Friday, September 24, 2010

A 21st Century Nightmare

I suppose the latest tawdry tale of a US execution will briefly raise the 'Capital Punishment Debate' again, though it’s a defunct one in this country. As I’ve become more right-wing over the years, as most sensible people do, I’ve only become more convinced of the wrongness of the use of execution as a punishment. That shouldn’t be surprising really since the strongest (and a wholly sufficient) argument against it is a conservative one: that the State, being composed of flawed humans and corruptible systems, sometimes gets the wrong man even when it has the best of intentions, and therefore ought not to be trusted to kill its own citizens because killing them is a uniquely irreversible punishment. There aren’t many good arguments in favour of capital punishment and the most commonly used one is the very worst: that it meets a need for societal revenge (my perception is that a great many intelligent rightwing Americans only end up using these bad arguments because the debate is part of that country's narrow but intense left-right polarisation in political discourse, and therefore arguing against execution puts you on the same ‘side’ as such buffoons as Sean Penn, which is less tolerable than acknowledging that Penn’s conclusions may be righter than his reasonings).

Ultimately the Worst Argument reduces - because it is based on our sense of outrage and the (correct but not pertinent) notion that some crimes really deserve death - to a defence of mob rule. In which case we may as well junk civilisation now since the great achievement of the rule of law is to acknowledge that the little voice in your head, of justified outrage and desire for immediate righting of wrongs, must be suppressed while some sort of least-worst objective rational process, flawed as it is, takes its course. All of which brings me on to the hellish ordeal of Eddie Thompson: a true 21st Century nightmare that demonstrates, for the zillionth time, why everyone is innocent until proven guilty and that mob rule is the opposite of justice.

58 comments:

malty said...

I arrive at the same conclusion via a different route, laws are made by politicians ultimately at our behest and I do not wish to be responsible for having someone killed in a cold clinical manner making me worse than them. Capital punishment demonstrably does not work, if some sort of revenge is the spur then consider Brady, in a living hell since the nineteen sixties.

As you rightly point out Brit, the forces of law and order are incapable of putting the right shoe on the right foot, never mind arresting and banging up the correct individual.

As for the poor school caretaker, not funny man, at all, there for the grace of God...

David said...

I'm sure I've said everything I have to say about capital punishment somewhere on the Internets (although I'm not sure why Malty thinks it doesn't work; it works perfectly).

But there is an argument for capital punishment that, from one point of view, is unanswerable: it has been strongly supported over a long period of time by an overwhelming majority of citizens. This is true, of course, in the states, but it is also true in the UK. That the debate is nonetheless defunct is hard to square with American conservatism, which believes that the state is legitimate only to the extent that it reflects the will of the governed.

Also, albeit only somewhat relatedly, I urge those of you in the UK to find a way to support Paul Chambers, and perhaps avert a miscarriage of justice that's happening in real time.

Brit said...

I don't believe that 'unanswerable' assertion, David. Yes I believe that the overwhelming majority of citizens, then and now and everywhere, think that some crimes deserve the death penalty, but that's not the same thing at all when it comes to devising policy.

Brit said...

Malty - indeed, not funny at all.

David said...

Brit:

But I said that it was unanswerable from a particular point of view; that sovereignty lies in the people. That is, of course, an American view. For you, sovereignty lies in either Parliament, or that nice old lady you put on your money.

But in responding, you've opened a whole 'nother can of worms: the difference between Tory and conservative. You Tories believe that moral decisions are best made by an elite class and that the people should defer to those judgments. We conservatives believe that moral decisions are best made by the people and that the elites should defer to their judgment.

Obviously, there are policies that can only be made by specialists. But I'm hard pressed to come up with any basis for deciding the experts are better suited to decide the competing claims on the morality of capital punishment. Besides that they agree with you, what basis is there for asserting that the elite are better able to make this sort of moral judgment?

Brit said...

Too simple, David. You're arguing from an imaginary opinion poll which contains the single question: "Do some crimes deserve to be punished by death?" But the world is never that easy. All opinion polls depend on how you phrase the question. For example, an opinion poll phrased thus: "Given that the State might convict the wrong man, should crimes be punished by death or is imprisonment a better option?" would produce somewhat different results; and "Given that the State has a record of executing innocent people (with specifics named), should it have the power to execute or merely imprison" would significantly different results.

You could make a reasonable case for why we have abolished cap punishment (and why you do it less and less) from either your Tory or conservative position: the elite has come to realise the problem; or the people have come to realise that there are better questions in the imaginary opinion poll.

Peter said...

There is nothing imaginary about what David says, and the question was simple and straightforward.

malty said...

I walk into the bedroom one night and find my wife, husband, lover, partner in bed with another, I am a volatile person, picking up a knife I kill both of them. Buy what stretch of the imagination does the fear of capital punishment stop me?

I am a paedophile, I torture and kill children, it is in my mental makeup. What is it, about capital punishment, that stops me from doing this.

