There is a lot of this about. See e.g. here.
I remember someone on some blog discussion expressing support for the death penalty, because only death-penalty cases can hope to get the intense scrutiny everything in our criminal-justice system merits.
This is a case in point. As Herbert describes it, it's not as though there was some massive piece of bad luck that led to them fingering the wrong guy. They railroaded him, well, like Doug Feith stovepiping intelligence. Exculpating witness ignored, incriminating witness with no character and in no position to know given incentives to testify to his guilt, officer who knows the incriminating witness is lying and doesn't say. It could happen to you, if you're black.
(Incidentally: Why does Herbert get so little respect in the 'sphere? I see him cited very little, but he's done a lot of good--the Tulia defendants might not be free if he hadn't pushed there cause. Possible answer hinted at in previous paragraph, though I don't want to get all in anyone's face about it.)
Why does Herbert get so little respect in the 'sphere? I've wondered that myself. Matt Yglesias says that nobody reads him, but MY never said why. Perhaps he'll chime in here.
Because Herbert's heart is in the right place, and god bless him for it, but his writing is sophomoric.
What ogged said, but that doesn't matter one whit when it comes to Tom Friedman.
No mere sophomore could write as poorly as Friedman. That's upper-division bad.
I'm not completely convinced that the possibility of wrongful execution should be so significant in debates about the death penalty
And I'm not sure the death penalty should be so significant in debates about what's wrong with the justice system, but it's dramatic, so that's how it goes. I just mean: It's pretty damn upsetting when some poor black dude gets 15 years for having crack on him, which happens everyday when things are "working" as they're supposed to.
I'm sure you'll convince me easily, but what about Herbert's writing is so bad? It's plain, it's not elegant, but it's not Friedman or Dowd, either-- they're terrible writers. I had thought of him as a sort of blue-collar prose stylist, something completely without shame. Is this wrong?
I don't think Hebert's sophomoric, so much as soporific. Which also explains why Friedman gets readership - he's like the NY Post, you read him to get deliciously angry.
I actually hadn't realized he wasn't highly thought of. Is it possible that he's in slightly the wrong niche? The Herbert pieces I remember are memorable more for the reporting, or at least the identification of an interesting story, than for the opinion aspect. Tulia was great work, but the great work was picking up and hammering the story -- there's not much of an opinion to have about it other than the obvious "This is an outrage!" Maybe he should be doing magazine pieces somewhere -- long-form mixed opinion and reporting.
It's the same reason white people didn't listen to Tavis Smiley on NPR or "News and Notes" now (which, incidentally, seems to have been entitled in order to hide its African-American/general minority focus): they figure he's the black columnist, so he's going to write about "black stuff," which isn't terribly relevant to people who aren't black. It's like a step back from racism -- because of course, the white columnists all write for everyone (except Maureen Dowd, who's just a bitchy little gossip!).
It's stupid. Hebert consistently writes about the most important issues that no one else is talking about. And I don't link to him either! Fuck me. Fuck us all.
Another thing I thought of is that I think Herbert writes a bit more about New York issues than the rest, which will be of less general interest to bloggers. But I don't think the bad writing charge sticks--I find his writing functional, perhaps earnest (God, I'm just trolling today), but it gets the job done. And shouldn't bloggers be able to react to his ideas anyway? Plus, Friedman.
On the important topic, 8 is right too. There's two issues here: Injustices where the law works the way it's supposed to, like sentencing disparties, and injustices where it doesn't, like wrongful convictions. Sometimes they go together, like the way that people who are wrongfully imprisoned from age 20 to 35 get screwed when they're released.
(But I do find wrongful execution a level more disturbing.)
Ok, maybe the charge that his writing, as such, is bad is wrong. But take a look at his previous column. I can agree with just about all of it, but it's not interesting in any way; there are no moments of "I hadn't thought of it that way." That's not to say that what he's doing isn't valuable: I imagine he's just not pitching to a blog-immersed audience.
