To my mind, anyway.
First, I’m no expert on the Troy Davis case, even though I read the newspapers and stayed in a Holiday Inn Express once. Per usual, the barrels of cyberink spent re-litigating the case show our problem to be epistemological; very few have more than the advocate’s version [for or against “reasonable doubt” in this case], although this lessens their passion and conviction not a whit. Pass.
As Jonathan Rowe noted in the comments on the mainpage, the strongest argument for capital punishment is that killers often kill again: after release from prison, perhaps even more often while in prison. Speaking for the greatest good for the greatest number, far more innocents would be saved by the timely execution of murderers than would innocents be executed in error. It’s not even close or arguable from the data.
Still, utilitarianism doesn’t sit well with our sense of justice. It can be equally easy to demonstrate that the whole circus just isn’t worth it as practiced today—the endless appeals, the minimization of any deterrent value by the sparing application of the death sentence. California spends $308 million on each execution and it’s difficult to imagine that nets a worthwhile return. And of course the race dimension makes any empirical discussion impossible. The race card is always top trump.
My reservation, my lean against capital punishment, is a “soft” argument, aesthetic, if you will, and although it could probably be fortified by data, I wouldn’t claim that would be sufficient. Still:
A letter sent to Georgia governor Nathan Deal, that the Georgia Board of Pardons and Paroles reconsider their denial of clemency for Troy Davis–
We write to you as former wardens and corrections officials who have had direct involvement in executions. Like few others in this country, we understand that you have a job to do in carrying out the lawful orders of the judiciary. We also understand, from our own personal experiences, the awful lifelong repercussions that come from participating in the execution of prisoners. While most of the prisoners whose executions we participated in accepted responsibility for the crimes for which they were punished, some of us have also executed prisoners who maintained their innocence until the end. It is those cases that are most haunting to an executioner.
We write to you today with the overwhelming concern that an innocent person could be executed in Georgia tonight. We know the legal process has exhausted itself in the case of Troy Anthony Davis, and yet, doubt about his guilt remains. This very fact will have an irreversible and damaging impact on your staff. Many people of significant standing share these concerns, including, notably, William Sessions, Director of the FBI under President Ronald Reagan.
Living with the nightmares is something that we know from experience. No one has the right to ask a public servant to take on a lifelong sentence of nagging doubt, and for some of us, shame and guilt. Should our justice system be causing so much harm to so many people when there is an alternative?
We urge you to ask the Georgia Board of Pardons and Paroles to reconsider their decision. Should that fail, we urge you to unburden yourselves and your staff from the pain of participating in such a questionable execution to the extent possible by allowing any personnel so inclined to opt-out of activities related to the execution of Troy Anthony Davis. Further, we urge you to provide appropriate counseling to personnel who do choose to perform their job functions related to the execution. If we may be of assistance to you moving forward, please do not hesitate to call upon any of us.
Respectfully and collegially,
Allen Ault – Retired Warden, Georgia Diagnostic & Classifications Prison
Terry Collins – Retired Director, Ohio Department of Rehabilitation and Correction
Ron McAndrew – Retired Warden, Florida State Prison
Dennis O’Neill – Retired Warden, Florida State Prison
Reginald Wilkinson – Retired Director, Ohio Department of Rehabilitation and Correction
Jeanne Woodford – Retired Warden, San Quentin State Prison
In a very real way, we are all the executioners: the state performs the deed on our behalf. So too, we all share the same nightmare.
Keeping criminals in jail protects innocents just as well as killing murderers.
Unless they are sentenced to Arkham. Then it’s usually just a matter of time.
maybe Gotham would benefit from private prisons.
Lord knows, the union prison guards don’t do a particularly good job of keeping a lid on Blackgate.
Trying to lay the arguments out fairly, Mr. Gregniak. Murders in prison, cited infra. Neither do all murderers serve life without parole, and some do kill again after release, far more than innocents exectuted.
If you can pass a death sentence you can also pass life w/o parole.
Mr. G, murderers on LW/oP still kill guards & fellow prisoners. Far more than innocents executed, admittedly back-of-the-envelope math. Perhaps there’s data to the contrary, but I doubt it. If you have it, pls present it. Otherwise, let’s stipulate & move on.
Mr. G, murderers on LW/oP still kill guards & fellow prisoners.
As do prisoners who were not convicted of murder. Your argument is that anyone who has the potential for that sort of violence should be executed, just to be safe.
That would be an oversimplification of my argument.
By all means flesh it out.