You have instructed your politicians to kill me as punishment, in a considered, calculating manner, are you not at least as bad, or even worse than I?

I repeat, it does not work.

Brit said...

Um, that's an actual opinion poll Peter. We were more sort of talking about the philosophy of law.

But that actual opinion poll is interesting, as I'd have expected it to be much higher that in the sixty percents to that straightforward question. I would therefore guess that the same poll with one of my two questions as phrased above might have yielded a majority against cap punishment in UK and Canada, or at least a lot more Not Sures so there was not a clear majority pro.

Jon Hotten said...

That's a very nice observation of an[i'd guess] truism - as i've got older i've definitely got more conservative, and more implacably opposed to CP. On a legal point, I wonder how, in America, lawyers have almost always failed in the legal argument that it is a cruel and unusual punishment. Given that 250m people live there, it's most certainly unusual, and it's always struck me that the worst part of the punishment is knowing, absolutely, the hour of your death, and waiting for it to arrive. That can surely be defined as cruel.

Gaw said...

David, I don't understand your particular distinction between Tory and conservative.

Is it really a conservative position to believe the state is legitimate only to the extent that it reflects the will of the governed? Sounds very radical or populist to me - as unBurkean a proposition as you could come up with. What are you conserving here?

And to rely on the perennial good nature and sense of the populace seems very idealistic, not a noted conservative trait.

Of course one of the goals of the American constitution - a conservative one - was to frustrate the popular will.

Your Tory description sounds better suited to Whigs (our version). Tories would believe that moral judgements are best made with reference not just to the people alive today (elite or otherwise) but to those in the past. Traditional and timeless moral teaching might lead us to disregard what the majority thought today as expressed in an opinion poll.

Brit said...

Jon - and your book (Locust) illustrated another problem of punishment: even if the right man is got, sometimes the story of mitigation can be told so many different ways that it can become virtually arbitrary.

---

Gaw and David: thanks for deepening the discussion; it's fun when conservatives try to work out ways to disagree about how they come to agree with each other.

The bit of David's comment I object to is You Tories believe that moral decisions are best made by an elite class and that the people should defer to those judgments...etc... I don't thank that any simple explanation suffices to explain the 'is' of how law comes about - it's a mix of trial and error, popular opinion, tradition etc - ie. the Muddle. As to the 'ought', I don't have any clear belief except that I resist attempts to overturn, systemise or even analyse the Muddle - which is the sense in which I find I am a 'conservative'. I don't put much stock in claims about the 'fundamental ways of looking at things' etc of political labels (Tory, Conservative etc) when it comes to practical application. That's really just a game for historians and pundits.

David said...

That's really just a game for historians and pundits.

Only because they hadn't invented bloggers yet.
___________________________

Before I respond to all of your excellent comments, I should note that I'm at best a lukewarm supporter of the death penalty, enthusiastic support of the death penalty being a little creepy. But it is, I think, clearly a legitimate function of government -- indeed, in the European enlightenment tradition, it is one of the foundational functions of government, as we trade our right to private vengeance in return for the state's promise to use its monopoly on violence to punish criminals and maintain the peace.

What I am enthusiastic about is democracy, broadly understood. That the people are sovereign and, mostly, deserve a government that follows rather than leads. On the other hand, I hate the idea of direct democracy for any entity much larger than a New England village. So, the fact that a particular poll or even series of polls shows that a particular policy is popular is at best weak evidence for me that government should act in that way. But, where a policy has been very popular for a long time (as has capital punishment) it takes a very good reason not to give the people what they want. When it comes to capital punishment, I don't see that the political class has any special knowledge that justifies ignoring the settled moral opinion of a large majority of citizens.

Finally, my support for capital punishment isn't solely this technical, juridical, "yes, but" support. There are crimes that go beyond private wrongs, crimes that are destructive of ordered liberty, that require us to not simply isolate the criminal from civilization, but to kill the criminal rather than tolerate his or her continued presence.

Specific responses to your comments will follow.

Sean said...

Ive gone the other way, against towards support.

Personally I would rather die an innocent man wrongly convicted by the state, than the victim of someones blood lust.

The state can, does and has always killed in various ways, from abortion (if like me you consider the unborn human) to armed sieges were the tendency is to shoot first to kill, on the precautionary principle, and of course war.

John S Mill gave a good liberal defence of CP, but for me Kant is the man, and his arguments are as solid as can be in a imperfect world full of imperfect humans running imperfect systems.

http://brindedcow.umd.edu/140/kantcap.html

Sean said...

..And just to add, the "state" is the administer of justice, justice belongs in this country to the Queen who gives to us out of the kindness of her being "the Queens peace"

In the US it generally is "The people versus..."

The state should always be the servant of the people. That to me is the "Conservative" principle.

David said...

Gaw:

The ur-statement of American conservatism:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.

David said...

Malty:

I think it's fair to say that the science shows a weak consensus for a weak deterrent effect. The best studies seem to show that each execution saves between 3 and 8 lives, but the incidences are low and the confounding effects many.

