by Edward _
Calling death an unconstitutionally cruel punishment for killers who were under 18 when they committed their crimes, the Supreme Court of the United States has ended the practice used in 19 states. The 5-4 decision prevents states from making 16- and 17-year-olds eligible for execution (and apparently throws out the death sentences of about 70 juvenile murderers). It was already illegal to execute criminals 15 and younger.
Opposed to the death penalty for all crimes except treason (and even there I believe the burden of proof should be higher than it is for other crimes), I find this encouraging:
Justice Anthony Kennedy, writing for the majority, noted that most states don’t allow the execution of juvenile killers and those that do use the penalty infrequently. The trend, he noted, was to abolish the practice.
"Our society views juveniles … as categorically less culpable than the average criminal," Kennedy wrote.
As you would expect, the charming trio of Rehnquist, Scalia, and Thomas voted to uphold the executions. O’Connor joined them.
In one respect, I feel that if you’re gonna execute adults, it’s odd to suggest that age alone determines when someone reaches enough culpability, but apparently that was the task before the court: to draw the line somewhere. Of course, my motive here is not to suggest 16-year-old murderers should be executed, but rather that 60-year-old murderers should not. Death is unconstitutionally cruel for all people, IMO. It denies individuals their most important "inalienable" right. Even in the name of justice and maintaining social order, we must, like SCOTUS, draw the line somewhere when it comes to denying the rights of the individual. Denying liberty and the pursuit of happiness seem reasonable for those who murder. Death, leaving no opportunity for social redemption or rehabilitation, is past that line for me.
Death is unconstitutionally cruel for all people, IMO.
How do you get around the Fifth Amendment language which states that “nor shall any person . . . be deprived of life, liberty, or property, without due process of law;” which obviously sanctions taking away someone’s life?
How do you get around the Fifth Amendment language which states that “nor shall any person . . . be deprived of life, liberty, or property, without due process of law;” which obviously sanctions taking away someone’s life?
By suggesting that “due process” in such cases requires playing God and that is beyond what we can be expected to be capable of doing wisely.
I’ve thought that the best constitutional argument against the death penalty as currently practiced is that just as more due process is needed to take away someone’s liberty in a criminal case than their money in a civil case, there is a still higher bar for taking away their life. For the death penalty to be constitutional we must take all reasonable measures to ensure that innocents are not executed. Right now, based on cases in Texas and Illinois and elsewhere, we are quite obviously failing to meet that burden.
My criminal law professor said this was an “original” argument by which he seemed to mean “not very good.” But I’m stubborn.
I have more trouble figuring out a good approach to interpreting the “cruel and unusual punishment” clause than maybe any other in the Constitution.
just as more due process is needed to take away someone’s liberty in a criminal case than their money in a civil case, there is a still higher bar for taking away their life.
My argument is essentially the same except that for me the bar is so high it’s impossible for mortals to meet.
More good news on the judicial front – Padilla isn’t an “enemy combatant” says Fed. Dis. Ct judge.
By suggesting that “due process” in such cases requires playing God and that is beyond what we can be expected to be capable of doing wisely.
I can understand that, but you’re saying its unconstitutionally cruel, which I take to mean unconstitutional under the 8th amendment, which is belied by the 5th’s inclusion of “life” as something the state can deprive one of.
The state can deprive you of other things as well, Ugh—your house, your children, etc.—but what determines whether doing so is “cruel” is whether it’s an appropriate punishment for your crime. It’s not appropriate to take your house for a traffic violation, or your children for cheating on your taxes. To do so in either case would be cruel and unusual.
So the question really boils down to whether death is ever appropriate. I believe that it’s not.
Except, again, for treason beyond and above any reasonable doubt.
I normally come down squarely against the death penalty, to some extent for the reasons Katherine detailed, but partly (and, even I admit, bizarrely) because it just costs a lot more money to kill a prisoner than it does to keep him in the clink for life.
Partial threadjack: is there anyone who’s not aware that prison labor is being used to support commerce? IMO prison labor ought to be used for something needed, like, for example, picking up litter, fixing up inner city areas, pitching in and doing building projects like Habitat For Humanity, etc. Having cheap prison labor compete with industry just seems wrong to me.
Katherine said: I have more trouble figuring out a good approach to interpreting the “cruel and unusual punishment” clause than maybe any other in the Constitution.
OT but only slightly — it seems that the suit filed today by Human Rights First and the ACLU against Rumsfeld on behalf of prisoners tortured in Afghanistan and Iraq relies partly on the unconstitutional nature of the U.S. actions. Any insights welcome, particularly from the legally trained…
Edward, I’ll disagree, but a bit sideways.
Death as a penalty should apply (perhaps even for treason) if two conditions exist:
1 – there is little to no chance of rehabilitation;
2 – the crime committed is such that we cannot tolerate it happening again.
Note the weasel phrase in the first condition. I note that I’m incapable of seeing both all futures and people’s souls, and so cannot state unequivocably that “this person” will NEVER be rehabilitated and so never commit the crime again. So to restate it – as far as humanly possible, we believe the person would (if released) be both willing and able to commit the crime again. I’m aware that loophole divers could stretch the meaning of “little” to amazing sizes, though, but hope by explaining it that my meaning is clearer.