I was also thinking of this irredeemable cheap shot from Tim Noah. Ogged, you're right that we all know that, but--I think we agree--that means it's not interesting to us. It really ought to have been running on the front page of every paper everywhere for the past four years or so.
I think LizardBreath is correct. The pieces of Herbert's that garner praise are those in which he functions as a crusading investigative reporter (Tulia and the present column are both great examples). But that sort of journalism doesn't require him to be analytically or rhetorically sharp; the outrage of the subject matter is enough to make a column worthwhile. In contrast, when the subject is the topic de jour of public debate, a successful column has to provide some analytical or rhetorical added value, and Herbert seems incapable of that.
It's been a long while since I've searched death penalty, cases, but it's not hard to find bad ones. I remember reading of one case, though not the specific case, in Texas where the defense attorney was recorded in the court record to have slept through much of the trial. The defendant, a black man, was executed. Anyway, there are plenty of these stories out there, but to get a sense of the unfairness of it all, one need only look at the money. How much do states spend on prosecution? How much on defense? Last I knew, about $300,000 for prosecution in death penalty cases, $0-$2000 for defense. That's not a fair trial.
I'm not completely convinced that the possibility of wrongful execution should be so significant in debates about the death penalty.
I'm curious: you don't think this is among the strongest arguments against the death penalty?
I don't speak for FL (in fact, I'm pretty sure this isn't what he was getting at), but it strikes me that a life sentence of tossing salad is not self-evidently better than death.
Matt: it would depend on the frequency, I think. In the abstract, I think there's some force to the "there are mistakes everywhere" line.* Suppose the DP did deter murders, or suppose that there were important retributivist reasons for it. And suppose that there were some--but very few-- wrongful executions. Then I might think that it's reasonable to have a policy of executing certain criminals.
*But the DP mistakes are especially bad and we can't compensate for them-- so not a lot of force.
My lazy viewpoint, as of now, is that it seems pretty likely that there's no deterrent effect, the DP is expensive and poorly administered, the effects of morally arbitrary features of the case (race of victim, county in which crime is committed) are too significant...and so I don't really have to pick and choose. I think in a world with a perfectly accurate and fair justice system, I wouldn't care much either way. Is that horrible?
We shouldn't fool outselves: false conviction is problem for all "irreversable" punishment. I would be shocked if some innocent 70 year old isn't serving out a life sentence for a crime committed 50 years ago. We can't give him his life back.
baa, I think there's an important difference. While no punishment can be taken away, we can compensate for error in the long-term imprisonment case. The check can never be big enough, but it's something, and the apology and attempt to right the wrong are morally significant.
And I would say that the "irreversability" point doesn't require a life sentence. A poor eighteen-year-old who spends five years in jail and gets out at 23? His life may not necessarily be irreversably screwed up, but the odds are that it's going to be. Someone who might have been a functional citizen is now much more likely to spend the rest of his life living at the edge of society.
It doesn't seem plausible to claim that the difference between a capital sentence and life in prison is merely one of degree and that both are "irreversable" in the same sense. In the case of a life sentence, we cannot give back to the wrongfully convicted all those lost years, but there are other forms of compensation that we can offer to try to make them whole, though we can all agree those remedies are imperfect. Someone exectued, on the other hand, can never be made whole, through any means.
In addition to what FL said -- which as a matter of practical politics I guess I endorse -- there are retributive theories of punishment.
The idea here is that punishment should be not only what deters, or incapacitates, but what the criminal deserves. As a theory of punishment, this seems correct to me. The criminal isn't a cog in our utility-maximizing equation -- he's a human being. Even we could deter lots of crimes by inflicting punishment that were more severe than the offense deserves, we still shouldn't do it.
A retributive theory certainly needn't jusify the death penalty (or any specific approach to punishment). The question that it raises is: "is there a crime that I, myself, could commit for which I would deserve death?"