I don't rely on deterrence in arguing for capital punishment, but I don't see that you can use deterrence to argue against it, either.

The question isn't so much whether capital punishment works, as what "works" means. Executed murderers never kill again (which is not true of life in prison), and thus in narrow terms capital punishment works perfectly. More importantly for me, capital punishment is an effective statement of our understanding of the bounds of civilization, and the importance that it be maintained.

David said...

Brit:

The problem with your "don't analyse the Muddle" position is that, while conservative, it privileges the "is" over the "ought" or the "might be."

Thus, in your terms, we're both right. The British Muddle outlaws capital punishment and the American Muddle allows for it.

Brit said...

You Americans, always with the first principles! "The Muddle" is my description of how law has come to be. There's nothing inherent in making that description that prevents me or you from having an opinion about one particular law or moral claim, and basing it on whatever you like. My preference for not attempting to rationalise the Muddle is just that: a general preference in most cases, based on pragmatism. It doesn't amount to a philosophical or moral first principle from which all else flows.

Peter said...

I'm wet on this issue and would probably vote against if push came to shove, but Brit, among the many compelling reasons to oppose, I would put heroically standing up to "mob rule" very far down the list. In fact, some of the more persuasive objections stem from the bloodless clinical detachment of the process than from a distaste for visceral revenge. The American anti brigade has done such a great job of stringing out the process for so long that by the time the deed is done, it's easy to believe it's a different person than the perp was.

I don't know how you avoid David's arguments forever, but I hope it isn't by disenfranchising the pro-camp through epithets like "barbarian" and "mob". Perhaps I'm a little touchy this week because I've been arguing with a few leftists about right-wing populism and Tea Party types, who the leftists, being the snobbish reactionaries of the 21st century, feel perfectly entitled to disdain and insult on the basis that they are all banjo-pickin' xenophobes whose favourite sport is the monster truck rally. One of our new populists, a semi-comical, "tell-it-like-it-is" city counsellor, is polling almost fifty percent in the mayoralty race for Toronto, Canada's most liberal and multicultural city (50% non-white). It's as if Palin were sweeping Manhattan. Who knew there were so many migrants from Appalachia in Toronto?

Brit said...

By the way, although a small majority of Britons might instinctively say the death penalty is merited in theory, my take on abolition is that the idea of capital punishment doesn't survive contact with modern reality. The philosophical arguments in Parliament for and against were less important in the eventual abolition than the public just gradually losing the taste for killing actual convicts with backstories. The wrongful IRA convictions being a final nail in the coffin for any possible return. A referendum now would entail a debate in which those miscarriages would loom large and, IMO, decisively.

David said...

Brit: That's the number one lesson of social science: it's all complicated. Love is a muddle, work is a muddle, marriage is a muddle; growing up is a muddle; college is a muddle; putting up a swing set for your kids is a muddle. It seems like a leap to say that, because it's a muddle, we can't analyze it. If that were the case, we couldn't analyze anything.

malty said...

David, why do I hear Art and Paul's words ringing in my ears..'Still a man hears what he wants to hear and disregards the rest', by endorsing capital punishment you degrade civilisation, not maintain it, you kill by proxy.

A trick incidentally that Osama practices to perfection.

Gaw said...

Here are a couple of conservative principles (the first moral, the second pragmatic):

1. Thou shalt not kill (unless you're in intolerable danger - note that murderers can be rendered harmless without killing them).

2. It's potentially a danger to the citizenry for the state to have the power to kill its own citizens.

BTW isn't the Declaration a radical document? An invitation to permanent revolution, in a way? It's the Constitution that's conservative; it's the Declaration's necessarily restraining counterpart. I note that the institution of 'new government' was permitted to happen just the once.

Hey Skipper said...

I agree with everything David has already said, so I’ll try to avoid repeating any of it.

In principle, I am in favor of CP. I can see no reason why society should have to tolerate the continued existence of those who plan and carry out murder, regardless of CP’s deterrent effect.

I am also unswayed by cruelty arguments against CP, because they tend to gloss over the alternative: life without the possibility of parole has a horror all its own.

Where I go wet is that in following my own principle — CP for all beyond ironclad convictions of 1st degree murder — that would mean thousands of executions per year. On the one hand, such an execution rate would no doubt be deterrent.

However, modern sensibilities are such that even those in favor of CP would quail at the body count, no matter how justified it might be in principle.

Consequently, execution is capricious, which, IMHO is perhaps the most powerful argument against it.

That said, I have no problem with a society stating that there are some acts so heinous that those who commit them deserve to die, and that such a statement is well within the bounds of a well ordered and lawful government.

Sean said...

Sorry for the multiple comments, I do always try to stick to the one.

A case study in cruel and unusual punishment, would be the current standard of life for Ian Huntley, 3 suicide attempts, and a string of murder attempts on his life, resulting in permanent solitary confinement, his very unusual conditions.

