular line of argument that I come across here and there goes like this: abolishing capital punishment is undemocratic, since most of the general population of x are in favour of it, and it is only the political, liberal ‘elite’ of x that prevents its resurrection (where x = Britain or any other Western liberal democracy)

This argument illustrates a very common, but still almost unforgivable, failure to understand what democracy is all about.

Naturally enough, I’ll focus on Britain. Democracy, in the British sense, really means ‘representational democracy’. We elect a Government, but we also elect a House of Commons which includes an Opposition, from people among our ranks. We expect this House to debate the issues and thereby come to informed judgements. We allow them to make decisions on our behalf and we do not expect them to come to us to decide every matter while we’re getting on with our own business. In other words, we elect Governments because we want them to govern. But with this essential caveat: if they make a cock of it, we get to kick the useless blighters out.

So democracy is about creating leaders that do lead, but who are accountable and removable. But ‘representational’ has another important meaning: democracy is also about giving everybody a voice in the debate, and protecting the interests of minorities as far as is humanly possible.

One thing democracy emphatically is not, and should not be, is mob rule.

So with all this in mind, let’s go back to the original proposition above. Is it in fact true that “most people are in favour of capital punishment, and it is only the political, liberal ‘elite’ that prevents its resurrection”?

Well, in Britain it is certainly true that

1) the politicians have gradually debated capital punishment out of existence; yet
2) polls generally seem to show majorities of the public in favour of bringing back execution.

But take a closer look at point 2. What does it mean? What it actually means is that a majority of people in a Mori poll or similar have answered ‘yes’ to the (explicit or implicit) question “do some crimes deserve to be punished by death?”

Generally, these polls are only conducted after some lurid serial killer case, or after a policeman is shot. They are not part of a wider debate about allowing the state the power to kill convicted criminals.

Worse, poll results, as all politicians and pollsters are well aware, are largely pre-determined by the phrasing of the question.

Suppose we were to poll the same people with the question: “Given the risk of accidental or deliberate miscarriages of justice leading to the conviction of innocent people, for example in the cases of the Birmingham Six, should we trust the justice system to execute people?” You might expect the poll results to skew somewhat differently. Or suppose you were to show them pictures and profiles of High Court Judges, and then ask: “Should this man have the ultimate power of life and death over citizens of this country?”

"Do some crimes derserve to be punished by death?" is the first question that pops into most people's heads when they believe they are debating the 'capital punishment' issue.

But the reason that point 1 is true – that politicians have debated capital punishment out of existence – is that when you come to debate the death penalty, it eventually emerges that “Do some crimes deserve to be punished by death?” is the wrong question. It is a red herring.

Of course some crimes are unforgivable. Mass homicide, horrific child abuse, the murder of policemen – you can make perfectly good cases that each of these crimes deserve death as punishment. Nothing is easier than digging up stories of evil deeds and saying “this deserves death”.

But that is all irrelevant when you address the proper issue, which is: how should we best arrange our system of justice?

It eventually becomes clear in debates that the key question is this: in arranging our judicial system, and knowing it to be fallible, can we justify granting it the power to kill, when there is the viable alternative of life imprisonment?

And ultimately, the only possible answer is no. Because if you answer yes, you are finally reduced to the argument that it is ok to allow some innocent people to be killed, because it will only be a few, and it will be for the greater good of society.

At this point alarm bells should start to ring for anyone who calls himself a ‘conservative’. Or indeed, for anyone who is not a raving statist commie.

All British Parliaments since abolition in 1965 have allowed regular free votes on a bill to restore capital punishment and it has always been defeated. This includes times when the House has been dominated by right-wing Tory governments. Yet anti-death penalty arguments are usually associated with left-wing bleeding hearts arguing that ‘society is to blame’ for all crimes, not criminals.

In fact the strongest argument against capital punishment is a deeply conservative one. It is about acknowledging fallibility - of the state, and of the individuals who comprise it. Trusting the state to always get things right, to be omni-competent and incorruptible, and thus to always hang the right people, only makes sense through loony left goggles.

Trumpeting a state system that knowingly sacrifices a few individuals for the greater good of society is a strictly commie viewpoint.

Conservatives know that limiting the power of the state over its own citizens is essential. The first thing you should do is remove its power to kill them.

80 comments:

Peter Burnet said...

Yes, but your problem is that if you admit some crimes are horrific enough to deserve death but the state should nonetheless never execute for whatever reasons, you end up making a good case for taking certain outrages out of the judicial systen all together and relying on vigilante justice and lynchings. That's pretty much what Churchill, who understood law by definition and necessity becomes remote from morality in extreme cases, wanted to do with the Nazi leaders and it's interesting that none of the moral handwringing about Hussein's execution would presumably have occurred if he had just been torn to bits by a howling mob when they pulled him out of the hole. Do you ever hear folks lamenting that Caucaescu never got a fair trial?

I'm a hopeless waverer on this issue and I share your Burkian notion of the duties of parliamentarians, but the legal system is about social order and cohesion as well as individual justice and the moral high ground. When you get to the point that any execution is ipso facto illegitimate no matter what the outrage or popular view about it, you are into socially dangerous, undemocratic and very elitist territory. Don't complain to me when a populist reaction makes hangman a favoured career choice.

Brit said...

Mob anger is temporary, easily manipulated by demagogues, almost always misguided and has absolutely no place in informing any decision in a civilised society.

Peter Burnet said...

So said Louis XVI. But I'm not talking about mob passions of the moment. I'm talking about a majority that consistently and over time agrees with you that some crimes are unforgivable and morally deserving of death and can't square that with the statement that executions for such crimes are always morally wrong. Can you help them out?

Brit said...

Certainly I can. That's what the post is all about.

There are some crimes for which you can make a good case that they morally warrant death as retribution.

The problem is that it is impossible to guarantee that any judicial system will identify the correct culprits attached to those crimes.

Not one of Myra Hindley, Ian Brady, Fred West or Harold Shipman were executed, though the mob would surely have torn each apart, and the Houses of Parliament were not toppled as a result.

The Louis XVI remark is apt, by the way. Decision by mob is very French.

Anonymous said...

I agree with you entirely about representational democracy. One of its great virtues is that it attenuates passion on particular issues, unless that issue is so overwhelming that a majority of the electorate are willing to vote on that issue alone. As far as I know, that's only ever happened with slavery in the US.

On the other hand, it is ok to allow some innocent people to be killed, because it will only be a few, and it will be for the greater good of society.

Brit said...

Just so I understand how you make that calculation, how do you (1) define 'benefit to society'; and (2)calculate that the net benefit to a society which conducts state executions, minus the factor of killing x number of wrongfully-convicted people (where x depends on the relative competence/corruptibility of the police and judicial system), compared to one which imprisons for life for the same crimes. Don't forget to factor in the effects of some percentage y of figure x being subject to subsequent evidence showing them to be wrongful executions in the first society; and the comparable effects of some percentage z of prisoners p being released under similar circumstances in the second.

Brit said...

Peter:

By the way, if what's primarily troubling you about taking the plunge into the anti pool is that you will no longer be able to slug out the Death Penalty Debate with your bleeding heart anti-American lefty dinner party companions, all is not lost.

You can simply take a sip from your glass, dab your lips thoughtfully with a napkin, and announce: "Although your final conclusion is by some happy chance correct, your reasons for arriving there are completely misguided...."

Anonymous said...

Brit;

The problem with your argument is that almost any large scale action by the State is going to result in the death of innocent people. Therefore, if that's a non-negotiable criteria, you have to be an anarchist to be true to it. To accept the existence of the State is to accept it killing innocents.

For instance, couldn't you use the exact same logic to demand the elimination of the NHS? After all, it will make mistakes, wrong diagnoses, etc., leading to the deaths of innocents. Does that make the NHS morally wrong?

Brit said...

SH:

Not at all. It is a question of setting up the best possible system in each case. It's the single candle argument.

In this case, we must try to have the best possible, or rather, least worst possible, judicial system.

Improving the NHS is a matter for debates about health policy, and is quite unrelated to the key question, which is, I repeat:

In arranging our judicial system, and knowing it to be fallible, can we justify granting it the power to kill, when there is the viable alternative of life imprisonment?

Peter Burnet said...

I have to wonder whether, once again, you are using the word moral more to add a little rhetorical lustre to your argument than to actually define the principles at stake. I can understand somebody who says capital punishment is always immoral or somebody who says it can be morally deserved but the risk of mistake is too high, but I'm stumped by someone who says killing in a particular case is morally deserved, but it would be immoral to do so.

When I go through my anti stages it is mainly because I am troubled by the impossibility of translating a visceral sense of the truly heinous into a law of general application, and thus we end up executing people we'd really rather not in order to protect the principle of equal justice for all. Our modern notions of mercy are all askew. But when we are confronted by the Wests and Husseins on an individual basis, I'm happy with hang 'em high.