The second condition is more important, however. Are we as a society willing to tolerate a thief stealing again? Probably. Are we as a society willing to tolerate a rapist repeating the crime on release? Unlikely. And I chose that for a specific reason – as counter to the inevitable “lock them up for life” position.
If the person is in prison for life and continues to rape, what is our response? Have we failed to stop the repeat of this crime – the crime we claimed so bad that we wish to prohibit normal contact with society for the rest of the offender’s life? On its face, if the rapist rapes another person while in prison then we have failed our obligation and intent. It becomes clear that only total isolation is sufficient to protect others while allowing the individual his life – provided, of course, that we have decided rape is of such severity to avoid its repeat.
Life in prison, unless it’s solitary confinement for the rest of the individual’s life, does not remove the individual from the opportunity to commit all crimes. It merely reduces the proportion of society available to be victims. And for this reason I select the two conditions above – if both are true, the death is a legitimate sentence to be considered.
So the question really boils down to whether death is ever appropriate. I believe that it’s not.
And I would agree, I’m just saying that its hard to make the case that death is unconstitutionally cruel in all circumstances, given the 5th amendment’s language.
If I may borrow a question from my fellow Tacitus poster spc67 and amend it slightly given your general anti-death penalty stance, Edward:
How do we punish someone who is already serving life without parole for murder for murdering a prison guard or a fellow inmate after being sentenced?
it seems that the suit filed today by Human Rights First and the ACLU against Rumsfeld on behalf of prisoners tortured in Afghanistan and Iraq relies partly on the unconstitutional nature of the U.S. actions
I could be wrong, but I think there is a lot of Supreme Court dicta (or maybe even holdings) that such and such a punishment (e.g. stuff tantamount to torture) would be unconstitutional (while deciding that the particular punishment before it is or isn’t).
The problem with the death penalty (M. Scott Eiland’s legitimate and problematic example aside) is that there is no recourse for someone wrongly executed. (Unless, of course, you want to make wrongful conviction leading to execution a capital crime itself.)
Kirk,
You’re touching on some important details here, but there’s a few points I fundamentally disagree on:
as far as humanly possible
This gets into the theological/philosophical realm, but that measure is not good enough for me when the question is ending someone’s life because they might commit the crime again. I truly believe only God (i.e., not men) is qualified to make that decision. We can decide to lock them up because “as far as humanly possible” we determine they’ll do it again, but ending their life goes too far.
Your second point borders on why I do support the death penalty for treason. There most definitely are crimes that are wholly unacceptable. Only the potential widesperad destruction that treason represents (threatening an entire society, essentially dismantling the agreement that enables us to live together at all) meets that for me though.
For the record, rape, while horrific, does not warrant death in my book. Your example is compelling, but there are other ways to deal with serial rapists. Mental institutions are perhaps the most humane and IMO appropriate among them. At least they stand the best chance of successful rehabilitation and re-introduction into society at large there. Apparently, it takes a concerted community effort to reform the worst of them, and, by definition, that takes a community that cares enough to try.
What else is lying beneath the surface in this debate on rehabilitation is where do you draw the line on human versus monster. Humans should be given every opportunity to redeem themselves. Monsters should be kept away from everyone else. How to tell the difference is the tricky part.
How do we punish someone who is already serving life without parole for murder for murdering a prison guard or a fellow inmate after being sentenced?
Solitary confinment, forced medication, therapy, etc I don’t know…some combination of humane coercion until such time the person is no longer such a high risk. Essentially, my argument is that there’s still a human in there somewhere and we don’t have the right to extinguish its chance to re-emerge. It’s too final a solution to the problem. And, as others have noted, until we have perfection in detection of the guilty, that’s a risk our collective souls can’t take, IMO.
How do we punish someone who is already serving life without parole for murder for murdering a prison guard or a fellow inmate after being sentenced?
I dunno. But, I think all life without parolees should be in solitary with as little chance to commit such a crime as possible.
I used to subscribe to my mother’s reasoning that the death penalty simply sends someone who can’t live among us to someone that can handle that person.
However, I have come to mind that the death penalty isn’t right. Leaving aside that the costs are higher and it doesn’t seem to act as much of a deterrent, I believe that while the body may be earthly and therefore could be argued to be ours to punish, the soul is rightfully God’s and we do not have the right to take away God’s chance to receive a redeemed soul. Capital punishment unnaturally stops the progress (or lack thereof) of the guilty’s soul towards redemption. We do not have the right to make a decision to stop that progress.
That Padilla judge is a Bush appointee, by the way. He didn’t pull any punches:
“In his opinion, Judge Floyd sharply criticized the administration’s use of the enemy combatant designation in Mr. Padilla’s case.
“The court finds that the president has no power, neither express nor implied, neither constitutional nor statutory, to hold petitioner as an enemy combatant,” Judge Floyd wrote.
The judge said he had no choice but to reject the president’s claim that he had the power to detain Mr. Padilla, who was arrested in May 2002 at O’Hare International Airport in Chicago and was later accused of having planned to detonate a radiation-spewing “dirty bomb” in the United States as part of a plot by Al Qaeda.
“To do otherwise would not only offend the rule of law and violate this country’s constitutional tradition,” Judge Floyd wrote, “but it would also be a betrayal of this nation’s commitment to the separation of powers that safeguards our democratic values and individual liberties.”