What justice has been served in this case, 2 dead girls executed by Huntley, a devastated family living every new headline, and a killer who cannot find some sort of peace.

as for "thou shalt not kill" that really means "thou shall not murder"

Maybe we can settle this wiyth a CP declaration, at 18 before you can vote you sign or decline a declaration that if you are found guilty of murder the court has the right to recommend execution, I would sign and those who do not would have their wishes granted in such cases as their guilt. I suspect the great majority would sign too.

Teresa Lewis has now paid for her crimes and she is now innocent, instead of living a life without freedom full of guilt. The scales of justice are rebalanced in this case.

Brit said...

Skipper

I was going to say that my answer to your scenario of infallible conviction is the same as it was last time you brought it up. (That it is practically impossible because any system is corruptible as well as fallible; that my conservative argument is only the strongest one against cp, not the only one so I would still oppose even for cases that pass your (impossible) tests). But in fact another factor has increased my conviction since last time, because I've come to realise the difficulties of determining mitigation. Diminished responsibility depends to a much bigger degree than I previously realised on the judge and lawyers involved. Also, societal attitudes to responsibility have transformed over 20 years - so your claim is factually wrong: it has become much harder, not easier, to prove unmitigated cuplability. Every execution leaves such a bad taste these days (who, other than nutjobs, finds them satisfying anymore?) that it's so much easier, and cleaner, just to eliminate any possibility of wrongful execution.

I can see no reason why society should have to tolerate the continued existence of those who plan and carry out murder.

Is that really true, or just rhetoric? You can't see any merit at all in a single one of the philosophical argments against CP, which have held sway in all western countries and so many US states? I could understand you weighing it up and coming down, with some or other degree of reluctance, on the side of CP. But that's such a strong statement it rules out seriousness.

---

Going back for a moment to the 21st C Nightmare linked to in the post; it wouldn't take too much imagination to write a 'sci-fi' short story in which Brtian holds a referendum on executing paedophiles, with a maj in favour. It is enacted, Eddie Thompson is hanged, the truth of his case comes to light and the bill is immediately repealed, again on referendum. Plausible?

David said...

Gaw:

Good points, but for me not compelling.

1. In addition to Skipper's point that the commandment is really about murder, the Bible's position on capital punishment is pretty clear. I have a lot of respect for the Catholic Church's position that capital punishment is just but should not be used if there are alternatives, like life imprisonment. It doesn't quite get me there, though, because, as Skipper also says, it ignores the horror of lifelong incarceration, particularly among prisoners who are segregated from the general population; and I still believe that there are some crimes that are not fully punished by any sentence other than death.

2. It's potentially a danger to the citizenry for the state to have the power to kill its own citizens.

In theory, I agree. In practice, it's not the death penalty that I worry about.

It's worth stepping back here and reviewing how the death penalty is administered in the states (this also goes to why Brit's focus on mistakes doesn't change my mind).

The death penalty, as a punishment, is incredibly rare in the US. Even in Texas, which is the most active state, only a small percentage of murderers are executed. Texas is running about 1300-1400 murders per year, but less than fifty murderers a year are sentenced to die (in the last couple of years, much less). About 20% of those sentenced to die have their sentences changed to some other punishment or are released before execution. Executions in Texas are running about 20-25 a year. (Texas execution statistics from this site.)

Death penalty trials always involve a plea of innocent, and court appointed or volunteer lawyers. The accused as, in practice, access to the same resources as the state. The trial is bifurcated, so that guilt is determined by the jury first and then punishment is determined by the same jury in a second hearing. This allows the accused to introduce evidence of mitigation that he might not have wanted to introduce during the trial because it would make a guilty finding more likely. The burden of proof is at all times on the state.

The state must prove certain aggravating factors in order to get the death penalty. The death penalty is never automatic; despite the clear presence of any or all of these factors, the jury is free to vote against the death penalty and the accused is free to introduce mitigating factors. The aggravating factors vary somewhat by state (see this site), but we'll keep the focus on Texas.

(Continued after the break)

David said...
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David said...

2. It's potentially a danger to the citizenry for the state to have the power to kill its own citizens.

In theory, I agree. In practice, it's not the death penalty that I worry about.

It's worth stepping back here and reviewing how the death penalty is administered in the states (this also goes to why Brit's focus on mistakes doesn't change my mind).

The death penalty, as a punishment, is incredibly rare in the US. Even in Texas, which is the most active state, only a small percentage of murderers are executed. Texas is running about 1300-1400 murders per year, but less than fifty murderers a year are sentenced to die (in the last couple of years, much less). About 20% of those sentenced to die have their sentences changed to some other punishment or are released before execution. Executions in Texas are running about 20-25 a year. (Texas execution statistics from this site.)

Death penalty trials always involve a plea of innocent, and court appointed or volunteer lawyers. The accused as, in practice, access to the same resources as the state. The trial is bifurcated, so that guilt is determined by the jury first and then punishment is determined by the same jury in a second hearing. This allows the accused to introduce evidence of mitigation that he might not have wanted to introduce during the trial because it would make a guilty finding more likely. The burden of proof is at all times on the state.