Your argument that capital punishment is statist and true conservatives should be opposed is very cute. I'm looking forward to your essay on we evolved from the proto-communism of the 18th century.

BTW, do you often refer to the general population as "the mob", or just at cocktail parties with your fellow brights?

Brit said...

"I can understand...somebody who says it can be morally deserved but the risk of mistake is too high".

Good, because that is what I'm saying.

Again you bring up a particular case - Fred West. That's irrelevant. It's a question of arranging the least worst judicial system.

But sure, let's take Fred West as a extreme example.

If Fred West did what it is claimed he did, I wouldn't shed any tears at his execution.

That might be a very, very small if, but it's still an if, because he was tried and prosecuted by a fallible system. It is extremely unlikely that it might turn out that a third party was involved, and this theird party and Rose West were the culprits and Fred was a dupe. It's extremely unlikely. It's not impossible. The system is fallible.

There is nothing original or idiosyncratic about this argument, Peter.

The fallibility of the processes of prosecution and judgement have been demonstrated repeatedly, and the argument I'm presenting is the very one that eventually tipped the scales in favour of abolition.

Brit said...

By the way, I don't believe that anybody who is pro-capital punishment has addressed the issue seriously until they provide an answer to that question:

In arranging our judicial system, and knowing it to be fallible, can we justify granting it the power to kill, when there is the viable alternative of life imprisonment?

Brit said...

And one more thing, Peter: I have to wonder whether, once again, you are using the word moral more to add a little rhetorical lustre to your argument than to actually define the principles at stake..

Seriously, it amazes me, it ghasts my flabber, that you can read what I've written and come out with a statement as gobsmackingly wide of the mark as that.

The whole point of my argument is that it is irrelevant whether you believe that certain crimes morally deserve capital punishment, becaue you cannot guarantee that you've got the right criminal.

M Ali said...

I'm OK with capital punishment as long as the crime is appropriately heinous and the guilt undisputably clear. So, no cases like that Indian bloke in the US who got the death penalty based on some quite dodgy evidence. For Hindley, Shipman, the Yorkshire Ripper and Saddam, they ought to have swung\been injected\electrocuted\shot by firing squad\shot into space.

Anonymous said...

Brit: As you do so often, you're drawing a line and calling it a wall.

First, I'm not suggesting a system for the world at large. I'm suggesting a system for the United States, which, by and large, has an efficient and non-corrupt legal system.

Second, it's a little bit odd that you think that we haven't considered the logical first question about the death penalty or come to a conclusion that we found satisfying. We naturally must accept the fact that innocent people will be executed, though great pains should be taken to avoid that happening.

Putting these two points together, we see one of the reasons your argument is untenable. Life imprisonment also suffers from the flaw that innocent people will be convicted. Although it is true that, if the error is discovered, the prisoner can be freed, not all errors will be found. In fact, given the extra scrutiny given to death sentences, it is likely the case that far more innocent people are sentenced to life imprisonment, proportionately, than to death.

Next, we have to consider that, having already been sentenced to life, a prisoner has nothing to lose from additional murders. So all of the murders committed by those who would otherwise have been executed count against abolition. Worse, prisoners who do murder in prison, or otherwise misbehave, can end up at SuperMax facilities, which you can read up on here. Amnesty International has suggested that this type of imprisonment is torture and frankly there's something to that. I don't know that a prisoner wouldn't choose execution over spending 20 years in a SuperMax.

Finally, you too easily evade SH's point. Government makes lots of decisions that end up killing people, and makes those decisions knowing of that danger because, as you say, government is not perfect. Condemned murderers at least get the benefit of particularized proceedings in which they are given the benefit of every doubt and as much process as possible.

Finally, your respect for human life is touching. In fact, it is almost religious, since it cannot be justified on any material ground.

Peter Burnet said...

Oh, I like shot into space, but I would worry about the environment.

Brit:

Easy now. My point is that there is a difference between pragmatic "how do we know we got the right guy?" concerns and "execution is always wrong" convictions, and I think you are muddling them. One leaves open the theoretical possibility of reform to reduce the risk of mistake and the other doesn't. A lot of people say their objection is the first but really believe in the second, which they don't admit up front because they know it is unpopular, while nobody is casual about executing the wrong guy. Well, almost nobody. In other words, they aren't being gasp sincere.double gasp

In arranging our judicial system, and knowing it to be fallible, can we justify granting it the power to kill, when there is the viable alternative of life imprisonment?

You have already justified it by agreeing that some crimes deserve the death penalty. It is true we can't be sure we have the right guy all the time, but it isn't true to say we never can be sure.

Duck said...

Brit,
A very earnest and thoughtful argument, but I'm afraid that I must disagree with you.

To start with the suumary of your argument, which is:

But that is all irrelevant when you address the proper issue, which is: how should we best arrange our system of justice?

It eventually becomes clear in debates that the key question is this: in arranging our judicial system, and knowing it to be fallible, can we justify granting it the power to kill, when there is the viable alternative of life imprisonment?


From my standpoint life imprisonment is not a viable alternative. There is a confusion of purposes here as to what the judicial system is for. As you say, democracy is not the same as mob rule, but you are using mob rule as a red herring, because it is the state that is carrying out the execution and not the mob. The laws that stipulate the crimes that are punishable by death, the procedural hurdles to establish guilt and other restrictions on the process to assure that it is objective are applicable to everyone, those in the majority and the minority. The mob does not decide who gets the death penalty, the law applied fairly and dispassionately does.

I got off of my argument as to purpose, and the purpose of the judicial system is not to make people safe, it is to administer justice. We can argue what that means, but by looking at the most common metaphor for justice, the scale, it is obvious that justice intuitively means to balance the result of actions taken by one member of society against another. A heinous, sadistic and premeditated murder is not balanced by life imprisonment. Death is the appropriate balance.

Peter was on the right track when he indicated that the mob will take action when governments won't. We take the mob out of the justice role by devolving that role to the state, but the state is acting as our proxy, in our interests. You always hear the claim by capital punishment opponents that executing the killer won't bring the victim back. It is especially heart-rending when a parent or spouse or sibling of a victim makes this plea to the public. But the justice system is not in place to answer the injustice done to them, but to the victim.

Look at it another way. For a person to give his loyalty to a community, or a society, a clan, a nation, whatever group he commits himself to, that commitment is based on the answer to one question: what is my life worth to this group? Will they value my life as much as I value it? Another way to ask this question is "what price will they extract in retribution for my death?" This is what binds groups together. This is what makes people willing to sacrifice and die for their group, the knowledge that the members of the group value his life as highly as their own. Sure, this can end up in the infamous "cycle of violence" between groups, the back and forth reprisal killings that seem to go on forever. Modern urban people see no logic in this, only madness, but it does make sense at a very human level. This is what binds groups together. This is what keeps peoples alive. It is keeping the Israeli people alive, certainly.

Societies that are not willing to value their member's lives in that way will be weak societies. People will know that the society does not "have their back", to use an expression. If society doesn't have your back, you won't have it's. When the great calamities occur, that always occur in history, the societies whose members haven't committed their lives to it, because the society has not valued the lives of its members highly enough, will not survive.

annalouise said...

Society can only advance if the treatment of those who choose to act against the rules of civil society and common morality, is better than the treatment by those who choose to act against the rules of civil society and common morality

Society is advanced by a select number of intelligent individuals prepared to spend the time and effort advancing the human race. True democracy is unworkable. Most of society of dimwits and if left in the hands of the general public important issues would be left with the unopened post, or worse decided at the same time the polls are taken.

Fortunately important decisions are left to people like me,

Anonymous said...

Wow.

Peter Burnet said...

Err, say Brit, let's imagine you were being sent to a desert island and you had to choose eight discs to take with you...

Anonymous said...

I'd rather be governed by the first two hundred names in the Boston phone book than the Harvard faculty.

Brit said...

Well, well. Duck and David have now both given an answer to the question. Peter, sadly lacking the courage of his conservative convictions, prefers to wring his hands while sitting astride the fence.

Duck says life imprisonment is not a viable alternative, because only the death penalty makes the group 'dynamic' work.

It's hard to know where to start with something as anti-human as this, but I'd advise you to follow Peter's lead and read some Rumpole.

David, showing an admirably patriotic faith in his country's judiciary and police, says it is acceptable to kill x number of innocent people in the US, because the US number x will be lower than any other country's x.

Hmmmmmmmmmm.

All in all, I've seen more convincing arguments from you chaps. Which brings me to "drawing a line and calling it a wall."

It is like a line, but in the sense of a challenge to come up with an answer to that key question which is not fundamentally a statist, anti-individual answer.

I prefer to keep sentimentality out of this debate, but you only have to imagine that you are the one in a million walking to the gallows, falsely convicted but with nobody believing you. Perhaps that evil genius Shropshire has framed you in revenge for discovering his dark secret.