TVD,
I tend to agree, and for purposes of the discussion will stipulate, that this is the best argument against the death penalty. Indeed, the taking of human life—even justifiably—takes a toll on a right-minded person. However, this truth resides in a layer of abstraction that includes other particulars of human political organization. Local police are called upon to use reasonable force, extending often to deadly force, in the discharge of their duties. In some instances, civilians must kill in their own self-defense or in the defense of others, and in so doing are justified by the law.
At a slightly higher level of abstraction, we can also say that jailers who lock up human beings continuously deprive these individuals of their liberty. Sheriffs who enforce on civil judgments must, in the course of their duties, deprive defendants of their property.
What is the common thread in all of these cases? A man who has defrauded another has no moral right to the property he holds as a result of his fraud. A sheriff thus does not deprive the fraudster of “property” in the full understanding of the word. A man who is convicted of crimes of violence has forfeited his moral right to liberty, and thus the jailer deprives him of nothing by locking him in a cage.
Similarly, in a case where a human being has intentionally and imminently threatened the life of another, he is deemed by moral reason to have forfeited his moral right to be free from mortal threat to his own life. A man who kills in self-defense not only has committed no moral wrong: he has saved one innocent life at the expense of none. His courage profits the world an invaluable gift.
What difference is there, then, in the taking of a life forfeited through aggression in the moment of that aggression, and the taking of a life forfeited through aggression at a later time upon conviction through a due process of law? In moral reason, there is none. The decision to kill another in self-defense is no different than the decision to kill an individual convicted of murder and sentenced through due process to death. In each case, that individual has forfeited his life.
Still, your point is well taken: aggression actually perceived by the senses in the moment of passion better satisfies the moral faculty than does a court judgment many months or years later. There is a difference, however, between a moral faculty that is unpersuaded and one that is inoperative. Beings who have moral reason must also have the moral courage to see it carried out. A man who refuses to execute because he is unconvinced the life is truly already forfeit is courageous for the same reason as he who carries out the order who is convinced of the moral forfeiture. A man who does not believe in moral forfeiture, however, lacks moral reason to begin with.
What difference is there, then, in the taking of a life forfeited through aggression in the moment of that aggression, and the taking of a life forfeited through aggression at a later time upon conviction through a due process of law? In moral reason, there is none. The decision to kill another in self-defense is no different than the decision to kill an individual convicted of murder and sentenced through due process to death. In each case, that individual has forfeited his life.
This argument would morally justify the vigilante execution by the person attacked of a person who attacked the first person with mortal intent, even when the attack was thwarted with sub-lethal means and the attacker is subdued. The court judgment doesn’t play any moral role in transaction; it is only a device for the public management by the state of the use of retributive violence in society.
Killing in defense against an imminent mortal threat is justified because it protects a known, specified life that is imminent mortal danger. There is no imminence to the theoretically heightened threat that a convicted murderer may pose to fellow inmates as compared with people convicted of other crimes.
I was just thinking through this recently, but I don’t think it follows. True, the assailant’s life is forfeit. He thus has no standing to object to how justice is worked as to him. But the community of innocents has standing, and it is appropriate that it recognize that it is not for any individual person to see such grave moral consequences through—i.e., personally killing his assailant after the fact. This thing is hard enough for the whole community to stomach.
The community, even while it authorizes capital punishment, is thus justified in prohibiting “vigilante justice” even where the vigilante is the one who was assailed. The only sensible exception to this rule is where the victim’s life is in imminent moral threat, because the grave consequences to the psyche of personally doing justice by killing his assailant are here, and only here, clearly less grave than not doing so (i.e., succumbing to death by his assailant).
“imminent mortal threat,” it should say in the last paragraph.
Certainly, the society is justified in placing that restriction. But if it elected not to, what I say would hold. It’s a question of what society does or does not do.
Is there an underlying moral reality of the situation, where society’s requirements are just structural overlay that can can be removed without changing the moral question you are addressing?
Or do rights, morality, and law turn out to be socially created after all, with the disposition of government policy on such matters being a major contributing (but not exclusively determining) factor?
…that’s why I was careful to say “morally justify,” not simply justify, which implies that all legitimate duties are met. The only way an act against someone who has no right to be free from such an act, thus creating no duty in me to refrain from the act… is morally unjustified because the community forbids my taking the action… is if the strictures of society create an actual moral duty in me by virtue of simply existing. I certainly stipulate that they may create social duty. It would be surprising to me if you said you thought they created a moral duty.