The state must prove certain aggravating factors in order to get the death penalty. The death penalty is never automatic; despite the clear presence of any or all of these factors, the jury is free to vote against the death penalty and the accused is free to introduce mitigating factors. The aggravating factors vary somewhat by state (see this site), but generally it has to be a felony murder, a murder for hire, involve kids, multiple murders, or particularly gruesome.

After conviction and sentencing, a prisoner on death row gets an automatic appeal to the state Supreme Court (if convicted by a state) and then gets another complete set of federal appeals. In addition to the federal appeals, the prisoner at any time can petition the federal courts for a writ of habeus corpus, which means that the prisoner can basically always challenge both the process and substance of his conviction.

There are instances of people being found not guilty after conviction, but they are relatively rare. They are also evidence that the system works, not that it's broken. I'm not aware (perhaps because I don't follow death penalty law very closely) of any person convicted under the present system being exonerated after death. Thus, I don't think we can ask Brit's preferred poll question. Nonetheless, I assume that it has happened, human systems being imperfect.

So, when I worry about overweening governmental power, this isn't what I worry about. Due process and a jury of our peers don't ensure perfection, but they do make targeted governmental killing on trumped up charges very unlikely, and wholesale killing impossible.

(Continued after the break)

David said...
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David said...
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David said...

On the other hand, I'm not sure why your (Gaw and Brit's) positions don't result in blanket pacifism. War is much more of a danger of run-away government than the death penalty; almost everyone who dies is innocent; and non-combatants will be killed no matter how careful we are. How do you square war (and in particular non-existential war not in response to an invasion) with your position on the death penalty?

President Obama has authorized the CIA to kill a specific American citizen (Anwar al-Awlaki) without any judicial process, jury, appeal, etc. We don't hear much about it because the anti-war, fierce urgency of change, "look what they've done to my country" crowd was really just anti-Bush, but that strikes me as much more problematic than Texas justice.

David said...

Sorry about that. Blogger was acting up.

Brit said...

How do you square war (and in particular non-existential war not in response to an invasion) with your position on the death penalty?


Come on, David. For a pragmatic British conservative, any statement like that is a complete non-sequitor. In every case, the least worst option is the one to take.

Btw, as I've been saying here, it's not just mistakes and miscarriages: it's mitigation, deiminished responsibility and the fact that even black and white cases often turn out to be at least dark grey. Seems to me that all cap punishment does these days is add to the sum of human misery, make everyone involved look bad and each actual execution brings closer the likelihood of abolition.

Gaw said...

Brit writes that all cap punishment does these days is add to the sum of human misery, make everyone involved look bad...

There's a sort of indecency about capital punishment that you either feel or you don't (within a person as well as between people - I sometimes feel conflicted).

It's interesting that such a political writer as Orwell expressed his opposition to capital punishment in his story A Hanging without indulging in any particular moral argument (it was merely a 'mystery, unspeakably wrong'). Instead of explaining why, he shows how:

It is curious, but till that moment I had never realised what it means to destroy a healthy, conscious man. When I saw the prisoner step aside to avoid the puddle I saw the mystery, the unspeakable wrongness, of cutting a life short when it is in full tide. This man was not dying, he was alive just as we are alive. All the organs of his body were working - bowels digesting food, skin renewing itself, nails growing, tissues forming - all toiling away in solemn foolery. His nails would still be growing when he stood on the drop, when he was falling through the air with a tenth of a second to live. His eyes saw the yellow gravel and the grey walls, and his brain still remembered, foresaw, reasoned - even about puddles. He and we were a party of men walking together, seeing, hearing, feeling, understanding the same world; and in two minutes, with a sudden snap, one of us would be gone - one mind less, one world less.

I suspect quite a bit of major legal reform occurs less because people are swayed by rational argument and more because sensibilities change. God knows how the mechanics of this work but writers like Orwell must have a part to play.

David said...

Shorter Brit: A foolish consistency is the hobgoblin of small minds.

Gaw:

Your gut feeling that capital punishment is wrong is sufficient to support your personal opinion, but obviously has no effect on my opinion. You can vote your way and I'll vote my way; and then Brit will step in and say that "voters have no say on this issue, I can't explain why and it's silly of you to ask."

Brit said...

Nope. Shorter Brit: Giving the people what they want ain't as easy as you'd think.

Hey Skipper said...

That [infallible conviction] is practically impossible because any system is corruptible as well as fallible …

That position carries less weight than you think it does.

There are a range of possibilities with regard to every person and every criminal act.

Presuming it is infallibly true the act actually occurred, for each person (including you and me) it is either impossible to have committed the act, possible with varying degrees of likelihood, or impossible for the person to have not committed the act.