Judge Floyd, who was nominated to the court by President Bush in May 2003, said that to agree with the president would “be to engage in judicial activism,” a phrase often used by the White House to criticize rulings with which it disagrees.”
It’ll be appealed, of course. A couple of Bush’s potential Supreme Court nominees are on that Circuit, so depending on who’s on the panel it could be a very interesting case on several levels.
This is the most conservative circuit in the country, and the one that ruled against Hamdi. One of Bush’s likely nominee, Wilkinson, wrote the key majority opinion in that case. The other one, Luttig, dissented, but one of the grounds for his dissent was that the court was being insufficiently deferential to the President.
Still, I doubt that the Fourth Circuit will uphold Padilla’s detention. First of all, Hamdi’s a harder case than Padilla. Second, it’s pretty clear from justice-counting the Hamdi decision that if the circuit court sides with the administration they’ll be overturned by the Supreme Court at least 5-4, and quite possibly 8-1. But it’ll be very important to see whether they rule that the President has no authority to detain Padilla without charge, or only rule on narrower due process grounds. And if anyone starts going on about the “unitary executive,” that should be a giant red flag.
Of course, since they now have no choice about following Supreme Court precedent, their rulings in Padilla may tell us a lot less than their rulings in Hamdi about what they’d do on the Supreme Court.
(If you’re a legal dork, the other judge to watch for is Diana Gribbon Motz, who wrote an excellent dissent in Hamdi and has been mentioned as a potential Supreme Court nominee should the Democrats ever hold the White House again.)
Edward–it seems to me that it’s hard to argue that the death penalty is “cruel and unusual” for murder but not for treason.
I don’t know how well this works from the legal standpoint, but, to me, the unconstitutionally “cruel” part of the death penalty is the assumptin that it is worth the risk of killing innocent people in order to kill guilty ones. Even with the appeals and so on innocent people do get convicted–often. But suppose it only happened rarely? It wouldn’t matter is an innocent was executed one time or every year. Either way it is cruel to consider them sort of as acceptable loses in a war against crime.
Edward–it seems to me that it’s hard to argue that the death penalty is “cruel and unusual” for murder but not for treason.
Well, my argument is that treason threatens the entire system…society at large.
As social creatures, we trade with one another, decide on borders, enforce laws, etc. all to provide a framework in which we can live together. Otherwise, we’d be jackals, taking what we can get away with and no one would be safe.
In order to enjoy this environment (illusion?) of relatively safe stability, we fork over a bit of autonomy to the state, we agree to this social contract, for our own benefit. Anyone who threatens the state, therefore, essentially rejects the legitimacy of that entire contract and threatens us all.
By rejecting the legitimacy of the entire social contract, they place themselves outside society. Therefore, they are not entitled to the rights society provides. Other criminals who break this or that law are not the same. They’re still operating within the social contract. Their actions were not intended to dismantle the society at large.
I haven’t explained this very well, I fear, but it boils down to agreeing that you’re bound by the social contract at some level. We all push the boundaries of the contract…those who push too much, we call criminals and punish them. Those who reject the contract and thereby threaten all the rest of us forfeit their rights, IMO.
How this squares with my belief that they can or cannot be redeemed is something I’ll need to take up in the next decade of my life.
How do we punish someone who is already serving life without parole for murder for murdering a prison guard or a fellow inmate after being sentenced?
How do you punish someone serving consecutive sentences that amount to life imprisonment for multiple convictions of petty theft if she commits petty theft in prison? Take away the possibility of parole? What if she continues to commit petty theft in prison after that? Kill her?
Therefore, they are not entitled to the rights society provides.
Actually, that should be “Therefore, they are not entitled to the protection of rights that society provides.” I imagine if their rights are inalienable, society does not provide them. It does get messy in here.
By rejecting the legitimacy of the entire social contract, they place themselves outside society. Therefore, they are not entitled to the rights society provides.
Your clarification just now (“Therefore, they are not entitled to the protection of rights that society provides.”) clears that up a bit, but I still think it falls short. You are, essentially, using the same argument that the administration uses to deny due process rights to suspected terrorists in Gitmo et al.
I do not believe that this notion–that by implicitly removing themselves from the “social contract”, traitors have abdicated the rights recognized by that society–is consistent with the American principle that all men are created equal, and that their rights are theirs by virtue of being human, not from being American.
Add to that the fact that there is no appeal or remedy for someone wrongfully executed, and I reject the use of the death penalty by any state unequivocally.
MSE-
“How do we punish someone who is already serving life without parole for murder for murdering a prison guard or a fellow inmate after being sentenced?”
How do you punish someone who is already ON deathrow for killing a prison guard? Kill them harder? You have to draw the line somewhere.
For me, one of the best arguments against captial punishment is this –
The US government should not be in the business of killing its citizens.
Sorry, looking at it again, my hypothetical reads funny –
How do you punish somebody who kills a prison guard while already on deathrow? (snark deleted)
How do you punish someone serving consecutive sentences that amount to life imprisonment for multiple convictions of petty theft if she commits petty theft in prison? Take away the possibility of parole? What if she continues to commit petty theft in prison after that? Kill her?
Your example is rather unrealistic, and ignores the very basic difference between petty property crimes and homicide as far as the goals of sentencing goes. You might find this useful in helping you to grasp the issues involved.