A man who kills in self-defense not only has committed no moral wrong: he has saved one innocent life at the expense of none.
What difference is there, then, in the taking of a life forfeited through aggression in the moment of that aggression, and the taking of a life forfeited through aggression at a later time upon conviction through a due process of law?
In the latter case, no innocent life was saved.
Mike,
I had not fleshed out that detail in my example, but you’re quite right: The innocent life murdered by the defendant bears testimony to the moral truth that he has forfeited his own life. In that sense, it might be argued it is even less morally or psychologically problematic to carry that truth into reality, provided intent, causation and so forth have been confirmed in a legal judgment, than in the case of self-defense.
Self-defense is a universal value. The number of people who say that they would die rather than defend themselves against deadly violence is minuscule, and the number who would stick to that principle when testwd even smaller.
That our present system of jurisprudence
A. Defines the correct crimes to be capital ones, and
B. Does a sufficiently good job of determining the guilty
C. Can determine when it has made mistakes before executing the innocent
is an extremely contingent proposition. Consider, just to begin with, that every state does A, B, and C differently. Saying that the legal system’s results are less problematical than the principle of self-defense is quite simply laughable.
A. Would be interesting to discuss which of the crimes other than murder on this list you’d contend are not worthy of the death penalty.
B & C. I think it does. I think most people agree. I gather you don’t, but I wonder whether you believe it is the “system” that fails or whether there exists fraud or breaches of ethics that make it unworkable in practice. In either case, I accounted for the possibility that a state executive officer who, based on his exercise of moral reason, is unsatisfied with the judgment and sentence and can express reason for not executing a death sentence, exhibits moral courage. But this is not the same as idly rejecting the principle of the death penalty by citing the impossibility of ensuring absolute certainty of guilt in every case.
Mr. Kowal,
I don’t think the rejection is necessarily idle. I don’t read Mr. Schilling as saying the only problem with option C is that it’s impossible to ensure “absolute certainty of guilt in every case.” Another problem is that it’s impossible or difficult to ensure even the same standard for ascertaining the certainty of guilt in every case and the same means for ascertaining the certainty of guilt. And for what it’s worth, I find unconvincing the claim that the pardon power sufficiently accounts for the instances of “fraud or breaches of ethics.”
(However, I admit, I come at this from a near-absolutist disapproval of the death penalty; so I confess that I have already a bias not to accept a pro-death penalty argument. I am simply stating my answer to what you wrote.)
As for your other points about how “we” or the state or society deprive people of liberty when they have done something to forfeit their liberty or property when they have done something to forfeit their property: they’re good points and I don’t know how to answer them (yet).
I do think, although this might not necessarily be what you were aiming at, that the focus on the death penalty and on commutations to life in prison tends to take away the focus from those who are imprisoned even though they are either innocent or even though there are serious questions about their guilt or whether they had a fair trial.
Wow, I was way too unclear. I think I know what I meant, but it’s hard to put into words. It goes something like this:
Many people who oppose the death penalty cite what they claim is the unfair way the penalty is applied and claim that this unfairness is systematic and almost inherent to having a death penalty in the first place, so that in certain egregious cases, as the Troy Davis case appears to be, there seems to be much less than “reasonable doubt,” let alone “absolute certainty.”
In other words, I think “absolute certainty” is a false claim to argue with–it might not be a strawman, but it’s close.
Mr. Corneille,
Conceded: It’s not necessarily idle. But the nature of the objection is that the standards of proof and legal reasoning currently required are insufficient. This was my way of prodding for Mr. Schilling’s view of what standard is required. If less than “absolute certainty” (which seems to me a likely position one might take who aims to categorically reject the death penalty), then what?
Mr. Kowal,
I’m not sure. Speaking for myself, even the “absolute certainty” standard is not my true rejection. I hold my views largely on the theoretical* ground that even when the guilt is certain, the penalty ought not be invoked.
My policy preference, based on my near absolutist opposition, would be to make the death penalty even more difficult than it is now to put into practice. But that’s not really an answer to your question.
One answer might be that if on review, a preponderance of the evidence suggests that the convicted person who has been sentenced to death is innocent, then that is a per se reason to judicially commute the sentence to life imprisonment. (There are a heackuva lot of problems with this: a person who is actually innocent suffers immeasurably from life imprisonment, and even from a short term of imprisonment, because his liberty has been wrongfully taken from him. Also, since when do appeals courts determine questions of fact?)
*Because I have never been a victim of a violent crime and have known “only” one acquaintance who has been murdered.