Understanding the importance of the individual over theoretical concepts of the 'social dynamic' is precisely what distinguishes the Anglo attitude from the continental. For shame, Duck. For shaaaaaame.

Brit said...

Peter:

Your answer is the weakest because unlike Duck and David you're trying to have the death penalty cake without eating the slice of killing x number of innocent people.

"It is true we can't be sure we have the right guy all the time, but it isn't true to say we never can be sure."

Yes it is.

That's precisely where you're wrong and it is the lesson we've been taught over and over again, and is why the irreversible penalty of death was abolished in the UK.

When we "aren't sure we've got the right person" we don't convict at all.

We only convict when we're absolutely 100% sure we have the right person.

But on numerous occasions we've subsequently found that we were absolutely 100% sure, and we were wrong. And have had to give posthumous pardons (or in recent years, releases from life imprisonment).

Improved evidence, DNA evidence etc doesn't change that because policemen and judges are humans.

Even when you have every conceivable shred of evidence, even when you have a signed confession, you cannot guarantee that the system that produced that evidence and that confession is free of corruption.

Peter Burnet said...

Peter...prefers to wring his hands while sitting astride the fence.

It's a little trick I picked up from some friends who elevate not knowing into a sophicticated philosophy.

Brit said...

Not knowing is what humans do best.

It's admitting it that counts.

Hence abolition.

Peter Burnet said...

Boy, I'm sure glad you are keeping sentimentality out of this debate. Cue the orchestra!

We only convict when we're absolutely 100% sure we have the right person.

That is most certainly not true. Trials are very human searches for historical truth that are qualified by all kinds of procedural and evidentiary strictures that are applied for reasons that transcend the particular case, usually to the benefit of the accused, but not always. "Beyond a reasonable doubt" does not mean "with absolute certainty". We send people to the clink with residual doubts all the time. Presumably you accept all the human limitations and fallibilities in the system when they result in punishments other than capital punishment, such as life imprisonment in a Super Max, but for capital punishment you would only accept all-knowing divine guidance. It's a perfectly respectable view, but it isn't the only one and it sits on baseline morality, not on practical questions relating to proof. And it does compel you to face up to the Wests and Husseins and stand tall when you say executing them would be morally wrong as opposed to fretting about imaginary weaknesses in the prosecutor's case.

You see, Brit, you really are a very religious man.

Brit said...

The Super Max thing is amusing as a piece of self-defeating rhetoric.

So capital punishment is necessary for society because it is the ultimate punishment. Except it isn't, Super Max is.

Otherwise all of that, if we define 'religious' as 'principled' is true. And where does it leave you, Peter?

Peter Burnet said...

I define religious as religious.

BTW, I trust you do realize that your continued beating the drum for the pragmatic "we can never be sure" line puts you in a similar position to all us Darwinist sceptics whose criticisms about lack of probative evidence get shakier as scientific research progresses. This isn't the age of Hercule Poirot and forensic science has made gargauntuan strides in closing off a lot of uncertainties. In my town, I don't think there has been a not-guilty verdict for murder for years--the proof is just overwhelmingly persuasive. No doubt this trend will continue, and if you keep using more and more abstract and ethereal arguments about what we really "know", some day a clever man of letters is going to kick a rock in front of you and scream "I refute it thus!"

Brit said...

No, because as you said, for a sentence of capital punishment I "only accept all-knowing divine guidance."

Actually it's more than that. It must be all-knowing and incorruptible.

Which nobody has now and never will.

Anonymous said...

Now look, traditional marriage has to be honoured in order to protect our kids from....

Oh, sorry Brit. For a moment there I thought I was arguing gay marriage with Skipper.

Brit said...

Eeeezy! Eeeezy! Eeeeezy!... You shaddaaaaaaap!

Hey Skipper said...

In theory, I have absolutely no problem with capital punishment.

Unfortunately, there is no such thing as a good theory that doesn't work in practice.

Brit's concerns about wrongful convictions are sound, but could conceivably be overcome by making evidence rules for capital cases such that a positive result would be so overdetermined as to make a subsequent overturn impossible.

That might very well leave a lot of guilty verdicts outside the reach of the death penalty, but would at least render moot the problem of wrongful convictions.

However, there are two other problems.

First, the death penalty is too capricious. If it was to be leavied with anything like moral consistency, death rows would be swamped, and (if the penalty was to have any meaning at all), the rate of executions would probably become far more than any modern polity would tolerate.

Second, the death penalty consumes a huge amount of resources in its administration, for which better uses would not be difficult to find.

David:

On the other hand, it is ok to allow some innocent people to be killed, because it will only be a few, and it will be for the greater good of society.

That is an uncommonly empty statement for you. Just how much good does capital punishment do for society, even remoteluy approximately? How many innocent people need be executed to outweigh the former? One, twenty?

AOG:

You analogy with any large scale action by the state is inappropriate. Absent combat, which really has no place in this discussion, the state conducts no actions of any kind, other than capital punishment, whose sole intent is death. In all those other actions, death is a non-specific, unavoidable, outcome.

For capital punishment, however, death is both specific and avoidable.

Brit said...

Skipper:

With that post you have singlehandedly restored my faith in good blogmanship.

I can see some small value in "making evidence rules for capital cases such that a positive result would be so overdetermined as to make a subsequent overturn impossible" in that it effectively abolishes the death penalty without removing the official deterrent, for whatever that's worth (not much, I suspect, or death row would be empty).

But you've still got the problem of corruption: the evidence might be over-determined - but how was the evidence produced?

Other arguments against capital punishment are sound: there is no evidence that it works as a deterrent and plenty that it doesn't; it is perfectly obvious the likelihood of receiving a capital sentence is largely determined by how much you can spend on a defence team; from a Christian perspective, it eliminates the possibility of repentence and redemption...etc

But you don't really need any of those arguments, since the fallibility one is sufficient.

Duck said...

Brit, Brit, Brit.....sigh

Duck says life imprisonment is not a viable alternative, because only the death penalty makes the group 'dynamic' work.

Nice scare quotes. Nice euphemistic dismissal of my argument too. What you refer to as 'group dymanics', a nice, dismissable soundbyte, is otherwise known as human nature. Dismiss human nature at your peril.

It's hard to know where to start with something as anti-human as this, but I'd advise you to follow Peter's lead and read some Rumpole.

It's not anti-human at all, in fact it is the very essence of humanity at its core. You're of the school that will only recognize the most altruistic and pleasing of behaviors as human, and denying that any of the other rough bits of man's nature have any place in a society, as if they are optional auto dealership add-ons that can be popped off and left in the garage with no worry that they might play some vital role in the functioning of the car. Human social dynamics evolved over a very long period of time and imbed countless lessons through trial and error of how indivdual human behavior is best used to promote a successful clan.

This is another instance when I can declare "materialist, enlighten thyself". How is it that so many bright people that so thoroughly believe in the embedded wisdom of the evolutionary process think that they can so easily toss out those hard-earned, inherited lessons where our own natures are concerned, and improvise some sort of ad-hoc social dynamic out of high-sounding humanist rhetoric and believe that we'll just adapt to our new social paradigm like pigs to a mud-puddle?

Retribution plays a very important role in human social dynamics. It has been an integral part of just about every human social grouping, from tribes and clans to kingdoms, empires, city-states and democratic governments up to the very recent past. Retribution is not some savage sadistic blood-lust that makes us one with the criminal. It is a social compact, a right retained by the individual and only relinquished to the group with the promise that the group will exact his retribution for him.

Retribution "works". It has been studied using Game Theory and modelled on computers. In a variant of the Prisoner's Dilemma game called Iterated Prisoner's Dilemma Robert Axelrod demonstrated that the most successful strategy for the game player was to start out cooperating with the other player, but to retaliate at the first defection by the opponent and every subsequent defection. Win-win situations are only possible to players who are able and willing to punish defectors.

Such individual tit-for-tat actions within a group or tribe, village, city or kingdom will destroy the order of all members if allowed to run on indefinitely, which is why the role for adjuticating these disputes were taken up by the state. But by taking on that role, the state cannot fail to act on it. Order is not secured only by the fact that a single authority posesses a monopoly on violence . If that authority does not deliver on the demands for justice by its aggrieved subjects, then vigilantiism is always a possible threat. You cannot maintain order without justice.

I prefer to keep sentimentality out of this debate, but you only have to imagine that you are the one in a million walking to the gallows, falsely convicted but with nobody believing you. Perhaps that evil genius Shropshire has framed you in revenge for discovering his dark secret.

If I made a list of the top 100 unfortunate fates that could befall me that I fear the most, this one would not make the list. I would worry about dying in a car accident, being killed by a burgular, having a heart attack, getting hit by lightning and being lanced by a falling icicle before worrying about that. Is this really something that keeps you up at night? It is a horrible fate for sure, but mitigated by its extreme rarity.