How do you punish someone who is already ON deathrow for killing a prison guard? Kill them harder? You have to draw the line somewhere.
Actually, I’d keep all death row prisoners in permanent absolute solitary confinement–that would solve the problem rather neatly. If I believed that the state governments would actually do that–or that the ACLU wouldn’t go berserk and try to stop attempts to put such a regime into force–I’d be a lot less enthusiatic about capital punishment in general.
Does anyone else think that Kennedy’s opinion was pretty lame, jurisprudence-wise? For once, I think Scalia’s right to be indignant. (See his snark where the APA says 17-year-olds aren’t responsible enough to be executed for murder, but *are* responsible enough to get abortions w/out a note from Mom.) It’s difficult to see where this freewheelin’ jurisprudence stops.
(On the merits, I supposed that, if retarded people can’t be executed–good decision, I thought–then 17-year-olds shouldn’t either. Based on the 17-year-olds I see in Wal-Mart. But there’s got to be a better argument than Kennedy’s.)
Your example is rather unrealistic, and ignores the very basic difference between petty property crimes and homicide
Killing people is different. Obviously that is the whole point, i.e., the issue you need help grasping.
Killing people is different.
Yes, it is–which is why people who murder arguably merit a different kind of punishment than those who have not, and why your example was not a serious attempt to engage the question. Heet, on the other hand, did engage the question seriously and received a serious answer.
Totally backwards.
“Therefore, they are not entitled to the rights society provides.”
Society does not provide rights. Humanity provides rights. The idea that a person’s right to life, liberty, property, and the pursuit of happiness is one bestowed by the goodwill and whim of society or culture is a profoundly dangerous one and expressly contradicted by the framers of the Constitution. It leads to horrible utilitarian arguments, like ‘If society takes away one of the rights it offers (liberty), and reinforces another right it offers (safety), it could be a net good! Internment’s great!’. Safety is a benefit that society offers, but it has no right to take away liberty to gain it. It’s not society’s to take away. This is not to say that incarceration is forbidden. . obviously we stomach the forcible removal of rights when we can justify it, and you can even argue it includes the forcible removal of life (I disagree. But you can reasonably make the argument). But we must be careful of our terms. Liberty and life aren’t things society gives you. Which leads me to. .
Treason? really?
I would support the death penalty for premeditated murder well before a death penalty for treason. Treason is an attack on the State. I’m uncomfortable with protecting The State more than protecting the people in it.
On questions about the death penalty being necessary to punish people for whom existing incarceration allows more crime. . . sorry. That’s a utilitarian argument. “We have to do something worse. And the only thing I can think of is killing them.” It is not compelling to someone principally opposed to the state killing people. In my philosophy, killing is simply off the table. I appreciate that it would make some things easier, that some things might make more sense, that some things would be more satisfied. Whatever, it doesn’t matter. It’s just off the table because it is philosophically unacceptable. Solitary confinement for life would be a good starting alternative.
Yes, it is–which is why people who murder arguably merit a different kind of punishment than those who have not
In other words, you use the difference to support your position when it is convenient, and then discard it when you no longer find it to be so. I find that logic to be less than convincing.
your example was not a serious attempt to engage the question
You are incorrect. My example was intended to bring up the exact point it in fact brought up. Your cooperation is noted.
I agree on the lameness of Kennedy’s argument and was actually going to comment on it in the original post, but that led to a tangent I couldn’t work my way back from so I left it out.
Regarding when someone is old/mentally capable enough to know better (i.e., enough to be punished fully), I’d like to see a more sophisticated set of measures.
Yes, it is–which is why people who murder arguably merit a different kind of punishment than those who have not
every crime is different, but incarceration or death seem to be the main two punishments for the serious ones. If you’re gonna make a special punishment for murder, why not a special punishment for all the others?
Oh, I forgot to comment on the Kennedy decision. I always hate it when someone defends what I consider the right position with such horrible, weak argumentation. What would Europe think? Is he trying to drive conservatives nuts?
Well, we could go back to some of the punishments that have faded into the mists of antiquity. Half-hanging followed by disembowelling and castration seems like a decent place to start. I’m not sure how effective those things were as deterrents, though; possibly every criminal thinks he’ll be the one that doesn’t get caught.
every crime is different, but incarceration or death seem to be the main two punishments for the serious ones. If you’re gonna make a special punishment for murder, why not a special punishment for all the others?
Because murder is the most serious crime (absent possibly only your own suggestion of treason, which is considered a serious crime largely because it tends to endanger many, many lives). The principle of proportionality suggests that the most severe punishment should be reserved for the most serious crime, and when the most serious punishment available is lessened, it creates a situation where either punishments for all other crimes must be lessened, or it creates a “free shot” situation at the top (where, for example, a multiple rapist/kidnapper has a strong motivation to murder his victims after a certain point, so as to remove potential witnesses without risking an increase of his sentence if caught). Life without parole in absolute solitary confinement would be a plausible substitute for capital punishment for murder–if I believed in the will of society to impose it, and to stick to it in the face of arguments that the murderer is “too old to pose a threat.”
You are incorrect. My example was intended to bring up the exact point it in fact brought up. Your cooperation is noted.
Felix, let us know when you finish the argument with the imaginary person you think you’re winning against. In the meantime, the rest of us will be engaged in the actual discussion.