Within the context of a well ordered government — outside this constraint, the whole discussion is pointless — it is possible to specify rules of evidence for capital cases which, while excluding the vast majority of convictions from consideration, would absolutely guarantee only including those murders that could not possibly have been committed by other than the accused. This is an entirely different issue than the degree of culpability; who and why are separate issues (granted, my inventing words served to entirely obscure my point).

As David mentioned, the list of incorrectly convicted (i.e., wrong Who) executed murderers in the US in the last 50 years is nil; however, the number exonerated is far higher (roughly 120 over the same period).

Here is where irony rears its head. Those exonerations were due to the heightened scrutiny that comes along with CP. How many more wrongful life sentences without parole would you be willing to tolerate in the absence of CP? An unintended consequence is a consequence nonetheless.

Hey Skipper said...

Diminished responsibility depends to a much bigger degree than I previously realised on the judge and lawyers involved. Also, societal attitudes to responsibility have transformed over 20 years - so your claim is factually wrong: it has become much harder, not easier, to prove unmitigated culpability.

(Keeping in mind my self obscured point was in regard to Who, not Why …)

So, let me get this straight. On one hand we should ignore societal attitudes towards CP, yet on the other take them into account?

The problem with invoking diminished responsibility is that the concept applies to every murderer: if they didn’t suffer from some diminished ability to make normal moral decisions, the crime would not have happened in the first place.

So the real question is within what context the murder took place. Gaw’s unfortunately all too often not hypothetical hypothetical lacks a significant element that is present in all CP cases: formed intent to kill.

Obviously societal attitudes towards responsibility have transformed over the last twenty years; in and of itself, that says nothing. However, as a conservative, I question whether they have changed in the right direction.

Hey Skipper said...

Every execution leaves such a bad taste these days …

Obviously, as well it should. The original crime should leave a far worse taste, though.

I can see no reason why society should have to tolerate the continued existence of those who plan and carry out murder.

Is that really true, or just rhetoric?


True, but in a limited sense. I don’t think any of the philosophical arguments against (or in favor of, for that matter) CP are dispositive.

I understand and am sympathetic to them. However, since I don’t think they are conclusive, I don’t think they provide a decisive moral case against CP; therefore they do not provide sufficient basis to reach your conclusion: that society should have to tolerate the continued existence of those who commit pre-meditated murder.

I think they rely far too much on wrongful conviction and execution, which would be far more compelling if there were any actual instances to call upon.

Second, they neglect the unintended consequences of reduced scrutiny in the absence of CP.

Where they ultimately fail for me, though, is the complete disregard for the considered moral judgment of most people: there are some acts so heinous that the perpetrator deserves to die, absent any appeals to deterrence or revenge.

(BTW, I read this Wikipedia article on CP. I give it full marks

Going back for a moment to the 21st C Nightmare linked to in the post; it wouldn't take too much imagination to write a 'sci-fi' short story in which Britain holds a referendum on executing paedophiles … Plausible?

The inexorable trend in CP is towards proportionality.

If you can posit a set of circumstances where the the British executes a complete U-turn in that regard, then it is plausible.

I’m going with “not”.

Brit said...

Skipper - understand and am sympathetic to them.. Yet you haven't mentioned any of them, only the one I've used. They include: offering the chance of redemption, eye for an eye = bad, etc etc.

So, let me get this straight. On one hand we should ignore societal attitudes towards CP, yet on the other take them into account?

The point I'm making is that a question in a Mori opinion poll like Peter's above does not translate neatly into policy that reflects public opinion. It's about as useful as "Our poll reveals that 98% of people think the Government should do good things not bad things."

In Britain we've come up with this system whereby we hope to have policies that broadly reflect public opinion while taking into account such features as practicality, and after people who are supposed to represent the public have thought them through a bit and thrashed out the pros and cons. We call this "Parliamentary Democracy". (David thinks there's an Elite involved but he's obviously never heard of Dennis Skinner). It's not perfect but it turns out it's preferable to leaving everything up to a bloke who had a scimitar lobbed at him by some watery tart; or entirely by reference to the results of polls in The Sun.

That's the Is. It happens I also think it's the Ought, but that's another matter. Anyway, CP hasn't got through the system.

Brit said...

By the way: the list of incorrectly convicted (i.e., wrong Who) executed murderers in the US in the last 50 years is nil; however, the number exonerated is far higher (roughly 120 over the same period).

Your conclusions baffle me. Given the likelihood that there is much less motivation for continuing to scrutinise after the convicted is actually dead, that number 120 is frigging terrifying. My conclusion would be that we need to start scrutinising life imprisonments more carefully, rather than sentence everyone to death just to boost the chances of a proper trial.

Vern said...

"It's not perfect but it turns out it's preferable to leaving everything up to a bloke who had a scimitar lobbed at him by some watery tart; or entirely by reference to the results of polls in The Sun."


