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The Terms of the Debate


I frequently comment at Sentencing Law and Policy because, among other reasons, I like to keep my finger on the pulse of what the other side is thinking.  The fellow who runs that blog, Prof. Doug Berman, is a liberal/centrist  --  an eclectic and sometimes innovative thinker who mostly, but not absolutely always, sides with the defense. 

The commenters are something else.  Some are anti-American hotheads.  Some are ex-cons.  Some are defense counsel, who can range from snark specialists to extremely thoughtful and fair-minded people.  A few are conservatives and/or libertarians.

The reason I bring this up is that I have found some common blind spots that recur on the Left no matter what the topic.  Right now I want to talk about three of them.  They are the failure fully to understand that (1) every act of government, in law enforcement and otherwise, costs money; (2) every institution of government is unavoidably fallible, because human beings are unavoidably fallible; and (3) everything in life involves trade-off's, often painful ones.

After the break, I give some in-the-news examples of where these errors crop up.  Right now, I want to emphasize what an appreciation of these errors, taken together, means, to wit, that it's frivolous for our opponents to engage in blinkered sloganeering and think they've made an "argument."  For example, to bullhorn constantly about the costs of X, without being candid about what X achieves, or the costs the alternative to X is likely to create, is unpersuasive and dishonest. 

Even more than dishonest, it is, I have come to believe, childlike  --  not in the sense of charming or innocent, but in the sense of bedazzlement with things that sparkle combined with disinterest in things that don't, but are equally or more important to the task at hand.   The juvenile quality of Leftist thinking, perhaps more than anything else, is what makes it consistently untrustworthy in matters of consequence.

There are a number of topics current in criminal law:  Drug legalization, the big price tag for incarceration, and the costs of the death penalty.   The errors I have described are rampant in the Left's analysis of all three.

Let's start with the costs of the death penalty.  We hear that it costs a lot to litigate a capital case, and it does.  What we don't hear about is the trade-off, i.e., the costs saved by resolving murder cases with a guilty plea brought about in part by the threat of the death penalty if the case goes to trial.  We also don't hear about the significant extra costs it will take to house (and, in his elder years, provide medical care for) a (say) 30 year-old killer of the especially ruthless or conscienceless kind  --  the kind who are most likley to find themselves in a capital prosecution.  

There are people who kill because that's what they are all about (Ted Bundy and the BTK killer come to mind).  Such people are thankfully mostly few and far between, but they're out there.  They cannot be housed in the general population.  We will need years-long and very expensive security arrangements for them.  That too will cost big money  --  money the Left pretends, by being silent about it, will never have to be spent.  But being silent won't pay the bill when it comes due.

For present purposes, I won't go into one of the most obvious eliminable sources of the cost of the death penalty, i.e., the excessive litigation expenses egged on by precisely those who complain most loudly about.........ummmmm........excessive cost!

And there's the fallibility error.  Abolitionists are quite well aware, and vocal, when it comes to the fact that, because of fallibility in the judicial system, we might execute an innocent person.  But they completely ignore  --  and will try to shout you down if you start to discuss it  --  the at least equal fallibility in the prison system.  We know for an historical fact that murder convicts who legally could have been sentenced to death but were never executed have killed again.  This has happened in prison dozens and dozens of times, and, as well, in cases of erroneous release, escape or parole.  The number of people murdered by previously convicted killers is well over a hundred; it may be in the hundreds by now.

These were preventable murders.  We had but to do what we legally could have.  So it is absolutely the case that, as abolitionists say, innocent people have been killed by our present system.  The massive majority of them, however  --  if not every last one  --  was killed not because we imposed the death penalty but because we failed to impose it.

Trade off's, ladies and gentlemen.  And fallibility everywhere in life.  These things cannot be escaped, and they cannot be made to go away by refusing to admit them.

Now let's talk about the costs of incarceration.  Again, they are substantial, and they've been growing significantly over the last 25 years or so.  It's easy to illustrate how, if we just release inmates, we save dollars.  And we save those dollars now, in time, shall we say, for the next election.

But what's the never-mentioned trade-off?

Well, first, there's justice.  These people were not in prison for no reason.  To release them prematurely is to give them a parole they had yet to earn.

Second, there's increased crime.  The incidence of recidivism is not zero.  Indeed it's way, way above zero.  When we release inmates early, we are sentencing innocent and unsuspecting people to be crime victims.  The difference, of course, is that the number and identity of those victims is not yet known.  These facts are therefore easy for politicians to sweep under the rug, even as they hold a smiley-faced press conference to announce that  --  see there!  --  we're saving the taxpayers X number of dollars next year. 

Unmentioned are the human and financial costs of the additional crime they have made inevitable.  And if any of the release-them-now crowd pushing for this solution has ever said that, well, we should make some effort to at least keep track of the coming, increased crime-related costs  --  so we can re-visit the cost question with more information  --  I never heard of it.

There is a good deal more to say on this question, and I'm afraid I might have promised more than I have delivered right now, anyway, but I wanted to get these thoughts down.  I'll have more to say later.  But the three analytical errors I mentioned are so pervasive that I wanted to get this on the table now.      

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