The question of whether death leads to deterrence is obviously controversial. My understanding of the current state is that most signs point to no. . that at the point people are committing murders, the nuances of the possible punishment really aren’t on their mind.
But again, I consider it a utilitarian argument, so kind of moot. The question isn’t whether killing criminals is a measurable net good for society. We don’t violate rights on the strength of net goods, or at least we shouldn’t. Similar to the torture argument. . even if you can argue 1 out of 10 torturees coughs something up and it’s financially worthwhile to settle with the innocent victims, can you argue for it? It’s just wrong. The question with the death penalty is whether we can justify the most fundamental rights violation possible with an imperfect justice system. I say no.
M. Scott,
your argument seems more focussed on retribution than redemption, so I can see where death doesn’t bother you. Crionna nailed it for me though: “while the body may be earthly and therefore could be argued to be ours to punish, the soul is rightfully God’s and we do not have the right to take away God’s chance to receive a redeemed soul.”
Capital punishment’s primary function is incapacitation–any deterrence effect is secondary. To justify abolishing it, the substitute sentence should have the same–or virtually the same–ability to prevent the murderer from committing future murders as does executing them.
Mark Kleiman makes steam come out my ears.
your argument seems more focussed on retribution than redemption
True, as far as it goes, given that I think that incapacitation is by far the most important function of capital punishment. For lesser crimes, rehabilitation is more important, and incapacitation tends to be more costly in the relative sense (which is why we don’t confiscate the cars of first-time speeders–doing so would really screw up society). Murder is at the top of the pyramid as far as crimes go, and as such the need to incapacitate proven murderers is the paramount priority. I see very little value in rehabilitating a proven murderer, and the value of society making sure that people who commit such crimes are dealt with harshly as an example to others and simply because they deserve to be so punished take easy priority over it, IMO.
any deterrence effect is secondary.
And yet that’s usually the first argument its advocates advance once you get them to admit its finality borders on being barbaric.
To justify abolishing it, the substitute sentence should have the same–or virtually the same–ability to prevent the murderer from committing future murders as does executing them.
I totally disagree. You expect perfection from your penal system yet you reject the need for perfection in your justice system. I’d rather work on it in the opposite direction.
I see very little value in rehabilitating a proven murderer
Assuming arguendo that 100% of what you’ve said is correct, it still does not address one of the most fundamental and irrefutable arguments against the death penalty: what if you’ve got the wrong guy?
Even a cursory look into the matter will turn up well over a hundred people who have been exonerated after being on death row, and countless who have been freed after serving life or lesser sentences when new evidence crops up or DNA technology improves.
Our justice system is necessarily imperfect, driven as it is by humans and human judgement. Even if I accept (and I do not) the necessity of the state killing those convicted of the most heinous crimes, I completely reject the notion that it is acceptable for an imperfect, uncertain system to levy a punishment for which there is no possible appeal or recovery.
What if you’ve got the wrong guy? It happens more often than you think.
“For lesser crimes, rehabilitation is more important”
Then lesser criminals should never be let anywhere near a federal prison. Seriously, rehabilitation has always been, I think, a silly conceit next to prison’s actual purposes – retribution, separation, and deterrence. If you define rehabilitation as the process of turning someone into a better person, I’m pretty sure dropping a drug dealer or a petty thief into a cage for 5 years with stone cold rapists and murderers is as far from rehabilitiation as you can possibly get.
If you want rehabilitation, send them to a monastery or a work camp, to someone actually interested in making them better people, and away from murderers.
You expect perfection from your penal system yet you reject the need for perfection in your justice system.
No–I simply see an innocent person murdered by a murderer who would not have been able to kill if he had been executed as equivalent to a person who is wrongfully convicted and executed for murder: in both cases, the system has failed. I’m very much for making sure that capital defendants get adequate counsel–even if it means that a state may choose not to seek capital punishment in as many cases due to economic issues, and for reforming and streamlining the appeals process so that all legitimate grounds for appeal are explored. However, you’re taking the absolutist position (with a narrow exception for treason) that capital punishment is *never* permissible, which means that your issue isn’t really with the system that inflicts the punishment, it’s with the punishment itself–to which my answer is: given a choice between the life of a guilty murderer and the lives of others that his continued existence poses a threat to, I’ve got no problem deciding in favor of the latter.
I see very little value in rehabilitating a proven murderer,
I see very little evidence all the people serving time and sitting on death row are actually murderers.
Then lesser criminals should never be let anywhere near a federal prison.
I agree, actually. I believe that prison should be reserved for violent crimes and crimes which often do lead to violence (such as burglary). Non-violent crimes should be dealt with using alternate methods such as community service, electronic restraints, and the like. Of course, bringing this idea up tends to provoke a knee-jerk reaction from certain parties that such a system would be unfair to the downtrodden in society and would be soft on white-collar criminals. So be it.
I simply see an innocent person murdered by a murderer who would not have been able to kill if he had been executed as equivalent to a person who is wrongfully convicted and executed for murder: in both cases, the system has failed.
A thousand times “No!” In one case, the deed was sanctioned by only one person. In the other, it was sanctioned by the entire state.
your issue isn’t really with the system that inflicts the punishment, it’s with the punishment itself
I don’t believe in punishments that leave no room for redemption, it’s true.