Understanding the importance of the individual over theoretical concepts of the 'social dynamic' is precisely what distinguishes the Anglo attitude from the continental. For shame, Duck. For shaaaaaame.

Theoretical concept???? There is nothing theoretical about human nature. You should really have a deep think sometime about what makes people tick. If you think that the anger and rage that a person feels when one of their own is brutally and senselessy murdered is theoretical, then I cannot help you understand any better. That rage, that anger are good and proper, they are right. That is what healthy, functioning human beings do. We are alive as a species because of that. When we learn to tolerate the most vile crimes that can be perpetrated against one of us, then we've lost the stickiness that keeps us together. It doesn't surprise me that in this modern society of ours that teaches our young to tolerate such monsters as Ted Kazinski or Charles Manson, that few of those young would even consider enlisting in the service to fight and die for their society.

Duck said...

Skipper writes:

First, the death penalty is too capricious. If it was to be leavied with anything like moral consistency, death rows would be swamped, and (if the penalty was to have any meaning at all), the rate of executions would probably become far more than any modern polity would tolerate.

I don't understand this objection at all. If the punishments are handed out fairly and evenly for the right crimes and following the right process to ensure that due process is served, then what matter the number? How is it that we shrug off 40,000 deaths a year on our highway, but would agonize over a smaller number of rightful executions of people who deserve their fate?

Second, the death penalty consumes a huge amount of resources in its administration, for which better uses would not be difficult to find.

Not the "resources" objection! If the task is important, then the resources are well spent. Delivering justice is either important or it is not, but if it is important, you don't make it compete for resources with other things. What would you spend those resources on that would be more important than seeing that justice is delivered?

You analogy with any large scale action by the state is inappropriate. Absent combat, which really has no place in this discussion, the state conducts no actions of any kind, other than capital punishment, whose sole intent is death. In all those other actions, death is a non-specific, unavoidable, outcome. For capital punishment, however, death is both specific and avoidable.

Why does combat have no place in this discussion? Any analogy that highlights the operative principles has a place. Your last point is irrelevant. The death in capital punishment is wholly appropriate when the person being put to death is truly guilty. The point of the argument is to avoid wrongful, innocent deaths. In that case, capital punishment is very comparable to any other situation in which there is no intented outcome in which innocent persons are killed, but which due to the sheer volume of services or actions taken the officials know that there will be some accidental cases where people are killed. It is perfectly comparable. If you can avoid innocents from being put to death by stopping capital punishment, then you can do the same by not providing any of the other services that can cause unintended deaths.

The only real argument here is whether the execution of deserving criminals is a necessary service that government provides to society, or whether it is not necessary. If it is necessary then it must be provided. I can think of no other human activity in which we've mandated that the activity cannot be performed if there is the chance that even one person will be accidentally killed while taking part in it. People die taking baths, people die from vaccinations, people have been killed by escalators. There is no call for banning these.

Duck said...

I've been searching the web for an article about capital punishment by Dennis Prager, who despite my other differences with him has expressed his thoughts on capital punishment in ways that are very close to mine. I haven't found it yet but came across this one by David Gelernter, a professor at Yale and one of the victims of Ted Kaszinski. It is also very close to mine:

http://www.utne.com/cgi-bin/udt/im.display.printable?client.id=utne&story.id=392

Harry Eagar said...

What M. Ali said.

And furthermore:

1. If you are going to frame it in moral terms, then if the system makes mistakes in capital trials, then it must also make them in traffic court. It is as immoral (if not as consequential) to mulct a man of 25 pounds via a flawed system that you have conceded is flawed as it is to hang him.

2. In some few cases, the question of guilt is not open, and so any objections to hanging based on the possibility of an error must be forgone and the objections to that particular hanging disappear.

3. Life imprisonment does not exist -- few lifers actually die in prison, they get out for one reason or another -- so it is not a foolproof substitute for hanging. And lifers kill guards, so even inside they are not really defanged.

4. The word deterrence has not, thankfully, been used here, but it is true that some people are homicide-prone. Note, I do not say murder-prone. As a murder-trial watcher over the years, it has come to my attention that some people seem to end up with other people dead nearby over and over. Given the standards of proof we demand, the level of responsibility may never rise to the level that courts recognize as murder, yet people keep getting killed anyway.

A system that is meant, I hope, to protect society needs to eliminate the homicide-prone. The only secure way to do that is to hang them.

So, when you get down to it, I am arguing for hanging not merely heinous murders like Hindley. I am, in some cases, ready to hang a man for manslaughter. Even involuntary manslaughter, if there are enough of them.

5. There are simple ways to greatly reduce the number of false convictions.

One would be to acknowledge the work of Elizabeth Loftus on eyewitness testimony (see her book, 'Eyewitness') and, in order to hang, require that if one of the three kinds of evidence used is eyewitness testimony, then at least one of the other two types also corroborates. In other words, no death sentences based only on eyewitness testimony.

6. Getting away from homicide, I agree with Brit's disquisition about how representative democracy works.

However, for marginal concerns, the way it works guarantees that the majority will never have its voice heard.

That is, when you go to the polls, you don't get to vote on, say, the best way to restructure Social Security. You have a choice between A an B (in Israel, aleph, bet etc. to a total of about a dozen), and generally if you are a single-issue voter, you are OK. But if you are capable of having more than one thing on your mind at the same time, seldom will you have a candidate who is solid on all of them.

Thus you will, wil he or nil he, end up voting for candidates who will vote against your preferences on some issues.

Capital punishment will seldom or never advance to the first rank of issues, so the consensus of those who know what's good for us better than we know ourselves will continue to let murderers go free.

This seems to be an inherent flaw built into our kind of system.

A particularly nasty wrinkle on this, in America anyway, is the collusion between our betters in an administration (in states with initiative) who collaborate with pressure groups to roll over on lawsuits challenging popular referenda and agree to consent decrees which consent to defy fundamental liberties. (What has happened to Michiganders like Skipper in the racial admissions referendum.)

Brit said...

Duck:

I still can't see your argument as anything other than valuing the importance of capital 'retribution' in making a society function, over the value of individual life.

I could object to that on practical grounds: there is no evidence that societies without capital punishment are more dysfunctional than those with it (indeed, if you look at countries which do execute, they are overwhelmingly dysfunctional); and there is no evidence that it acts as a better deterrent than life imprisonment.

But even if these practical problems with your argument did not hold, I would still object to it on the grounds of principle.

You also say:

The only real argument here is whether the execution of deserving criminals is a necessary service that government provides to society, or whether it is not necessary. If it is necessary then it must be provided. I can think of no other human activity in which we've mandated that the activity cannot be performed if there is the chance that even one person will be accidentally killed while taking part in it. People die taking baths, people die from vaccinations, people have been killed by escalators. There is no call for banning these.

And Harry says:

If you are going to frame it in moral terms, then if the system makes mistakes in capital trials, then it must also make them in traffic court. It is as immoral (if not as consequential) to mulct a man of 25 pounds via a flawed system that you have conceded is flawed as it is to hang him.

These are the same as SH's arguments above.

They are also directly analagous to the anti-war arguments put forward by the left: removing Saddam is not justified because there are lots of other equally bad dictatorships around that you are not removing.

No justice system can ever be perfect or infallible, but unfortunately we have to have a justice system.

We must therefore construct the least worst one.

That people die in car accidents has no bearing whatsoever on how you construct your legal procedures.

Unfortunately, innocent people will be sentenced to life imprisonment. Some may eventually clear their names and be released (incidentally, don't underestimate the importance to wrongly-convicted people of clearing their names. it's not just a case of escaping punishment), but most maybe won't.

But capital punishment is unique. Indeed, your argument hinges on it being unique.

Peter Burnet said...

Duck, that article by Gelernter is very good, as most of his stuff is, and it really poses the challenge our distinguised host should try and answer. I don't think many people would buy Harry's analogy to the 25 pound fine and I have no idea what Skipper means by "moral consistency". It seems to me he spends most of his time on other issues complaining about objective morality being enforced all too consistently. In some way it is our demands for consistency (tying up judical discretion on sentencing, submitting the perogative of pardon to legal restraint, judicial review and abstract "policy" guidelines) that is distorting the whole thing and I suspect in some cases it is being done to force Americans to condemn more folks than they want to death so that they'll give up the whole thing.

I take Brit's point to be that capital punishment debases us in some way as humans, and he is far from alone in thinking that. It's one issue that brings progresive materialists and a lot of religious folk, especially Christians, together, which I assume is enough for Harry to take the other side. He is right up to a point--there is something very solemn and awesome and unsettling about it that simply doesn't exist with other punishments, not even torture. We know we are on the very edge of eternal "soulteasers" with this one and we can't shake the sense that Someone or something is watching us closely.

