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The Mask Slips Again

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What's the most awful thing about the Aurora mass murders?  Choose one:

(a)  Twelve innocent people, including a six year-old girl, got wiped out.
(b)  The whole nation got a jolt about what some people are capable of.
(c)  We're about to be reminded of how much mindless delay the system tolerates.
(d)  The episode was poorly timed for purposes of proponents of Prop 34.

Yup, you got it, it's (d).

Sometimes you have to see abolitionists to believe them, which is one reason I tune in to Sentencing Law and Policy, where a bunch of them hang out in the comments section.  I thus bring you this gem from someone who identifies himself as a California capital defense counsel, but otherwise (understandably) refuses to give his name:

Dear Mass Murderers:

Proposition 34 is coming up on the ballot in California this November. It looks like it has a reasonable chance of passing, and that we will succeed in removing the barbaric death penalty from California. Could you guys hold off in carrying out anymore grizzly mass murders? We don't need to galvanize the other side.

Thank you.

Is that beautiful or what?  It can't be entirely a joke; not even a total creep would joke about Aurora.  No, it's what these people actually think (but mostly keep under wraps):  That the problem with the latest grisly mass murder is not that it's a grisly mass murder, but that its timing is strategically inapt for what had been the plan to hoodwink California voters into abolishing the only penalty that fits the crime!  Drat!

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As an abolitionist and supporter of Proposition 34, the SAFE California Initiative, I would like to concur with Bill Otis that it's tasteless to regard a tragedy and outrage like the Aurora mass shooting mainly in terms of possible political ramifications. It's horrible when private citizens become multiple murderers, and equally horrible when our correctional administrators and peace officers are put in the position of hired killers. The perpetrator of this outrage, if found legally sane, should get life without parole plus labor and restitution (LWOP+R). That's a just and awesome retribution which affirms our values against the killing of subdued or otherwise defenseless victims, rather than embracing those of the perpetrator.

From one viewpoint, either the death penalty or LWOP may be about as relevant to deterring this kind of perpetrator, not to mention the architects of Columbine or Virginia Tech, as such a punishment would be to deterring Hurricane Katrina. Sociopathic killers tend to value their own lives not so much more than those of their victims, although this can of course vary.

Proposition 34 is good originalist sense, because it brings California law in line with an enlightened interpretation of the Eighth Amendment as propounded in the Founding Era, which held that only "absolute necessity" could justify capital punishment. That epoch exactly coincides with the American Criminal Justice Revolution replacing capital and other corporal punishments with long-term incarceration in the new institution of the penitentiary. Today, with our SHU or SuperMax units, it's possible to incapacitate even the most dangerous prisoners.

As early as 1793, Justice William Bradford of the Pennsylvania Supreme Court suggested that while death is in principle the most awesome deterrent, in practice it could be effective only if it were applied as a mandatory penalty for the crime of "deliberate assassination" without hope of "pardon." Further, it could succeed only if citizens -- including jurors who often preferred lesser offense convictiosn in capital cases -- did not "revolt at its severity." Otherwise, it would be ineffective, and therefore "unnecessary" and constitutionally "cruel."

Today, as Justice Bradford foresaw might well be the case with "the progress of civilization," the death penalty serves mainly to divide a society which should unite in an awesome punishment of the culprit (LWOP+R) which the vast majority of society can support. And as Justice Bradford reminds us, primarily from a deterrent point of view but also from a desire to emphasize the value of human life which retributivists will emphasize, the punishment for "the higher degrees of murder" should indeed be awesome. Then and now, LWOP+R fits the bill.

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