Roper
Waddling Thunder at Crescat Sententia is “appalled”
“But the majority’s impudent claim to balance our constitutional law on the soft tips of a self-determined national consensus is an embarassing indictment of American legal reasoning.”
I oppose the death penalty. But tho not quite appalled, I am also distinctly uncomfortable with this decision. Remember, liberals, this type of reasoning might be used against you.
I see very little evidence all the people serving time and sitting on death row are actually murderers.
Edward, you’ve been making the absolutist argument, but now you’re bringing up the process related one. If the system only sentenced guilty men and women to death, would you be for capital punishment for murderers? If the defendant is guilty, rehabilitation is irrelevant–they’re not guilty and don’t need rehabilitation. If they are guilty, their crime is too heinous to be forgiven or tolerated and quite frankly we shouldn’t *want* them back in society.
the deed was sanctioned by only one person. In the other, it was sanctioned by the entire state.
In both cases, the state failed to protect an innocent person under its protection–and in the first case, they had plenty of warning that the person in question was a danger to others and the power to eliminate the threat in advance. Are they precisely equivalent? No–but there are many more proven examples of the first type than the latter.
If the system only sentenced guilty men and women to death, would you be for capital punishment for murderers?
No. Whether “proven” murderers or not, I would not support capital punishment. Each soul deserves the time on earth to set things right with God that God himself grants it. Sorry, I know resorting to a theological argument isn’t fair here, but it’s so ingrained in me, I can’t see this issue any other way.
In both cases, the state failed to protect an innocent person under its protection
We’re gonna need a team of lawyers here soon, but taking that argument to its extreme conclusion, why not prosecute the state then?
My point is that the state provides the framework and laws within which people interact with each other, but it can’t (or in our view shouldn’t) control all those actions. Your argument hinges on the notion that it should.
Felix, let us know when you finish the argument with the imaginary person you think you’re winning against
Let me know when you make an argument that doesn’t lead to absurd consequences. Your implication that there are no other punishments for a prisoner serving a life sentence who commits murder other than to kill them, besides being a non-sequitur, leads to such absurdities. For what do we do knowing that the process of appealing a death sentence can take a decade? Kill murderers immediately upon conviction? If not, the problem you mentioned remains.
The rest of your comment isn’t worth addressing.
My point is that the state provides the framework and laws within which people interact with each other, but it can’t (or in our view shouldn’t) control all those actions. Your argument hinges on the notion that it should.
When it comes down to the actions of someone already convicted of murder? Yes, I *do* believe that the state is responsible for controlling that person’s actions to the maximum degree physically possible.
The “prosecution could be wrong” argument could ultimately be applied to any sentence. It’s easy to say that death is different, but what can you do for a man who, say, was sent to prison for thirty years as an eighteen year old for something he didn’t do? The mistake has ruined his life. Clearly, there has to be a balancing at some point between the need to prosecute crimes and the risk that the authorities will get it wrong.
No. Whether “proven” murderers or not, I would not support capital punishment.
Fair enough–that’s an honest position and I respect it. However, I’d ask you to acknowledge that a consequence of that position is that innocent people will certainly die–and indeed have died–who would not have if capital punishment were applied without any errors regarding guilt. I’d also like to point out that there are, as of now, no proven cases of an innocent person being executed in the modern era of capital punishment.
Yes, I *do* believe that the state is responsible for controlling that person’s actions to the maximum degree physically possible.
Literally speaking, that would include torturing them. It might need a bit of tweaking.
However, I’d ask you to acknowledge that a consequence of that position is that innocent people will certainly die–and indeed have died–who would not have if capital punishment were applied without any errors regarding guilt.
I can’t accept that. Innocent people might die, but there’s nothing that proves they certainly will in the future. And, again, for me, there’s a significant difference between what one person sanctions and what the entire state sanctions. If a murderer isn’t executed (and felixrayman illustrates another loophole in that argument…i.e., he’s just as likely to kill during the appeal process as he is in most other scenarios used to make this point), he has two choices. Only one of them is to kill again. What percentage of murderers kill again? Certainly not enough for you to assert I’m responsible for future deaths because I feel the others deserve to be taken when God decides it’s time.
You don’t have an error-free system in which to lay that blame at my feet anyway.
I’d also like to point out that there are, as of now, no proven cases of an innocent person being executed in the modern era of capital punishment.
There are plenty of cases of people on death row proven innocent after being sent there. Maybe after someone is murdered by the state (and let’s call it that if they were innocent) their families lose interest in trying to prove their innocence, I don’t know.
I think that it’s wrong for the state to kill. I can think of cases in which this wrong wouldn’t be at the top of my priority list to get upset about — Hitler, Osama bin Laden, Pol Pot — and maybe that means that in practice my exception is not treason but genocide, but since I can’t see, in practice, how capital punishment would be restricted to those cases, I’m against it across the board. (It’s odd how many people think that the moral objection can be dealt with by saying ‘an eye for an eye’, or ‘well, they killed first’: if we proposed rape as a punishment for rapists, and had employees of the state whose job it was to carry this out, it would clearly be wrong, and saying ‘an eye for an eye’ wouldn’t make it right. I see capital punishment in sort of the same way.)