But Brit's unfortunate and distorting "mob" metaphors (Gelernter puts paid to that libel)and ab initiodisdain for anyone who disagrees with him keeps him from addressing the complementary argument--what does it say about us morally (and as moral beings responsible for our actions) if we accept that no crime, no many how heinous deserves the ultimate penalty. All kinds of psychologial, spiritual and semi-pragmatic issues are tied up in that and Duck is right about facing up to the dark side of human nature, except it isn't that dark. If my child is tortured and killed by a perv, just what is dark about me and my community believing he has forfeited his right to live? Vengeful compared to what, Brit, a computer? I see little difference between your position and the emotions that inspire it and that of all those progressives that say we must never go to war because innocent civilians get killed.

Brit is having a fun time taunting me for ambiguity, but the more I hear him, the more comfortable I am with it. I'm very happy they hanged Hussein and I believe there is something terribly wrong that West and Bernardo are still languishing in prison and spending about $75,000.00 a year of our money. OTOH, I remember feeling very upset and morally soiled when they executed Karla Faye Tucker, and only partly because she was a woman.

M Ali said...

Modern econometric analysis across a range of independent studies has found that each execution results in an average of 18 fewer murders.

Brit said...

Peter:

You've got a bit carried away with the mob point. That was aimed at the argument mentioned in the main post about popular polls versus representational democracy. Nobody in the comments has taken that position - everyone has agreed with my views.

As for mob justice, I assume everyone here also agrees that the popular opinion of a suspect should not influence his trial. Indeed, we take great pains to try to select 'unprejudiced' juries.

Peter, yet again you fail to acknowledge the difference between a crime deserving death as retribution, and the problem of certainty that the accused is the perpetrator of that crime.

It is an understandable human reaction that you should want revenge yourself on person P who abused and killed your child.

But you don't get to decide that suspect S is also person P - the criminal justice system does, and sometimes you, and it, get it wrong.

And since it is not a zero-sum game between execution and freedom, life imprisonment is the least bad solution to this problem, unless you are willing to sacrifice an unknown number of innocents.

This is where I see you wavering, Peter. You simply have to answer yes or no to the question: do the perceived benefits of capital punishment to society justify the killing of an unknown number of innocent people?

Duck and David have both said yes. I say no.

I say no partly on practical grounds, because, (contra M Ali's study above), I think that if it had the benefits claimed for it, death row would by definition be empty instead of chock-full; but even without these I would still say no, because I value the individual over the social dynamic.

So what is it, Peter, yes or no?

(A point of fact. Fred West is not using up any taxpayers money - he committed suicide while in custody).

Peter Burnet said...

do the perceived benefits of capital punishment to society justify the killing of an unknown number of innocent people?

Duck and David have both said yes. I say no.


And Peter doesn't accept the premise underlying the question. Clever, eh? Seriously, I think you are widely overstating the extent of that problem and opening up a hornet's nest with that deft insertion of "innocent". Very, very few cases turn on whether they got the wrong guy. Most of them are about mental capacity, provocation, degree of intent or constitutional issues of procedure. The number may well be an unknown zero. I think you are on firmer ground with corruption, if by that you mean the politicization and bureaucratization of the investigation and prosecution, which are notoriously hard to reverse once they get going. But even then we're almost always dealing with pretty scummy types (Harry is right there) and Duck is right that your worry that it could happen to you is more than a little self-indulgent. Having read the stirring account of how you defended Ms. Brit's honour so bravely in Crete and lowered vengeance to a whole new level of hyper-civilized sublety, I'm not too worried.

Also, you old muddler, you are mudding determination of guilt with sentencing. The first is and should be impersonal and dispassionate, but the second does very much take account of the effects on the victim. Ever hear of victim impact statements? In fact, more and more and too much. A perp faced with victims trotting out one shrink after another to testify how their lives have been destroyed to a point that only "closure" (nice euphemism, eh?) may save them may do worse than the guy who killed the child of a religious couple who forgive him on CNN even before the funeral.

Canada hasn't had capital punishment for forty years. I think we should in some cases and that we should revisit the issue. I want a Royal Commission to probe and explore all these issues and concerns and make clever recommendations. I promise to pay extremely close attention and then get back to you.

Brit said...

Ok, so you doubt that an unknown number of people will be wrongly convicted.

I'll take issue with that. We know the number of wrongful convictees for capital offences is not zero.

In Britain there was the Guildford 4 and Birmingham 6.

In America, since 1973, 123 people in 25 states have been released from death row with new evidence of their innocence.

And that's just in two countries which can claim to have the most regulated justice systems.

It's very difficult to guess what the number is in less, shall we say, scrupulous countries.

As you say, there are lots of arguments for and against capital punishment, which are all very interesting (and personally I think the anti ones more generally stronger all round), but this thread is specifically about the fallibility argument.

Duck said...

I still can't see your argument as anything other than valuing the importance of capital 'retribution' in making a society function, over the value of individual life.

You are wrong, the capital punishment argument values human life more, because it extracts a higher price, indeed the ultimate price, from those who willingly take an innocent life.

I could object to that on practical grounds: there is no evidence that societies without capital punishment are more dysfunctional than those with it

That's a very arguable point. We westerners are very happy measuring things like life exprctancy, education levels and income when defining what functional societies look like, and conveniently overlook things like divorce and illegitimacy rates, drug addiction, crime and other factors.

I mentioned one factor above, and that is how willing are young people to commit their life to their society. Those willing to elnist in the services, or even consider enlisting, are in a minority. Those even willing to commit to a marriage partner is lower than in the past, and the number of women willing to have children has dropped. I think western societal cohesion is less than it once was, moreso in Europe than in America but waning here too.

I have more to say, but I have to toddle off to work now. More later.

Peter Burnet said...

but this thread is specifically about the fallibility argument.

You are the boss, but I would have thought if that was your main objection you would show more interest in discussing how to make the system less fallible.

DNA analysis has made a huge, huge difference and I suspect was behind most of those reversals you cited.

Brit said...

Peter:

Skipper offered the same suggestion above: just massively overdetermine the evidence required for a capital sentence.

But even massively overdetermined evidence doesn't eliminate the possibility of corruption.

Brit said...

Duck:

You are wrong, the capital punishment argument values human life more, because it extracts a higher price, indeed the ultimate price, from those who willingly take an innocent life.

Yes, I've heard that before, but it has never made the least bit of sense to me.

Putting aside the logical weirdness for a second (we'll show you that something is not do-able by doing it), let's look at the practical evidence.

For me, family cohesion, drugs etc has nowt to do with the existence of otherwise of state execution. The murder rate, which attracts capital punishment, is the only factor that you can definitely say might be affected by the existence, symbolic or actual, of the death penalty.

Yet the US murder rate is slightly greater than those of Canada, Britain, Australia and New Zealand put together, all of which have no state execution.

And who is actually executed in the States? To a very large extent, blacks who kill other blacks.

And how has black (and indeed mainstream) culture responded to this powerful symbol of the importance of human life?

By buying the gangsta rap, violence-glorifying output of Death Row - check the name! - Death Row Records by the busload. Not to mention Vice City on the PS2.

As a symbol of the sanctity of life, the death penalty doesn't make sense, and it certainly doesn't work.

Harry Eagar said...

Peter sez: 'I would have thought if that was your main objection you would show more interest in discussing how to make the system less fallible.'

Yes. When you get down to cases, even people who claim to find hanging immoral or inefficient or otherwise objectionable sometimes find themselves thinking that a certain person (Saddam, say) deserves hanging.

So hanging has a certain utility, even charm. If the system is broke, first consider how to fix it. It may not be necessary to simply junk it in despair. (Rather the same argument I make for Christianity.)

And let's do get down to cases. Karla Faye Tucker bothers me not at all. As the prosecutor said when asked whether he thought he could get a hanging jury in a capital murder case: 'Not capital murder. Capital pickax murder.'

I will have more to say about pickax murder another time, but right now I want to examine the case of Herman Yap.

Yap, the operator of a clamshell dredger, and his supervisor were in a plantation field, with no one else around for hundreds of yards.

Somehow, for some reason, the supervisor ended up with his head plucked off by the clamshell.

What that was about nobody knows, because Herman Yap never said a mumblin' word.

I didn't cover Yap's trial, but I was at his arraignment. Never saw a colder man, which is not evidence although it may explain why he never talked.

Anyhow, there was no doubt about who did what to whom, and I am either unconcerned about or unpersuaded that there were any other issues like ambiguous intentions, red rage, drug use, mental aberration, retaliation or whether Yap's mother did not love him.

Call me unimaginative, but I cannot think of any circumstances sufficient to extenuate plucking a man's head off with a clamshell dredger.

Hard to justify (in the sense of 'do justice') not hanging Herman Yap.