There was a terrific story on This American Life about a wrongful death penalty conviction, later overturned, here, which derived from something called the McSweeney's Voice of Witness project, which will soon publish a book on how being exonerated after wrongful conviction is no big picnic.
Sorry, I missed everything between 22 and 26. Guys, I agree you can cut the 70 year old a million dollar check. It nonetheless really, really, really sucks for that to have been your life. It's not money and "freedom" that's going to help at that point, it's the public vindication of your innocence.
we can compensate for error in the long-term imprisonment case. The check can never be big enough, but it's something, and the apology and attempt to right the wrong are morally significant.
We can, but we don't. The other week on NPR there was a guy, about 70, just released from prison afte 40 years. His conviction on setting fire to a house which killed a woman was overturned. So, there he was, old, with no Social Security, money, friends, or family. And that was that.
Michael's right. These guys don't get a big check.
Does anything happen to prosecutors or police officers who are essentially in dereliction of their duties and act in bad faith? My guess is that nothing happens.
As far as I understand it (vague acquaintance with news reports, no special lawyerly knowledge), that's right.
Hmm.. Famously, there are some Irish "Terrorists" who experienced the quality of British justice at first hand. The other day, reading of events in Leeds, I found myself just wondering...
Just to chime in that bza's 17 is well-put. About punishment, it seems there are morally significant differences between mistaken life imprisonment and mistaken execution, but both those things are so bad that their differences aren't significant to the debate about imperfections in the justice system.
I thought 10% of the federal budget went to exonerated former inmates. That and foreign aid.
Actually, the foreign aid comparison is apposite. The US criminal justice system is like a war-torn failed state -- a complete moral nightmare that no one seems to know how to fix or engage with, and most people want to avoid thinking about. Is rape really a punishment we think appropriate for car theft? I don't think so.
Can I try to redirect the thread back to the retributive question? I would be interested in people's thoughts about whether, absent the imperfections of the system, death is ever appropriate? Do people think there is a crime they could commit that would deserve death?
What I tend to say about why mistaken application is such a strong anti death penalty argument is that allowing the death penalty to remain in use while people are aware of mistakes it makes communicates a fundamental unseriousness about justice to the public, and thereby inculcates norms which should not be inculcated.
baa, could you be more incisive? When you say, "a crime they could commit," do you mean, "a crime one could actually imagine oneself committing" or "any conceivable crime"?
baa, I, for one, am not going near that topic again.
Shamelessly, I'm not going to check this, but I'm pretty confident that there have been sizable awards resulting from civil suits arising out of some cases of wrongful conviction. (Ok, I checked a little bit.)
baa, I think one interesting question here is the weighting of retributivist reasons for punishment and the suoptimal outcomes resulting from the punishment. Also, I thought it was funny that you and DeLong had posts about utilitarianism at roughly the same time. (You know I know about the possibility of retributive theories, right? I want to save some professional dignity here...)
My point in 21 & 23 was meant to be like this: errors in the application of the DP differ from mistakes in incarceration in both seriousness and potential for rectification; hence, says me, they are more weighty but perhaps not insurmountable. (Also, if plausible empirical claims are true, incarceration but not execution is necessary to achieve valuable ends.)
For me, and for some others those two things are the same.
Isn't the point that, though the crime may deserve death, we should not allow ourselves to use that sanction?
You know, ogged, that whole clusterfuck wasn't even about desert.
Actually, the foreign aid comparison is apposite. The US criminal justice system is like a war-torn failed state -- a complete moral nightmare that no one seems to know how to fix or engage with, and most people want to avoid thinking about. Is rape really a punishment we think appropriate for car theft? I don't think so.
Dude, can you run for office so I can find out what voting for a Republican feels like?
I would be interested in people's thoughts about whether, absent the imperfections of the system, death is ever appropriate? Do people think there is a crime they could commit that would deserve death?
I'm not certain that it's impossible for a criminal to deserve death, but I am of the strong opinion that neither our criminal justice system nor a well-functioning criminal justice system could reliably separate those criminals who deserve death from those who don't. I wouldn't say that the death penalty is necessarily always immoral, but I do oppose its use in all cases.