Independently, I also think that in anything like our present judicial system, it’s a virtual certainty that significant numbers of innocent people will be be executed. If all people charged with capital offenses were ensured really good counsel, and defending a capital case were seen as an honor to be sought out and discharged to the best of one’s ability — if it were the legal equivalent of being chosen for an Olympic team — and if there were possible appeals for bad counsel and unavailable evidence, and if all citizens knew that allowing these appeals, however costly and cumbersome they might be, was the price we pay for wanting to execute people, then I might possibly withdraw this objection, and rely on my first. Things being as they are, however, this one seems to me decisive.
But I would have thought that even someone who disagreed with me on both counts should agree that we should not sentence juveniles to death. And I don’t think it’s helpful, here, to point to cases where someone was a day short of his 18th birthday when he committed a crime. We have to draw a line somewhere to separate children from adults. Any such line will be much clearer than the actual business of maturation. (Similarly, we let kids get a driver’s license on, say, their 16th birthday even though no one thinks that on that day some magical transformation changes them from kids who cannot be trusted with cars to kids who can. You just have to draw a line somewhere.) If some state wants to change where they draw this line, so be it. But wherever it is, it’s supposed to be the line that distinguishes a child from an adult. Children are not fully responsible for what they do. Adults are. We need to distinguish the two. And if children are not fully responsible for what they do, we should not consider killing them if they commit crimes, even if the crimes are heinous.
I think that even in an error-free DP system there might well be deaths due to damage to the social fabric caused by the DP – I think it would be better for society to countenance only killing in direct self-defense (including military actions, of course) and assisted suicide (of citizens found to be able to make that decision). This is a simple, simple-to-explain stance for the state to take.
There are plenty of cases of people on death row proven innocent after being sent there. Maybe after someone is murdered by the state (and let’s call it that if they were innocent) their families lose interest in trying to prove their innocence, I don’t know.
Indeed — while the families might not lose interest, groups like The Innocence Project have limited resources, and have no choice but to devote them to exonerating innocent men who are alive and in prison now, rather than to men for whom it is already too late. And you can bet your butt that the state and Federal justice systems absolutely have zero interest in continuing to pursue a case post-execution if there’s any chance whatsoever that the person may have been innocent. In fact, they generally do whatever they can to actively block such investigations.
Here’s an article about the situation in Japan. Some interesting facts about the death penalty here. It’s done by hanging, and the prisoner is never told until that day when the sentence will be carried out. This is to allow the prisoner a chance to come to accept their punishment. How this works in practice, I don’t think anyone (except perhaps the guards/adminstrators) really knows how that works out.
I think (and this is a bit bizarre, I know) that Japan has a stronger argument for using the death penalty than the US, because some murders do seem much more like a violation of trust that Japanese society has so much more than American society. The most recent horrific crime is when a 2 year old was killed when the assailant ran into a department store, grabbed a knife from the kitchenware section and attacked a mother and her two children. It’s really hard for me to imagine not giving the death penalty to someone who kills the most defenseless.
But the problem is twofold. One is that a suitable regime that doesn’t inflict overly cruel punishment can be used as a way to commit suicide. Police have a term for people who do that called “suicide by homicide” where the person creates a situation where the police will kill him. Obviously, this is more of a problem in the US, where police are more likely to use deadly force. This is not to suggest tha we make the death penaly more cruel, just to point out that it is not an isolated decision, but one woven in the fabric of the system.
The second problem is that the state has a great amount of difficult admitting error. In Japan, because police are given some leeway in holding and interrogating a prisoner, it is apparent that some confessions are coerced, and this can be linked to the Japanese state’s desire for a society in which implicit norms are taken to heart (of course, every state has this desire, but the lack of a true independent judiciary here makes it much more a reality). It is far too easy to slide from correct retribution to the notion that if he wasn’t guilty, I’m sure that there was something that he should have been punished for. There is a point where the good of the state is weighed as being more valuable than those that make up the state, which is problematic.
Two googled links, this paper which lays out an argument against the death penalty and this associated site of links that gives some interesting links to stats and cases.
Please allow me to explain this: this is the standard line that pro-death-penalty folks have been (unknowingly, to be sure) programmed with. Few have thought it through, and few who hear it, apparently, spot the logic flaw.
Which is that in this country, once you are executed, you have no legal standing, and no one has legal standing, to reconsider your case. So you can be the most innocent woman or man in the world, but once you’re executed, there is no mechanism in law to re-examine your case, and no mechanism to make such a finding.
Ergo, no such finding exists. It can’t. It is a legal impossibilty to “prove” in a court of law that a guilty person has been executed. Ever, unless the law is changed (or such a finding can somehow be made on some other issue of law in some tangential case; I keep that open as a hypothetical possibility).
Needless to say, therefore, the lack of such “proof” is indicative of precisely nothing.
It makes a great argument, though, if you’re not familiar with it.
“Police have a term for people who do that called ‘suicide by homicide’ where the person creates a situation where the police will kill him.”
“Suicide by cop” is the term I’m commonly familiar with.
Couldn’t the state theoretically be sued for wrongful death or something similar?
Anarch: no, I’m fairly sure the government is immune from suits concerning things it does qua government.
It makes a great argument, though, if you’re not familiar with it.
Gary, there’s nothing stopping someone from independently re-examining the facts and coming up with evidence adequate to meet the standard that would have sufficed to overturn the conviction if it had been presented before the execution. That would certainly satisfy me, and would satisfy most who would point out that there has been no proven instance of an innocent person being executed.
