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Beyond Belief

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In my previous entry, I asked politicians to quit with their nonstop, sentiment-laden and gruesomely trite expressions of what they advertise (and advertise and advertise) as their personal feelings about the Newtown massacre.  We don't need more politicians' feelings.  We need to find out what happened and then act.  

It's already clear that one action due is immediate reinstatement of the death penalty in Connecticut, undoing the repeal bill adopted earlier this year.  I simply don't believe a sensate person could think that a prison sentence, no matter what its length, is proportionate to this degree of evil.  And yes, thank you abolitionists, I realize the killer this time is dead.  But the next one is still out there.

My view that immediate reinstatement is due is only reinforced by the headline I just read.  

I was a federal prosecutor for a long time, and saw some really bad things.  But I never saw anything like this:    Children in Connecticut Rampage, all 6 and 7, shot repeatedly.

All twenty child corpses, six and seven years old.  The Reuters story is here.   

12 Comments

The piece you link is unpersuasive to the extent it's not merely dishonest.

The piece starts out by suggesting that reinstatement of the death penalty would be foolish because it could not prevent either this or similar crimes. That is dishonest, both because I never suggested its reinstatement for preventative reasons, and because it simply omits the more fundamental purpose of the death penalty (or any penalty the criminal law provides), that being to impose just punishment.

The article continues its dishonesty by saying that the proposal to reinstate the DP is borne of the impulse just to do SOMETHING, anything. That too is false. To urge the resumption of a penalty that existed in Connecticut for decades before last April, and exists today in two-thirds of the states and in federal jurisdiction, is hardly blindly lashing out.

The death penalty has a long historical pedigree in this country. It was supported AND USED by such figures as Washington, Lincoln and FDR. It is supported by a majority of at least 60% of Americans. It existed and was used at the time of the Founding and is explicitly recognized in the Constitution. It is not per se a violation of the Eighth Amendmemt, see, e.g., Gregg and Baze, although specific applications of it are unconstitutional.

It is sometimes said that it should be reserved for the worst of the worst. If the premeditated killing of 20 children aged six and seven is not the worst of the worst, then language has lost all meaning. Those opposed to the death penalty for a crime like this cannot possibly be serious about punishment at all; the idea that a prison sentence fits a crime of this character is worse than a cruel joke.

I address the fact that the death penalty will do nothing to discourage similar crimes first because deterrence is one of the few valid justifications for criminal punishment.

And, in fact, I do address the idea that it's "just punishment". The desire for "just punishment" is exactly the desire to do *something* that I'm talking about in the post. It's born of our unwillingness to acknowledge that nothing we do can make things right after a crime. We can't stand that feeling of powerlessness, so we invent the idea of "just punishment" as thought punishment can ever "fit" a crime in a morally significant way.

A truly good criminal justice system is evaluated on its outcomes: whether it creates a society that is, on the whole, better for those who live in it. The death penalty does not advance that goal at all. It is just a bone we throw to our basest impulses.

"And, in fact, I do address the idea that it's 'just punishment'. The desire for 'just punishment' is exactly the desire to do *something* that I'm talking about in the post."

No it isn't. The desire for just punishment, be it the death penalty for child murder or a $50 fine for shoplifting, didn't spring up in Newtown. It has been the principal goal of criminal law since just about the dawn of civilization. I have zero desire to just "do something." I want to do something tailored to (1) prevent a recurrence and (2) if there is one anyway, impose a penalty that fits the crime.

Do you seriously believe that a jail sentence, whatever its length, is proportionate to intentionally murdering 20 elementary school children?

"A truly good criminal justice system is evaluated on its outcomes: whether it creates a society that is, on the whole, better for those who live in it. The death penalty does not advance that goal at all. It is just a bone we throw to our basest impulses."

Would you please stop with this moral superiority stuff, just announcing that the majority who disagree with you do so because they are "base" and you are "noble."

I am a lawyer and a law professor, and my ideas about punishment come from thinking about proportionality and, relatedly, what serious men who came before me thought of that same issue. I'm not a savage and neither are the millions in this country who agree with me. If you want to find real savagery, look at what happened in Newtown, if you have the stomach.

I'm not sure where your obsession with the idea that the relevant urges didn't arise in Newtown for the first time comes from. Of course they didn't. Nor did I ever say they did. Calling for the reinstatement of the death penalty *as a response to the Newtown murders* is an *instance* of a universal human phenomenon: the urge to "fix it" in the wake of a tragedy by punishing the perpetrator.

"Do you seriously believe that a jail sentence, whatever its length, is proportionate to intentionally murdering 20 elementary school children?"

This is a bad question. It assumes that proportionality is a property of the relationship between a "crime" and a "punishment" as abstract objects. Proportionality only has meaning in the context of deterrence: it is a measure of whether the degree of deterrence and the severity of the actions deterred is worth the harshness of the punishment.

Do I think that a sentence of life in prison is somehow metaphysically equivalent to Adam Lanza's actions? No, of course not. Do I think that serving a life sentence would somehow be sufficient penance for Adam Lanza in a quasi-Catholic way? Again, of course not. But so what? Neither would the death penalty. But that's not what the criminal justice system is about. Applying the death penalty would not make society better in any way, and so the sheer evil of Lanza's act cannot justify it anymore than it can justify sentencing Lanza to a lifetime of constant torture.