Bit of a straw man as it doesn't even remotely describe the system in those parts of the states where the death penalty still exists; parliamentary democracy or not, the US is a lot more democratic than the UK while hardly suffering under mob rule. The existence of the death penalty simply has nothing to do with mob rule. They have it in China, which is highly authoritarian. They have it in Texas, which is libertarian conservative. When a man is killed by the mob, that's a lynching. When he is killed by the state, that's an execution.

Also, the "mitigating circumstances" point could surely be applied to every single form of crime under the sun; hence what becomes of other forms of punishment? The same goes for Gaw's fears over the state's right to kill citizens posing a danger to citizens- the same could be said for the state's right to lock up citizens for years; to deprive them of their votes and the right to have sex with women; or to see their children.

A bit off topic here, but I was glad to see David's mention of the hit Obama out out on Anwar Al Awlaki, a case thoroughly ignored by almost all of those who professed to be outraged by Bush's crimes, thus giving the lie to their true motivations and principles.

Murkiness everywhere. The death penalty was abolished in the UK in the late 60s, in France in the early 80s. 40, 30 years without it and we think we're a new species. Was all justice before our own hallowed golden age nothing but savagery and mob rule? That's a bit like Peter Hitchens in reverse.

Vern said...

... that shgould have read 'Obama put out'

Vern said...

and that should have read 'should'

Brit said...

Bit of a straw man, your straw man, Vern. I fully agree that the US also employs parliamentary (or representative) democracy. It's a common arrangement. Looking through yr post, I wouldn't subscribe to any of the positions you ascribe to me.

I suppose my point in the main post would have been clearer if I'd said 'mob justice' rather than 'mob rule'.

The Yanks have inevitably hijiacked this thread but I was talking about the 'debate' in Britain. In the comments I've sugested that any attempt to make law based on a poll that says "I agree with CP" is not just constitutionally wrong, but also incoherent because that that is just an abstract opinion with surprisingly little practical value. Nobody has directly addressed this possibility yet, which is a pity as I think it might even be one aspect of this debate that hasn't been done to, um, death.

Hey Skipper said...

Your conclusions baffle me. Given the likelihood that there is much less motivation for continuing to scrutinise after the convicted is actually dead, that number 120 is frigging terrifying.

Since I got that number slightly wrong, let me clarify it. From the Wikipedia article I cited above:

Between 1976 and 2003, fewer than 2% of death row prisoners were exonerated (that is, cleared of all alleged crimes), while others had their sentences reduced for other reasons. This amounted to 112 prisoners released.

Because the number of exonerated is conflated with those whose sentences were reduced, it is impossible to say how many of each there are. I'll stick with 120 exonerated over 30 years. Nationwide, that amounts to 4 per year.

Which leaves your biggest argument against CP resting squarely upon the null set, while ignoring the consequences of eliminating CP. Surely all sentences need more careful scrutiny, but that isn't reality. Your alternative to that would be not executing the absolutely guilty, at the price of keeping some number of the falsely convicted in prison for life.

Hey Skipper said...

Skipper - understand and am sympathetic to them..

Yet you haven't mentioned any of them, only the one I've used. They include: offering the chance of redemption, eye for an eye = bad, etc etc.


Okay, I'll be specific.

The arguments for CP you mention are not in common currency here in the US. In fact, I have never heard either. The Wikipedia article that lists the pro and con positions also needs updating.

I have never heard anything like "societal revenge" mentioned, perhaps because it makes no sense: it applies to CP, but not life in prison without parole? There is some element of societal revenge in all penalties, yet you raise it only with respect to CP. Which, in turn, relieves you of presenting a morally persuasive argument that societal revenge is satisfied with permanent imprisonment, but beyond the pale with CP.

Then you make the leap from justified outrage and a correct, but mysteriously impertinent notion, that some crimes do in fact deserve death directly to mob rule. Aside from the non sequitur, if you could actually point to a capital conviction in the US that was the consequence of appeasing the mob, I'd love to hear about it. If such a thing happened, you would be exactly right and I would agree. However, that is another argument supported by a nullity.

The more common arguments against CP rely mostly on double dealing.

Those against CP have caused executions to become exceedingly rare, then they deride CP for lack of deterrent effect. Recently, in California a staggeringly drunk driver ran a red light, killing a major league baseball pitcher and two others. Potentially, he could get the death penalty. Does anyone seriously think that executing the driver would not deter drunk driving, while far lesser penalties are enthusiastically embraced because they do?

Also raised is the cost of executions. Yes, they are expensive. But never mentioned is the cost of prosecutions avoided solely because of the presence of CP. Here in Alaska last year, a guy who had killed two women pled guilty so as to obtain permanent imprisonment rather than CP. Aside from that double dealing, a further consequence goes unmentioned. Remove CP from the table, and now a perpetrator gets to plead guilty to exchange life in prison for some lesser penalty.

This is why I said there is no decisive moral argument against CP.

The one powerful argument against it is practical, and would be a slam dunk if there was even one case of an innocent person getting executed.

But there isn't.