Come now. We have the cases of Cameron Williams and Troy Davis fresh at had. And you still say, “eh, close enough”?
“Capital drug trafficking”? Seriously? At any rate, they’re all different, so if there is a moral intuition that some crimes deserve death, it’s a cloudy one, Not to mention that fact that most of the civilized world, including the RCC, denies it entirely.
And what’s idle is claiming that the death penalty is a moral good in completely abstract terms, while ignoring the way it’s actually applied.
Jeff,
At what rate of false-positives do you consider the death penalty to be unacceptable?
I can appreciate the serious consideration for life that says when there is any doubt, even if no longer a “reasonable doubt,” the death penalty should be taken off the table. But as long as we are taking life seriously, we are forced to look at the life the criminal savagely took. The moral value in carrying out justice also must be considered in sentencing policy.
This is a long way of conceding there is an argument Troy Davis’s death sentence should have been stayed or commuted, but that this has little to do with the death penalty generally speaking, or in other particular cases like Lawrence Russell Brewer’s.
But as long as we are taking life seriously, we are forced to look at the life the criminal savagely took.
Or in the Willingham cases, didn’t take, because there’s no evidence that a crime was comitted.
“But as long as we are taking life seriously, we are forced to look at the life the criminal savagely took.”
To me, it matters not whether the condemned to one life or 100 — Timothy McVeigh and Scott Roeder (the man who shot Dr Tiller) are equally guilty in my view, as are the person who killed Natalee Halloway and a man who kills a drugged-out prostitute.
It’s not the quantity of lives (and certainly not the quality!) that matters. The saying “It is better for 100 guilty men to go free than to imprison one innocent one” means something to me, all the more so when we’re talking about something as irrevocable as the death penalty.
I’m one of those pitying liberals, so I would MUCH rather find and fight the causes of murder (poverty and mental illness being at the top) than cheer when Ol’ Sparky fries another man.
Thanks for the shout out!
My take on the Death Penalty is generally to ask the question of whether I trust the government to find the right guy rather than to find the right one or two guys in a blue or green car who may or may not match up with the DNA evidence that, for some reason, was never entered into the record.
The answer to that question is, of course, hell no.
However, I tend to have a philosophical framework question that asks whether I could do something and then, if I could, I understand where the government gets the authority to do something similar.
I can come up with situations where it would be okay for me to end someone’s life. Some of these situations aren’t even particularly far-fetched (for definitions of “far-fetched” that exclude “regularly appear in newspapers”). It then makes sense for me to say that, yeah, there are circumstances where The State (or we, as a society) could end someone’s life.
That, of course, brings me back to my first paragraph, though.
Speaking for myself, I modify that standard a little bit to ask whether I could “come up with situations where it would be okay for me to end someone’s life once that someone is not an imminent threat, or, alternatively, once that someone has been neutralized and is now under the control of someone or thing that will prevent him or her from doing harm.” I tend to say no: I have trouble finding any such situation where it would be “okay” (that is, justified) for me to take that person’s life. I can imagine a certain passion for vengeance, etc., that might in theory result in me doing it, but now, at least from the safety of my computer, I say I wouldn’t be right to do so.
Of course, the demon is in the details here: how threatening does a threat have to not be before it’s no longer a threat? how imminent is imminent enough? does having someone in custody really neutralize them (as Mr. Van Dyke’s reference to murders in prison)? what about the hypothetical revolutionary who is martyred up in a cell and poses a danger to society that, under the hypothetical situation, is more of a threat live than dead?
I don’t know, but I have trouble coming up with whether it would be okay for me to kill someone.
At the same time, I share your distrust of the state’s ability to get things right. But that’s a partial nuther thing.
Yikes…I meant to write “” in there somewhere.
By ” “” ,” I meant “end bold type. ”
Sigh.
Understand. For a moment I was wondering, what does he hate so much about his first sentence that it’s the one thing he isn’t emphasizing?
When I hold the concept of “prison” up to scrutiny, I ask myself the “whether I could do something” question.
What does prison entail, in practice?
Would you, you personally, have the right to do that to another person?
Good question, and I don’t think so, absent some exigent circumstance: someone has tried to kill me, and I have him neutralized, but the police haven’t shown up yet; then maybe I have the right to imprison that someone.
In a state of nature, where there are no police, would I have the right to imprison someone who was dedicated to my destruction and would I have the obligation to imprison him instead of killing him, once I have him neutralized? I don’t think so, but then the constant worry of feeding the person and worrying if he will escape would haunt me and I might be inclined to kill or to exile myself as far away as possible in the hopes he doesn’t find me.