Brit said...

There are two different questions:

1) does x deserve to be hanged?
2) can you justify creating a justice system which includes irrevocable penalties when you know it is fallible?

In this post I'm asking the 2nd. In fact if you answer 'no', as I do, you end up having to answer a third question with 'no' even if your gut reaction answer to 1 is 'yes'.

The third question is:

3) Should x be hanged?

Turns out 1 and 3 are totally different questions. Principles take you to surprising places, but there it is.

Harry Eagar said...

My answer to 2 is yes, so I have no problems with 1 or 3.

But, though you blew it off, my remark about traffic court is exactly to the point. The old 'perfect is the enemy of the good' problem.

If I did say no to 2, then I would derive very little comfort from the fact that, from time to time, I would have participated in imprisoning an innocent person for 50 years, but that at least I would not have killed him.

Brit said...

The "perfect is the enemy of the good" argument applies in a zero sum argument. It doesn't apply if there is a viable alternative of life imprisonnment.

Interestingly, I of course rely on the "perfect is the enemy of the good" argument to justify imprisonment over anarchy.

Harry Eagar said...

So, let's examine the viability of life imprisonment.

First of all, it seldom lasts for life, which would be an argument against, I think.

But consider Anthony Kekona. When he was in his early 20s, he took money (about $100) to kill two people he didn't know.

There is no question he did it, or why. He's acknowledged it.

There have, nevertheless, been several attempts to spring him. One ground was that the person who paid him got off easier. Equal justice, you know.

Another was procedural. That worked, to the extent that he had his conviction overturned, though later reinstated.

He is a troublesome man. In the usual prison for hard-timers he was so much trouble that the wardens, uniquely, transferred him to Maui. He wanted to be closer to his family. He promised to behave in exchange.

But he doesn't. He is in a lockup with other murderers, not intended for that, and -- as you might guess -- they have interpersonal conflicts.

Kekona, the alpha murderer, occasionally beats one to a pulp. He is then tried and convicted and not punished.

He hasn't killed anybody in the past 30 years. But how anxious would you be to work alongside him?

Brit said...

Those are issues for the parole and prison systems and the judicial interpretation of 'life imprisonment' and would equally apply to any non-capital sentences, which is most of them, even the murder cases and even where capital punishment exists.

It isn't the case that the only solution to problems with parole is death.

Harry Eagar said...

OK, 'nother example.

As you know, I am an uneducated redneck and an antiplatonist. I don't know how ot derive justice systems inductively.

Nor do I expect the one we use to conform to some ideal.

All the ones I know are flowed, and while I deplore executing the innocent, I equally deplore not executing the guilty.

If they are guilty enough. Here's an example of guilty enough:

This was the most celebrated crime in Iowa in the 20th century. A 'drifter' living at a YMCA kidnapped a young girl attending a wrestling match at the Y with her family. I'll spare you the details, but he did not merely rape and strangle her.

He was suspected because he had been seen going down a stairway with a child-size bundle wrapped in a rug.

Some days later -- with the girl still disappeared -- he was captured across the state. A Polk County deputy was sent to bring him back, alone, but a defense lawyer agreed to that arrangement only if the deputy agreed not to question the suspect in the car.

He didn't, but he ruminated out loud that the parents must be going through hell, not knowing where their daughter was, and that a good Christian probably would do something to relieve their uncertainty, if he could.

The perp then volunteered to lead the deputy to the girl's body, which was thrown in a ditch (and, we may speculate with fair confidence, might never have been discovered otherwise).

Conviction, life sentence. Appeal after appeal, on the grounds that the suspect was improperly questioned and denied his rights.

The conviction was overturned on those grounds 3 times, and eventually the killer walked free. He's free now.

There is no doubt he is guilty. If he'd been hanged before the first appeal, justice would have been done.

Justice failed. The moralists, however, seem not to mind in this case. Iowa had and has a large, passionate anti-capital punishment community. Not one, ever, complained that the legal system failed in this case.

I am not including you, Brit, in this condemnation, because your objections are well-thought out and unemotional. They are difficult to refute -- impossible unless you take a certain, fairly unpopular attitude toward crime and morality in general.

But in my experience, 99+% of opponents of the death penalty are devoid of morals, imagination or human sympathy.

If anybody did come up with an ironclad argument against hanging, I'd have a big emotional struggle to accept it, because I so deeply despise the anti-hanging crowd.

Brit said...

Leaving aside the fact that finding groups you don't despise is the difficult question, your comment hits the nail of this issue on the head.

Not executing is a very difficult thing for human beings, precisely because of horrible stories like that, and horrible stories like Fred West.

We all want to hang them, chop off their heads, as Ali put it, blast them in to space.

That's natural human reaction. But anyone can say they feel that - it's nothing to boast about.

But all it comes down to is the immense difficulty of coming to terms with the fact that "do some crimes deserve death as punishment?" is the wrong question.

That's the question that you, Duck, Ali, David and Peter are all instinctively answering with the many different, dare I say, scattergun, pro arguments.

But it's the wrong question. It took Britain til 1965 to work that out and Parliament voted against it every year since - and not because Parliament is dominated by bleeding hearts.

1965 is a long time after Magna Carta, a long time after the Divine Right of Kings faded away, a long time after habeus corpus and trial by jury. All those things are driven by a recognition of fallibility and the importance of the individual over the 'good of society'.

But once you have all those things, abolition is inevitable, whatever our natural instincts say.

Harry Eagar said...

And some deserve to live.

No, the question at bottom is, do we trust our system of justice?

You don't and want to carve out a special exemption from it for -- oddly enough -- the worst actors.

I don't either. But I accept the flaws because (other than tinkering such as changing the evidentiary rules about eyewitness testimony) I cannot think of a better replacement.

You are actually attacking the premise of trial by jury with equal treatment and judicial review. Those go back even further than Magna Carta, back to (at least) Henry I and his justiciars.

If I were to take the same view, morally speaking, as you, I would be on fair ground to gather a mob and lynch people who are indubitably guilty but who are walking the streets free because 'justice' proved unable to touch them.

For the most part, we don't lynch people, even when we should, so it's going to be hard to get me to go on a guilt trip about errors the other way.

We have a system. It isn't perfect (any more than medical diagnosis is, which equally has the drawback of occasionally dooming the blameless to death). I don't know a better system.

For an impassioned statement that tends to negate every post I've made here, see Dorothy Rabinowitz in today's Wall St. Journal.

Brit said...

You're right that I don't trust the system to be infallible. That's not just on theoretical grounds - we have plenty of actual cases. But that's why we have courts of appeal and re-trials.

I do trust it to work most of the time, but capital punishment is qualitatively different to all other punishments in its irrevocability.

Otherwise, everything you say would be true if it were not the case that life imprisonment is a viable alternative.

Above you generously admit that my arguments "are difficult to refute -- impossible unless you take a certain, fairly unpopular attitude toward crime and morality in general."

There are 3 ways of refuting it:
1) take an 'unpopular' view of justice (either mob justice or essentially, Stalinism)

2) prove that life imprisonment is not a viable alternative

3) assert that the system is infallible.

Nobody can seriously go for 3. No, shall we say, 'conservative humanist' can go for 1 and be consistent. Which leaves you with 2. But there you really do have to make an incredibly strong case, with evidence, for the advantages of capital punishment over life imprisonment to justify killing an unknown number of innocent people.

One reason I stick exclusively to this anti argument - and there are plenty of other strong ones like the ones Skipper mentioned - is that I think it exposes a very interesting counter-intuitive point.

A leftist could quite happily support capital punishment on the grounds of benefit to society. A conservative cannot.

Yet of course, it is leftists that tend to be anti, for quite different reasons, and conservatives tend to be pro, because they instinctively answer the wrong question honestly.

Harry Eagar said...

We disagree oabout whether it is a fact that life imprisonment serves the function you need it to serve.

In the example I gave, the guilty party went free not because he was innocent but because a functionary asked an allegedly improper question.

The question having been asked, the supreme court decided that nothing -- no conceivable form of mitigation or correction -- could possibly permit a guilty man to be punished.

That is as irrevocable as a hanging.

I don't expect most people to think that is also as objectionable and immoral an outcome as hanging an innocent man, but I do.

I do not think my opinion is either left or right, nor do I expect many people to share it. But I've thought it over for a long, long time, and that's where I ended up.

Brit said...

I can understand your complaint, but not its link to the abolition or otherwise of state execution.

Harry Eagar said...

I want to protect the system, remembering (not to the very word) the line from Bolt (?) about the dilemma of 'what you will then do, the laws being down.' '

It's true, not anything goes. We have given up drawing and quartering.

Still, your contention that life imprisonment is just as good would sound odd in California, where (allegedly, I have not investigated to see how much hype is in the reports) murderous criminal gangs are operating in the penitentiaries and directing other murderous gangs outside, blamed for hundreds of murders each year. Since the directors are already lifers, no one can touch them.