Invoking horror stories for miscarriages of justice carrying much less severe penalties (Eddie Thompson), or the spectre of being executed for non-capital crimes (Gaws hypothetical) are wonderfully emotive, but irrelevant.

The Yanks have inevitably hijiacked this thread but I was talking about the 'debate' in Britain.

"Americans only end up using these bad arguments because the debate is part of that country's narrow but intense left-right polarisation in political discourse …"

Hey Skipper said...
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Hey Skipper said...
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Brit said...

Wayne Felker
Jesse Tafero
Cameron Willingham
Thomas Griffin
David Bentley
Timothy Evans

Look em up, Skipper.

For an example where a wrongful execution led directly to the abolition of the death penalty, Ronald Ryan.

There's your null set, dude.

Hey Skipper said...

look 'em up ...

I did. Thanks for the references.

I must admit to some surprise that the Wikipedia article I referred to completely missed some of them.

Of the ones you list, Cameron Willingham's most directly supports your position, and undercuts mine.

While I think it is easily possible to select a subset of perpetrators about whom there exists no doubt, no matter how unreasonable, that was clearly not the case here.

To the extent similar death row cases still exist, then as defensible as I find CP in principle, in practice it has clearly failed.

Brit said...

I must admit to some surprise that the Wikipedia article I referred to completely missed some of them.

Ah, the pitfalls of argument by Wiki. But hell, we're bloggers, not investigative journalists.

I'd be interested to know your thoughts in the light of these cases. ie. Given that Cameron Willingham is not imprisoned somewhere but dead (administered a lethal injection at the age of 36), does it change your views at all?

Does CP still have enough going for it that society should tolerate the risk of further Willinghams, when there is an alternative punishment of life imprisonment available.

I ask in a spirit of genuine enquiry. For myself, although I find many other anti-CP arguments also convincing, wrongful state killing has a unique quality which makes the miscarriage argument sufficient by itself.

Brit said...

I did of course mean Derek Bentley, btw. David Bentley is a rubbish English footballer.

Hey Skipper said...

Given that Cameron Willingham is not imprisoned somewhere but dead … does it change your views at all?

How could it not.

After all, my lack of objection to CP was based upon the premise that it is easy to do simple things without error; i.e., it is simple to select crimes impossible to have not occurred, impossible to have been committed by anyone but the perpetrator — the drunk driving crash and resulting deaths I mentioned above are a perfect example.

The Willingham case turns that premise on its head.

The others, not so much. A couple preceded the "modern era" in US CP, a couple others didn't have the stench attached to them that the Willingham case does. As for the Aussie case, SFAIK, in US law he would have been guilty of murder regardless of who pulled the trigger.

But it only takes one.

Does CP still have enough going for it despite the propensity for what is trivially easily avoided error (i.e., cases which rely upon eyewitness evidence and jailhouse snitches and have fewer than three separate types of physical evidence cannot be considered for CP would have struck each of your cites except the Aussie case)?

With regard to moral decisions, I am far more a consequentalist than essentialist.

Which leads to an awful irony. One of the consequences of CP in the US is the voiding (as opposed to sentence reduction) of something under 112 convictions; for the sake of argument, lets say 50.

While I can't prove this, I think it is at least arguable that the only reason those convictions were voided was due to the enhanced scrutiny of CP. So, the absence of CP means more people will be erroneously imprisoned for life.

Presuming this is true, how many voided convictions justify one erroneous execution? Making this paradox even more paradoxical is that both are sins of commission.

So if the awful irony is true, I think CP is justified. Otherwise, the presence of even one error, particularly since it was clear at the time, thereby gutting my own argument, causes me to conclude we would be better to see the back of it.

Not by much, but all the nuance in the world can't make some decisions other than yes or no.

I did of course mean Derek Bentley, btw. David Bentley is a rubbish English footballer.

You had me going there for a second. I thought you had provided me a smackdown argument for execution.

Brit said...

Although I'm far less attracted than you are to the 'extra scrutiny' idea, I can see your argument, Skipper.

But my conclusion is 'it only takes one'. I find it impossible to believe though, that there aren't others we don't know about that would at least be mitigated if the trial was run again - fewer in the US than in other countries yes, but zero seems unlikely. There is, in reality, no such thing as a 'legal process' in the metaphysical sense. There are lawyers and judges and witnesses and jurors - and where there are humans there is uncertainty. Any good system must be built to allow for this.

I think this is an almost unavoidable conclusion when it's argued through - or at any rate that's the best explanation I can think of for the discrepancy between the post-debate view of CP in all (but 3) industrialised representational democracies, and the popular, unexamined view in those countries (the opinion polls).

Hey Skipper said...

But my conclusion is 'it only takes one'.

I must have been unintentionally obscure.

You have convinced me your position is the most morally correct one -- that is, the damage done by a single erroneous execution outweighs any positive benefits to society CP might have. Confronting the reality of such a case focuses the mind.

I still have no idea how to judge the apparent tradeoff between one or a few innocent put to death, and a much larger number otherwise permanently imprisoned.