In a gouvernment civille and constrained, with the resources to ensure, with a high degree of accuracy, that the person won’t escape and that his basic needs will be met, then I wouldn’t want to nor have the right to imprison the person on my own. Of course, there’s another question about the state of prisons and whether people can and do escape and whether first degree murderers get out in five years or not. It’s complicated.
I might argue that in the “state of nature,” other than self-defense (i.e., there must be an imminent mortal threat), it is wrong for one man to take the life of another, and that it takes a society, organized around moral principle and under the rule of law, though its justice system to mete out punishment—i.e., ascertain guilt and deprive the criminal’s property, liberty, and/or life as prescribed by law). It is only in such a way that man can carry moral reason into action while avoiding the sin of taking God’s place in standing in judgment of the world, i.e., other men.
Mr. Kowal,
I think I agree. I guess the question, in the state of nature, is how to define “imminent” mortal threat. In the hypothetical I posited (which is unlikely even in the hypothetical world of the state of nature), the other person I mention is always a mortal threat while he is alive and the imminence of the threat he poses varies and is hard to account for: if I let him free, he kills me; if I keep him prisoner, he might kill me; if I kill him when he doesn’t actually have a weapon to wield against me, I commit murder.
In the process, as you point out, I have become as a god unto myself, and committed the sin of pride.
I am using “imminent” in the legal sense, which roughly means the act is presently about to be committed—e.g., he’s running at you with the knife, he’s aiming the gun at you, etc. A voicemail saying “I’m coming to get you” does not suffice. The imminence requirement is strictly enforced since it stands in for the perpetrator’s actual commission of the ultimate act, an element otherwise essential to morally deem his crime committed and his life forfeited (and thus also essential to legally deem the victim’s retaliation an act of justified self-defense).
Mr. Corneille,
It is always a pleasure to find that, though we might come out at opposite ends on the question at issue, we tend to agree on many of the underlying points that probably matter even more.
JB, our system of government is not interested “rehabbing” dangerous murderers. Far from it. And I applaud such an approach. What do you want them to do, learn basket weaving? Or read Eldridge Cleaver? du Dubois, Jane Fonda, Billy Ayers
Why are you Liberals so compassionate about cold-blood killers? One dead murderer is one less murderer who will never murder again. I thought it was great the the crowd erupted.
What, are you going to shut down the entire airline industry because accidents happen? Risks happen. All the time. It’s sad, but true. They were beheading people in France just a few years ago. With enough radical Muslims populating the earth, get ready to accept this as a way of like. They’ve got the Statue of Liberty right in their cross hairs.
Are you among those still searching for the real killer(s) of Nicole Brown Simpson and Ron Goldman?
I would trust the State’s DNA much, much more than Barry Scheck’s specimens of OJ’s. And for that matter, the State’s evidence against McVeigh’s. I’m not aware of one single case in which DNA positively identified someone other than the accused. It’s usually dismissed because of degradation of evidence.
I’m not aware of one single case in which DNA positively identified someone other than the accused.
That’s clueless even for you.
http://en.wikipedia.org/wiki/Innocence_Project#Wrongful_convictions
Na Na, Na Na, Naaa Naaaa. And your old lady wears army boots too….
Nice try, Schilling. And you’re dead wrong, too. The innocence project has not released one person because of DNA identifying someone else who committed the crime. You got that? The DNA that exonerated one person did not, on the other hand, convict the someone else–the real murderer. It was the “garbage in, garbage out” defense. I can just about see the, “For Sale” sign going up in your front yard because a released, serial child killer was moving in next door to you. HA! Liberals sure can talk the talk, but man, they sure can’t walk the walk.
Ah, you were using words carefully. You can see why I didn’t expect that.
Yes, post-conviction DNA evidence hasn’t yet, as far as I know, been used to point to a specific culprit rather than to show that the person convicted wasn’t the culprit. Why does this matter, though? Innocent is innocent, even if the Roberts Court doesn’t much care about it.
Mr. Schilling, you owe him a retraction: you mocked him but now you concede he was correct. Let’s keep it clean here.
I consider saying in so many words: “Yes, you’re right” a sufficient retraction.
And since Mr. Heidegger mocked me back, I think the honors are even there.
OK, he offended too, but you did first. Pls both conduct yrselves as gentlemen in this little corner; further offending comments will be aborted regardless of who is ‘right.’
Welcome aboard Tiger. Tough crowd here!