On compensation:
Under existing U.S. law, a wrongfully imprisoned federal convict can receive a maximum of $5,000, total, in compensation after exoneration, no matter how many years they spent unjustly imprisoned. (28 U.S.C. § 2513).
Of course, the U.S. has a federalist system, so your state's laws may specify something different. Table in pdf here. See also here.
Re: strength of the anti-death penalty 'error' argument.. Let me point out the somewhat trivial point that it's coherent to think that certain actions warrant the death penalty, and that our current justice system is so flawed that we would woefully misapply the death penalty. As a result, an argument that the death penalty is wrong because it is badly applied seems to me to miss the mark; if the underlying principle is that the death penalty is fine, wouldn't our focus then be on improving the processes? To me it seems a stronger argument would go after why the death penalty is itself unjust.
To baa: For me it's not so much the retributive aspect of punishment, but the expressive function. Retribution won't bring back the person who is murdered, and it's an open question as to whether the families will gain closure (it seems to vary); but the expressive function is just the society saying "We don't tolerate this bullshit", and I think the death penalty fufills that function better, psychologically. Short answer, yes.
Of course I may just be a vindictive bitch.
But the first sentence of 46 is exactly what I think, except substituting "any possible" for "our current," and then adding what I already said about unseriousness about justice. And I think that is a strong argument against the death penalty.
baa, sorry to be dense, but what two things?
I'm not baa but I think it's conceivable crimes and crimes one might commit.
suoptimal, adj: satisfying the strongest preference of another.
Mi optimal no es su optimal.
Yeah, w-d, I agree if it's 'any possible'. But that doesn't seem to be the argument that's made, usually.... I seem to hear more often that "Well, the death penalty would be okay except for factors X Y Z..." The reason I don't think that it's a very strong argument against the death penalty.. is because it doesn't seem to be different from an argument against any long-term or serious punishment....
I find arguments that life in prison would be preferable to the death penalty because it's reversible, for example, to be wholly unconvincing. If it's not preferable though, maybe we can equate the two? So to say 'the death penalty is wrong and should be abolished because of the possibility of wrong convictions' is analogous to 'life imprisonment is wrong and should be abolished because of the possibility of wrong convictions'... and in both of those case I'm inclined to say that fixing the injustice rather than getting rid of the punishments is the most natural answer.
It's different, though, if you say 'any possible', granted.
Jeanne d'Arc had a post up a while ago where she said that she didn't care much about whether torture was ineffective as an interrogatory technique, because it was so bad for our souls to engage in the behavior. She didn't want to even address the utilitarian arguments.
That's about how I feel about the death penalty. It's wrong to kill the guilty too. So it shouldn't matter whether the innocent are being executed. (As a practical matter, I think it matters A LOT, because the argument from innocence seems to persuade a number of middle-of-the-roaders.)
I find that the death penalty for murder is particularly offensive, since we are punishing the murderer for taking a human life. (I mostly believe that criminal justice should be rehabilitative, but I'm willing to acknowledge a role for a punitive function.) If we value human life, then it's particularly damning to have the state (outside of a war situation) endorse the taking of a human being's life. And it's the worst kind of killing, because it's slow and deliberate. It seems to me to call into question the integrity of the law itself, because, I think, the state ought, most of the time, within a system of law to subject itself to the laws the citizens must follow.
I think the reason why wrongful conviction AND execution bothers me so much is the finality of it all. Sure, your name may be vindicated, your offspring (if you had any) might get some money, but what's that to you? You're dead.
Let's say you get a life sentence instead, and you get let out. Again, your name is cleared and you get a pittance. Life still sucks, but you're free. You haven't died pissed off that you got railroaded into the chair (you'll probably die pissed off anyhow though), but I suppose there is something to be said for being told "We're sorry. We fucked up really bad." And no, you can't get those years back, but at least you still have some years left, instead of being dead and all.