I also direct you to Henry Petroski, one of the few philosophers of engineering. So far as I understand my own mind, Petroski did not enter into my thinking about capital punishment, but in 'To Engineer is Human' he argued that the goal of engineers should not be to build bridges with such margins of safety that none of them ever falls down, but to push the envelope of design to the point where, occasionally, one will fail.

The reason is that overengineered bridges are wasted resources. Society benefits from cheaper bridges.

I don't know how far I buy into that argument. Computer-design testing has gotten a lot better since Petroski wrote 'To Engineer is Human.' He has a new book out, 'Success through Failure,' and I'm looking forward to reading it.

Brit said...

California has the death penalty so it ought to be a model society.

Unless of course, capital punishment has absolutely jack influence on the murderousness or otherwise of the society.

Harry Eagar said...

'Absolutely jack influence' would be my guess.

The death penalty has no discernible deterrent effect, except when it is applied to the homicide-prone.

I've never advocated it for deterrence (except as a side benefit), only for moral effect. I believe in retribution.

What usually happens when you turn the other cheek is, your other cheek gets slapped.

Convictions in California prison murders (or outside murders directed from inside) are difficult, because witnesses are terrorized. That's a problem without reference to having or not having a death penalty.

California has a death penalty in theory, though hardly in practice. If the problem is murderers operating from inside prison, then even a death sentence gives them another 25 years to operate from prison.

It was a governor of California who kept a plaque on his desk with a number -- the number of Californians murdered by people who had already been convicted of murder and let out. By the end of his term, the count was approaching 700.

Harry Eagar said...

I also quarrel with your headline, 'State killing is for statists.'

You could as easily say, 'Collecting taxes if for statists.'

Of course. Substitute for state, society.

I also quarrel with your contention that capital punishment is stalinist. An honest, public legal system, even if not perfect, is not the same as a party terror organization masquerading as a legal system.

Hey Skipper said...

Brit:

I can see some small value in "making evidence rules for capital cases such that a positive result would be so overdetermined as to make a subsequent overturn impossible" in that it effectively abolishes the death penalty without removing the official deterrent, for whatever that's worth (not much, I suspect, or death row would be empty).

I rather suspect that most murder convictions are so over determined that appeals to the question of guilt would be wholly ridiculous; after all, DNA evidence is just as culpatory as it is exculpatory. We could easily render the question of mistaken conviction moot, yet still leave plenty of noose filler. The cases of which you speak are more about prosecutorial over zealousness leading to convictions on flimsy evidence than they are about corruptly invented evidence. You neglect the terminal problem with corruption of this sort: as it is the attempt to manufacture an alternate reality, it inevitably falls prey to leaving out something important.

Your objection to the complete lack of deterrent effect is sound, but it is a consequence of our puzzling inability to establish over determined rules of evidence in order for a case to be capital. A very likely consequence of this failure is the moral inconsistency I mentioned (and that Peter misunderstood). If all premeditated murder convictions -- rather than a random few -- with over determined evidence automatically received the death penalty, and the death penalty was carried out within a year, I'll bet there would be little question as to the deterrent effect. At the very least, we would get to see a variant on the Taranto Dilemma: murder rate down despite increase in executions.

So the evidence rules are fundamental: sufficient rigor would leave plenty of case where guilt is established without any fear of contradiction. Assigning the death penalty for all such cases involving premeditation could easily provide grounds for eliminating the endless (and astonishingly expensive) appeals process impeding expeditious executions, with all the inevitable attending deterrent effect.

But to go from a good theory to a theory that works in practice would require the following:

-- strongly over determined evidence rules
-- applying the death penalty to all premeditated murders
-- eliminating the protracted appeals process
-- the public having the stomach for thousands of executions annually

The first would be a doddle. The rest are far more problematic, despite being, in principle, simple.

Consequently, while I believe the death penalty is very often justified, and can be made immune from erroneous convictions, the other factors that must come into play just don't seem within the realm of possibility.

Therefore, while I agree with you that the costs of capital punishment outweigh its benefits, I don't agree that it is necessarily so.

Duck:

I don't understand [the capriciousness of the death penalty] at all. If the punishments are handed out fairly and evenly for the right crimes and following the right process to ensure that due process is served, then what matter the number?

First, my objection is to the current state of play. Whether it could be consistently levied is beside the point. As a matter of fact, it isn't. The unanswered question is whether the body politic in fact has the stomach twenty times the current execution rate. The endless bleating of Amnesty International must be taken into account.

Not the "resources" objection! If the task is important, then the resources are well spent.

Yes, the resources objection. I can easily quantify the resource delta involved in capital cases. The only way you can answer the question is to similarly quantify the importance of the task. Can you, even remotely approximately?

Why does combat have no place in this discussion?

Because it is the consequence of state policy. Murder is completely counter to state policy. There is simply no way to meaningfully bring the former into a discussion involving the latter.


The only real argument here is whether the execution of deserving criminals is a necessary service that government provides to society, or whether it is not necessary.

I think it is a slam-dunk case that capital punishment is not necessary whet-- our society's destiny is not riding on whether 50-ish or zero murderers get executed annually.

Rather, the real argument is whether the costs outweigh the benefits. I strongly suspect the benefits of the paltry and capricious executions would be quickly swamped by one bona-fide erroneous execution.

If the anti-death penalty activists were serious, they would withhold compelling evidence of innocence until after an execution, rather than getting the person off death row while still possessing a pulse rate. Morally dodgy? Perhaps. Would it put paid to the death penalty in the US? I wouldn't bet against it.


BTW, for those who are willing to tolerate a few executed innocents, then perhaps this travesty, which would surely require inventing the term "Kafka-esque" if it didn't already exist, should be very cautionary:

Neither Mr. Seligman nor the other accused Duke students will ever have to contend with a punishment like the one meted out to Gerald Amirault, who was sentenced to a 30- to 40-year term for something that never happened--atrocious sex crimes that never took place, of which there was no physical evidence, or anything resembling a credible allegation. What did it matter that the child's testimony that resulted in Gerald's conviction had claimed rape with a large butcher's knife--one that had magically left not the slightest injury? The jury's most important duty was, the prosecutors informed them, to believe the children and show that they honored their testimony. The same young witness also testified that Gerald was accompanied by a green, silver and yellow robot, R2-D2, from "Star Wars."

What did it matter, either, that special judicial hearings about the Amiraults' prosecution had concluded that it was a travesty, that a tough panel of former prosecutors, the Governor's Board of Pardons, had virtually declared Gerald Amirault innocent and voted for commutation of his sentence--or that he was finally granted parole nearly three years ago, after nearly 18 years' imprisonment? He was almost immediately classified by Massachusetts's Sex Offenders Registry Board as a Level 3 offender. The kind, that is, deemed the most dangerous and most likely to re-offend. This bizarre classification, the board made clear, had to do with the number of counts of sex abuse charged to him--and the fact, too, that he continued to deny guilt. He now has to wear a large tracking device around his ankle, and obey a curfew confining him to the house from 11:30 p.m. to 6 a.m. every day. He has, not surprisingly, been unable to find a job. He is sustained, as ever, by the unstinting devotion of his family, and he grieves now mainly for the loss of the chance he had dreamed of in prison--of earning a salary and finally lightening the burden his wife had carried, uncomplaining and alone, during his years in prison. (He has recently been advised of pending legislation that will require him to pay $10 a day for the global positioning tag on his leg, that tracks him.)

Brit said...

Skipper:

Good points, especially this one: if the anti-death penalty activists were serious, they would withhold compelling evidence of innocence until after an execution, rather than getting the person off death row while still possessing a pulse rate. Morally dodgy? Perhaps. Would it put paid to the death penalty in the US? I wouldn't bet against it.

I think one incontrovertible erroneous execution would almost certainly do it in the States.

But re: my 'necessity' argument, what about the problem of corruption?

Harry:

I didn't say that capital punishment is stalinist. I said taking a stalinist view of justice is one of the possible ways of refuting my argument. (You said 'unpopular'). In other words, if you thought of the systems of trial and judgement as having as their primary purpose not to establish the truth and to give suspects the right to defend themselves, but to convict suspects 'pour encourager les autres', or to keep society 'in line', then you would have no problem ignoring with my argument. Mob justice is another way of refuting my argument.

I'm assuming that this isn't a line any of you would want to take, however.

And you're not allowed to object to headlines. They're only designed to get you to read the argument.

Hey Skipper said...

Brit:

But re: my 'necessity' argument, what about the problem of corruption?

There are several factors limiting that problem, presuming over determined evidence:

-- coherently faking such evidence runs, by definition, the very real risk of creating evidence refutable by reality; after all, that is the point of limiting capital punishment to those convictions based on a broad spectrum of interlocking evidence. Faking such evidence convincingly requires a nearly perfect ability at deception, which is a very difficult thing to pull off with any kind of consistency.

