Condescension, discussed by Kent in the prior entry, has a long and prominent place in the death penalty debate. The language of the debate is itself bloated with condescension.
What is the abolitionists' favorite phrase? "Evolving standards of decency." What this is used to suggest is that anyone whose thinking has "evolved," at least in the direction of "decency," opposes capital punishment. And that is almost certainly what Justice Brennan intended it to imply. Analysis, you see, is not required when your side's conclusion is built into the vocabulary of the discussion before it begins.
This is one reason I often use the following question when debating capital punishment: I will note that the death penalty was not only supported but used by Dwight Eisenhower, George Washington, FDR and Abraham Lincoln (Bill Clinton also supported and used it, but I tend to leave him out). I then ask my debate opponent whether he knows of any reason to believe that abolitionists know more, or are attuned to some Higher Morality, than these men.
You will not be surprised to learn that I almost never get a direct answer, few people being willing to proclaim their moral vision superior to Lincoln's. And I confess I don't ask it to obtain such an answer. I ask it to puncture the facade of moral superiority and the accompanying condescension that is the inevitable backdrop of abolitionism. Once that facade is defeated, and the debate goes forward based on fact (e.g., the increasingly one-sided evidence of deterrence) or the facts of particularly horrible, cruel and merciless murders, the debate's conclusion becomes obvious to fair-minded people.
Right on the mark.
By this argument, since Washington owned slaves, therefor it is moral to own slaves. Is this really what you meant? I believe that I have a morally superior position to Washington's in this regard. Roosevelt believed that it was appropriate to imprison American's of Japanese ancestry; I believe it was immoral. Now what?
I agree that the argument is slippery, but there are things which we (as a group) believe now that we didn't even as recently as 25 years ago. How do we make that argument?
And I think the quote is not Brennan's but CJ Warren's.
As far as deterrence goes, it is obvious that dead people are not recidivists. But I have yet to see any evidence (as opposed to assumptions about conclusions) that it is in general a deterrence. The men who stabbed my son to death on Jan 30, 2007 (trial to start mid-March) were not deterred by the reality of the death penalty. Most of the murders in LA, I think, were committed by people who knew what capital murder is, even if they didn't know the term. It doesn't seem to have stopped them
In light of your circumstances, it would be unseeming for me to offer anything more than a brief reply. Like any normal person who has had losses of his own, I feel for yours, which must be exceptionally painful.
You are correct that the phrase was first used by Warren in his plurality opinion in Trop v. Dulles, 356 U.S. 86 (1958), which involved revocation of citizenship. But it was first used in a death penalty case by Brennan in his dissent in Gregg v. Georgia, the 1976 case that effectively reinstated capital punishment as a sentencing option. Since then the phrase has been repeatedly employed in death penalty cases such as Thompson v. Oklahoma, Stanford v. Kentucky, Roper v. Simmons and Kennedy v. Louisiana.
Neither the death penalty nor any other punishment will deter all murder. That is beyond the power of the criminal justice system. The realistic question is whether the death penalty deters some murder in a way lesser punishments do not. The majority of recent studies, collected elsewhere on this site, have found that it does.
The death penalty would almost surely have a greater deterrent effect in California, and elsewhere, if it were carried out more frequently. In the post-Gregg era, California has had only 13 executions, about one-eighth the number undertaken in my home state of Virginia, even though Virginia has a much smaller population.