I think the reason why wrongful conviction AND execution bothers me so much is the finality of it all. Sure, your name may be vindicated, your offspring (if you had any) might get some money, but what's that to you? You're dead.
This is precisely the reason that an incorrect life sentence bothers me almost more—once you're dead, you're dead.
Death> Life in Prisononly comes out right if you are looking it with a very experiential Benthamite utilitarianism.
I would prefer to be wrongfully imprisoned for life than to be wrongfully executed.
Yes, but can your level of well-being change after your death? Aristotle: maybe sometimes. Discuss.
Well, I suppose you won't have any of those nasty STD's after you die, right?
LB: that is very nice of you to say. Chuck Colson, not really my ideal candidate, is quite active on these issues.
FL:
I meant what WD thought. Also, while I venerate Brad DeLong for his intellectual breadth and reading comprehension, he is just so weirdly wrong about utilitarianism (and in his responses to Will Wilkinson). I don't get it.
Ogged: I had missed that "ogged endorses bloodlust thread." And thus, had missed SCMT's A-team reference. This place is in-joke heaven.
Cala:
I worry a bit about the expressive function because again it feels like treating a person as a tool. If it's permissable on retributive grounds, though, then I think expressive function can be a 'plus' factor. Like for, say Ratko Mladic or something like that.
WD: Any possible? Can we get a Nuremberg exemption?
Can we get a Nuremberg exemption?
Answer: no!
How does it feel? Not so bad!
Is the mockery causing me to alter my posting style? I must admit, that at times it does make me consider so doing.
Yes, but can your level of well-being change after your death? Fineman: Definately. Discuss why Fineman is wrong because his philosophy necessitates crazy future-past causality.
As for baa's question, yes. I also do not think death such a terrible thing, nor put much stock into the sanctity of life. (I put a lot of stock into preventing harm, and it is typically hard to not harm someone when you kill them. But that refers to preventing harm in the first place, and does not necessarily apply to returning harm.) Chiefly, the stickler for me is the question of responsibility. Murderers are often not wholly responsible for their actions, and therefore revisiting their action upon them is wrong, not in a consequentialist sense, but because of intent. However, if a person commits a sufficiently horrible action, and is reasonably responsible for his or her action, then I see no serious problem with elimiating such a person from society. It seems that doing so is a net social good.
Michael, If it's murder, and not just homicide, then there's intent.
So sayeth the court. I need not agree with the court.
I read some book about a year ago, can't remember the title off hand, but it was written by a woman who examined death row inmates and gave testimony on their sanity. She was a psychologist and her partner was a neurologist. It was quite a harrowing read as she discussed some awful, awful stuff. And her impetus behind writing the book was that she had the hardest time convincing juries not to go for the death penalty, even when there was physical brain damage to parts of the brain which worked to inhibit our actions.
Also, what I meant about a difference in intent is this. I agree that there is some biological hardwiring that makes it difficult for us to kill our own species, but it is plain that social condition can fairly destroy that hardwiring. In the book alluded to above, the author, in the case of horrific killings, always found that the murderer had a traumatic past which in all liklihood destroyed that inhibition. For such a person, killing is not as much of a personal transgression as it would be for the average person, which I believe mitigates accountability. The state, however, knows full well what it is doing when it takes a life. So, even from a consequentialist point of view a life is a life, the state is actually making a bigger transgression against an injunction not to kill than the murderer, and so the notion of fair punishment wouldn't be upheld.
I think in a world with a perfectly accurate and fair justice system, I wouldn't care much either way. Is that horrible?
I don't think I'd feel any sense of injustice if we lived in a world where, when someone committed a crime sufficiently blameworthy, they were inerrantly and inevitably struck by a bolt of divine lightning.
Or trampled by a pony.
Michael,
I agree with you that the state knows full well what it's doing when it executes someone, and that that makes it a greater transgression.