So–to reiterate–there is no proven case of an innocent person being executed in the post-Furman era, and word games by you don’t change that.
“Of course, bringing this idea up tends to provoke a knee-jerk reaction from certain parties that such a system would be unfair to the downtrodden in society and would be soft on white-collar criminals. So be it.”
I’m not entirely sure who those certain parties are, but based on history I have to guess this is a pro-forma denunciation of liberals. If so, are you serious? If you were to propose such a plan, your detractors would not be liberals, I guarantee it.
I’m not entirely sure who those certain parties are, but based on history I have to guess this is a pro-forma denunciation of liberals.
Not all liberals, but on the occasions when I’ve brought this up and it was condemned harshly, it was always a liberal doing so–for the reasons that I mentioned. I’ll be quite glad to admit that some liberals who heard the idea reacted quite positively to it.
I could be mistaken but as I understand it, the state has custody over the evidence, especially the physical evidence. They don’t let just anyone borrow it.
As for “the standard that would have sufficed to overturn the conviction if it had been presented before the execution”–it all depends on the state, doesn’t it? In Texas, the key witnesses can confess, the key confession can turn out to be illegally obtained and quite possibly false, there may be at least as much evidence that the prosecution’s witness committed the murder as the defendant–but you’d be lucky if that was mentioned in the clemency memo, let alone used as a basis for overturning the conviction. Some of these cases might be worth looking into. There are multiple cases where I would say it was more likely than not that an innocent person was executed.
“the key witnesses can confess”
sorry, that should be “recant”
“Couldn’t the state theoretically be sued for wrongful death or something similar?”
No.
“Gary, there’s nothing stopping someone from independently re-examining the facts and coming up with evidence adequate to meet the standard that would have sufficed to overturn the conviction if it had been presented before the execution.”
It’s quite literally impossible to “meet the standard that would have sufficed to overturn the conviction” without a judge being present to make rulings, a prosecutor to represent the state, a lawyer to represent the plaintiff, and the legal powers we grant these entities.
Our laws are made of absolutely nothing but “words” and to dismiss “words” as only “word games” is to dismiss our system of law. There is no equivalent to a finding of law but a finding of law.
Meanwhile, the Innocence Project has documented 156 people sentenced to death who have been exonerated. (The Death Penalty Project has 118.)
But since you say you’ll accept non-legal “proof” of innocent people being executed, here you go. Now you can say you don’t find it convincing. And there endth the discussion until we’re back in a court.
BTW, as to the 5th amendment, originalist argument: the 5th amendment does not state that the government CAN take life. It says that it cannot do so without due process of law.
Now, this does indicate that the drafters thought it was possible or probable that the death penalty would be legal under some circumstances, which presumably means that they thought it was not cruel or unusual. But as Justice Stephens and Justice Scalia both noted today, when the Constitution was ratified the execution of seven year old children was thought not to be cruel and unusual. Does that bind us too? I cannot see why it should.
Here are some other contemporary legal uses of the phrase cruel and unusual:
Should we be bound by the understanding of “cruel and unusual” held by the generation of men who wrote those laws?
The main argument for why we should is that the Constitution was ratified by a “supermajority” and can only be amended by a supermajority.
But in fact it was ratified by a tiny minority: blacks and women could not vote. If the argument is that they get to bind us to their narrow and frankly indecent understanding of cruelty, which permitted slavery, the execution of seven year olds, marital rape–then the Constitution is illegitimate, and I would trade our legal system for England’s in a heartbeat.
Gary, there’s nothing stopping someone from independently re-examining the facts and coming up with evidence adequate to meet the standard that would have sufficed to overturn the conviction if it had been presented before the execution.
Scott, how eager do you think the state generally is to turn over the evidence in a closed criminal case in which the defendant was convicted and executed to someone trying to demonstrate that the person was innocent? People have to seek court orders to get that evidence, and given the vested interest that the entire legal system has in not being shown to have executed innocents, they’ve rarely been inclined to give it. Once the person is executed and in the ground, as far as the state’s concerned, that’s that. Good luck trying to get them to release DNA or other physical evidence.
There are cases where people on death row have been released after a long, arduous campaign showed them to be innocent of the crime for which they were sentenced to death. This sort of work is generally done as a campaign by people not connected to the case in the first place; IIRC, one recent example was a group of students (law students?).
DP advocates point to these cases as evidence that the “system works,” which strikes me as barmy. When your fate relies on attracting the attention and passion of a outside group, who then must muster the stamina, expertise and resources to spend months and years on the project, and who then must find a judge willing to overturn the verdict and sentence… that isn’t the system ‘working.’ That’s like saying a Rube Goldberg device which depends on swinging boots, playful mice, and melting ice cubes is a fine way to toast bread.
“There is no equivalent to a finding of law but a finding of law.”
I’ll take a peer-reviewed article in a major science journal over a finding of law any day of the week.
“I’ll take a peer-reviewed article in a major science journal over a finding of law any day of the week.”
I’m unclear how that would settle a lawsuit, get someone out of jail, or award a monetary award from the state. But if you can accomplish any of these things, or get a legal determination for a wrongfully-executed person, this way, more power to you.
Since that’s the goal under discussion, non-legal forms of “proof” doesn’t seem to do much to achieve legal justice, or a finding of law.