-- with the availability of life imprisonment, why hit on the long ball?*

-- if the corruption is competent, then the victim's innocence is forever unknown: perception is reality.


Your argument about executing an innocent person is seriously undermined, at least here in the US, by the impressive number of innocents freed before execution, combined with the absolute dearth of executed innocents.

Just last summer, a convicted murderer insisted he was innocent, but, to make the point, forewent any further appeals. DNA testing after his execution proved his guilt to a fare-thee-well.

Harry Eagar said...

Well, I've said all I need to say about the death penalty.

Skipper links to the Rabinowitz piece I mentioned in the WSJ.

One objection to complaints about wrongful convictions (in any case, not just capital) is that sometimes what you are objecting to is not a failure but a perversion of justice:

If a prosecutor (Nifong) concocts a false prosecution, that is itself a crime. The 'state' cannot defend itself, in advance, from having crimes committed against it.

The Amirault case is more ambiguous. Were the prosecutors committing a crime, or were they simply deranged by a mania that was shared among many tens of millions of Americans?

I don't know.

However, the Supreme Judicial Court cannot hide behind even that speculative ambiguity. Its decisions upholding the convictions -- despite the kind of factual evidence, eg, Rabinowitz brought to ligth -- was a crime.

One might suppose that people who are so worried about wrongful convictions of the innocent would have been more upset about that than they gave any evidence of being.

Brit said...

Skipper:

Your argument about executing an innocent person is seriously undermined, at least here in the US, by the impressive number of innocents freed before execution, combined with the absolute dearth of executed innocents.

It isn't undermined as far as I'm concerned, because I require 100% infallibility.

But even if I only required vanishingly rare fallibility, I would be dubious about your argument there on practical grounds.

Post-execution, there is a lot less incentive for, and a lot less time and money spent on, challenging prosecutions and reviewing evidence. Not least because the party himself is no longer around to protest his innocence and save his life - it will depend on family or friends suffciently motivated to clear a name for posterity.

But the whole business is dodgy as hell anyway. The innocents who've been freed before execution are the ones fortunate to have:

a) been innocent
b) had a suitably competent and determined team of people willing to fight the case even post-prosecution.

It is impossible to know the number of executed people who had (a) but not (b).

----

One area I haven't touched on here, because we've inevitably got talking about the States (you all being Americans, and it being the only 'civilised' country that still executes, that's not surprising); is the fact that eliminating state execution sends out a very strong message about what the state is for, and what it can do to you.

Under Saddam, as in most places without liberal democracies that value the individual, the state power of execution was clearly abused.

It would have been a remarkable statement if, post-Saddam, and either pre or post his hanging, the new Iraqi government had said "this can not happen again" and abolished the state power to execute.

Harry Eagar said...

Well, as I've noted before, at Orrin's place, Europeans have every reason to doubt the ability of a state run by Europeans to run a just legal system.

Americans, not so much.

Brit said...

OJ Simpson.

Harry Eagar said...

That's what I worry about. You start doubting jury verdicts in one kind of case and pretty soon every jury verdict looks doubtful.

Same with questioning punishments.

It seems (to you) indubitable that we should not hang. So you fall back on life imprisonment.

Surprise, surprise, murderers make obstreperous inmates. So Supermax.

But others fall back faster and farther than you and question the humaneness of Supermax. (I've seen threads on this in the last two months at Volokh and Althouse, hardly where you go looking for far leftists).

Pretty soon you are where England is, incapable of even incarcerating vicious killers because they are, after all, merely confused and so the only thing to do is to treat them. See what happened in the Barbara Baekeland murder in London. ("Savage Grace")

That killer was let loose in New York to kill again. So much for letting them live.

Hey Skipper said...

Brit:

It isn't undermined as far as I'm concerned, because I require 100% infallibility.

Fine, you can have it.

There is a subset, rather substantial, I suspect, of pre-meditated murder convictions for which the question of guilt is absolutely, completely, settled.

That is the subset of which I have spoken above: the overdetermined, interlocking, evidence absolutely removes the possibility of a wrongful conviction.

There is absolutely no doubt that whatsisname Malvo assassinated people in the Washington DC area.

There is absolutely no doubt who the BTK killer is.

It is surely within the capacity of our justice system, given restrictive rules of evidence, to separate the absolutes from everything else.

And where we can, I personally have no problems with executing the lot of them.

I rather doubt, though, that enough Americans can both stomach that many executions, and withstand the bleatings of Amnesty International, for it to actually happen.

Given, of course, the restrictive rules of evidence (and, while I'm making suggestions, assigning unimpeachable defense counsel to those cases with a potential capital outcome).

Until those things happen, I'm with you.

If they do come to fruition, then I could think of no better way to greatly reduce the population in our Supermax prisons.

Brit said...

Harry:

I think we've been through all that.

I acknowledge that the jury system is the least worst we can do, and we have to have some kind of system, but to think it infallible or that decsions are not open to doubt is just crazy. That's why we have courts of appeal and retrials.

And improving the life imprisonment process is a separate debate - it does not follow that any failings, be it a question of the humaneness of Supermax or the opposite business of prematurely releasing psychopaths, are therefore arguments for death as the only alternative.

You're trying to crowbar in a highly dubious slippery slope argument there. I could easily counter with my own slippery slope argument about execution.

At root, I suspect it's the old bipolar confrontation thing in the States. What you would really hate about abolition would be the gloating of the likes of Susan Sarandon. The arguments are secondary.

This isn't the same problem in the UK - this argument doesn't split so obviously into left and right. Here it is perfectly normal to be a conservative and anti.

Brit said...

Skipper:

When we convict we're always sure. That is, sure enough of guilt that the current court believes it to be 'beyond reasonable doubt'.

There's no line that says: "this one is 100% sure and this one is 99.9999% sure and this one is only 99% sure."

Who gets to decide that it is 'massively overdetermined' evidence rather than just evidence that shows it beyond reasonable doubt?

The judge? How do we ensure that the judge has made this decision competently? Another set of judges?

How about a public phone vote?

And how can you ensure that the massively overdetermined evidence was not wholly or partly faked by the police or some enemy of the accused? To be absolutely sure, you'd have to have an investigation of the entire procedure every time there was a capital sentence. But then you'd have to also investigate that investigation, if you wanted to be even surer.

There's no such thing as infallibilty when humans are involved.

It's much more honest, not to mention easier, to abolish.

Harry Eagar said...

I think I saw Susan Sarandon in a movie once, about 30 years ago.

Her gloating would not bother me, since I'm sure I would never find out about it.

And it isn't my slippery slope argument. The campaign against Supermax, long imprisonments etc. is already under way.

Brit said...

She embodies the anti-hanging crowd that you profess to despise.

I'm getting mixed messages about Supermax here. On the one hand, apparently they are a fate worse than death, so by arguing against the chair/lethal injection/blasting into space, we are inhumanely closing off the only route out.

But on the other hand, death is the ultimate punishment for the worst criminals.

Harry Eagar said...

I don't have anything against Supermax aside from its expense, although its derivation from Maoist practice does not give it any extra eclat.

But I don't have anything against hanging the guilty either.

But you cannot very well argue that life imprisonment is satisfactory and also that Supermax (or even plain penitentiaries) are a horrible abuse.

Not all who argue the first also argue the second, but many do; and there's not much that adherents of the first can draw on to draw the line this side of the second.

It's a real slippery slope.

Brit said...

Not nearly so slippery as the slope of executing because of failures in your prison service.

That's the Cresta Run of slippery slopes.

Harry Eagar said...

We're hanging, or should be, to get rid of the Orlando Ganals. This works.

You have not persuaded me that life imprisonment works as well. You have asserted that it does, but not only do I not agree with you, the bleeding hearts who want to close the Supermaxs don't agree, either, for different reasons.

Orlando Ganal believed, apparently incorrectly, that his wife was fooling around. He killed her, her parents, his two children; he burned his sister-in-law nearly to death, and although she survived, she will live in constant pain until she dies; and he firebombed the business where he worked, putting around 50 people out of work. He was intercepted by police on his way to kill more people. There is no doubt whatever that he did it, so the only possible objection to hanging him would be that it wasn't that bad.

I understand this does not answer your general argument, because not all convictees are so unimpeachably guilty, but it does answer my specific concern.

Brit said...

Go back to what I actually said, not to the simplistic thing you want me to be saying.

I said life imprisonment is a viable alternative.

It has the disadvantage of being less effective than hanging in removing potential multiple murderers from the planet. But it has the advantage of not imposing irrevocable penalties on the innocent.

I'm willing to accept that trade-off. You can tinker with and improve the parole and prison systems without resorting to hanging.