Perhaps those people should have been convicted of manslaughter. I'm not sure that there would be legal justification for that view, but jury nullification could play a role.
That's a new one.
My Little Pony Stars n' Sunshine
My Little Pony Princess Dreams
My Little Pony Divine Fucking Vengeance.
In a very special crossover episode, they meet up with
Tenderheart Bear
Funshine Bear
Mercy is Overrated Bear
Children are innocent and love justice, while most adults are wicked and prefer mercy.
The most dangerous criminal now is the entirely lawless modern philosopher. Compared to him, burglars and bigamists are essentially moral men.
Austro exactly right in 42, and Mitch in 71. The business of handing out people's just deserts is for more omniscient and infallible creatures than we.
But you just said,
We'd never make any progress if no one made a fool of themselves.
The distinction between "make a fool of yourself" and "fry some other SOB till he smokes" is important here.
Are there other punishments besides the capital kind that we shouldn't permit ourselves to use, under the rubric of insufficient infallibility?
And I don't mean torture, or punishments that are clearly disproportionate to the crime. I'm interested in where we draw the line in the continuum of conceivably just punishments, and why. Why should punishment by death be in a class of its own, in this respect?
I don't think human fallibility stands up as an argument against retributivism as a theory of punishment (which may not be what you meant, Matt W). Our fallibility may exert downward pressure on what punishments we want to inflict, but that will be true if we are inflicting life imprisonment for reasons of retribution, expression, deterrence, or incapacitation.
My question sucks. Never mind.
I thought your question was good, SB, because if human fallibility is a reason to shun the death penalty, it seems that it's reasonable to wonder whether it should be extended to other things. (baa's right that fallibility is a problem regardless of your theory of punishment.)
Usually, with the death penalty, the finality of the punishment is the reason that fallibility is given extra weight (even though I'm not sure it should).
Children are innocent and love justice, while most adults are wicked and prefer mercy.
You an only child?
I wasn't, but Chesterton might have been.
It's not just human fallibility--or at least it's in part fallibility of our moral judgments rather than our judgments of who did what crime. I just don't think we should be in the business of making people's lives as awful as we think they deserve to be. Deterrence, incapacitation, and expression need to be done to the best of our ability, but retribution should be left to Heaven.
So this is an argument against baa's original pro-death argument--could I do something so awful that I would deserve to die? Yes, but that doesn't mean I should be put to death for it.
Yeah, yeah. Chesterton's just wrong about that one.
Children may do all sorts of nasty things, but does that mean they aren't innocent? My answer: no.
My answer: emphatically yes . Not that they're fully rational and punishable as adults at young ages, but they're pretty capable of being manipulative and hoping to get away with it at about, hmm, toddlerhood.
Chesteron is certainly correct that children are fonder of justice that adults. The puzzle is why they are like this given how enormously wicked they are.
Deterrence, incapacitation, and expression need to be done to the best of our ability, but retribution should be left to Heaven.
I know this is what Ian McKellen said about Gollum, but I am not sure I buy it. He also wanted to kill Patrick Stewart, remember...
Many that live deserve death. Some that die deserve life. Can you give it to them, Frodo? Do not be too eager to deal out death in judgment. Even the very wise cannot see all ends.
He's right about the justice part (it's in reference to fairy tales, right?) , but I think it's more that adulthood brings an understanding that urp, I'm not that innocent either .
Of course, that doesn't explain the popularity of 24, which really is a fairy tale for adults.
It seems like Michael's point about hardwiring, social conditioning and the almost universally depressing backgrounds of murderers on deathrow has been entirely dropped. He has given actual evidence, but maybe anecdote would help. I had a friend working on death row cases (for the defense, trying to get them life in prison rather than the death penalty) who also observed this. A typical example: mother was an abusive alcoholic drug addict. Died vomiting in front of him from an overdose when he was 7. Then shipped around the foster system, falling under other abusive families.
If their brains have been re-wired, how can we expect deterrence to work or retributive justice to actually be just.
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