"Would you please stop with this moral superiority stuff"

This is amusing, coming from you. But regardless, you misunderstand. There is a huge difference between saying that anyone who supports the death penalty is "base" and saying that the death penalty is justified only by our base impulses. I don't know you. You may be morally outstanding in countless ways, and on the whole far more noble than I am. That doesn't chance the fact that you are supporting an evil institution because of the base impulse to lash out at those who remind us that we are powerless to prevent or fix all tragedies.

"If you want to find real savagery, look at what happened in Newtown, if you have the stomach."

I have no problem calling the mass murder of children and teachers out for the reprehensible and evil act that it is. I know that you like to pretend that all opponents of the death penalty must get there by being apologists for murderers, because believing that helps you hold on to your own coveted moral superiority, but it's simply a false belief.

-- Get some adult manners and get off your high horse or leave the forum. A person in so outmanned a position should show some modesty. What you show instead is belligerence and superiority.

-- From what I can tell, you simply do not believe in punishment. Fine. Have at it. Such a belief is alien to Western (and, so far as I know, most other) traditions.

Still, I'll ask rather than assume. What punishment should the Newtown killer have been given, had he been captured and determined to be legally sane? And how would that punishment fullfil your apparent requirement of deterrence?

-- In assessing what punishment is due, proportionality to the crime is one of the central, if not the central, consideration. If you don't know this, you don't know the first thing about criminal law.

-- My support for the death penalty does not arise from atavistic "urges," contrary to what you insultingly, but repeatedly, insist. It arises from my considered belief, shared by many people a good deal smarter than you (or I, for that matter) that it is just punishment, deters (although imperfectly, like any other deterrent), and optimally incapacitates.

-- "Applying the death penalty would not make society better in any way..."

That's your conclusion, but that's all it is. It's also an erroneous conclusion. Executing mass killers who have earned it in spades is, like any other instance of giving people what they have earned, a good thing for society. By contrast, excuse-making in the guise of moral preening, which is what you are doing, is a bad thing. Indeed it's nauseating, to be honest.

-- "There is a huge difference between saying that anyone who supports the death penalty is 'base' and saying that the death penalty is justified only by our base impulses."

No there isn't. And to the extent there's a small difference, it has no bearing on your point, which is, despite your late-blooming disclaimer, that you are morally superior to those who take a different view of the death penalty. Try as you might, you simply can't avoid the snide and smarmy attitude that betrays your high opinion of yourself. We are duly impressed.

-- "I know that you like to pretend that all opponents of the death penalty must get there by being apologists for murderers, because believing that helps you hold on to your own coveted moral superiority, but it's simply a false belief."

No, not all opponents of the death penalty are apologists for murderers, but quite a few are, as you would know if you ever showed up in court and heard the defense lawyer go on and on with apologies, excuses (and, even more often) utterly concocted "syndromes" that "afflicted" his grinning client.

Actually, I suspect you ALREADY know that quite a few of your allies are apologists for murderers, but are hiding behind your almost-clever-enough use of the word "all."

-- You know my real name and background. I make them available to make myself publicly accountable for what I write.

Would you please now furnish your real name and background?


"What punishment should the Newtown killer have been given, had he been captured and determined to be legally sane? And how would that punishment fullfil your apparent requirement of deterrence?"

Assuming a lot of facts not in evidence, the appropriate sentence would have been life in prison. It has as strong a deterrent effect against other potential murderers as any sentence our criminal justice system can legitimately hand out. It would also, with appropriate security measures, ensure that this specific individual did not pose a threat to society again.

"In assessing what punishment is due, proportionality to the crime is one of the central, if not the central, consideration. If you don't know this, you don't know the first thing about criminal law."

Arguments from authority are necessary in legal proceedings, but are basically useless in discussions about shaping the law, which must appeal to morality. Unfortunately, legal training teaches lawyers to rely on authority in far too many circumstances.

"It arises from my considered belief...that it is just punishment, deters (although imperfectly, like any other deterrent), and optimally incapacitates."

I've addressed the idea that it's "just punishment" (or that that phrase carries any actual content) above. Deterrence is irrelevant to this discussion, since you've agreed that it would do nothing (not just not very much) to deter similar crimes, and so deterrent effects do not justify calling for the death penalty to be reinstated *as a response to the Newtown murders*. I don't buy the argument that the death penalty is necessary for incapacitation (as opposed to prisons with more attention paid to inmate safety), but regardless that argument is clearly orthogonal to the argument you were making for reinstating the death penalty in this case. If you had said "we need to reinstate the death penalty because otherwise people like Adam Lanza would continue to be dangerous in prison," then that would be a very different discussion.

"Executing mass killers who have earned it in spades is, like any other instance of giving people what they have earned, a good thing for society."

Asserting this is begging the question. In what way is it a good thing for society? Comparing the world before and after a mass murderer is executed, what has improved? We're no safer than we were before. We're not better along any other measurable axis. The only "improvement" that we can claim is that we *feel* like we have more control over evil. That's a lie, though, and we shouldn't base our criminal justice system on our own cognitive errors.

"'There is a huge difference between saying that anyone who supports the death penalty is 'base' and saying that the death penalty is justified only by our base impulses.'
No there isn't"

I'm sorry that the large distinction between supporting a flawed position and being a fundamentally flawed person is not obvious to you. I'm not sure how more clearly I can put it.

"No, not all opponents of the death penalty are apologists for murderers."

In a comment on this post (http://www.crimeandconsequences.com/crimblog/2012/12/any-second-thoughts-today.html), you wrote: "I spent a career not letting apologists for the worst kind of behavior -- people who put on their ever-so-indignant, holier-than-thou front (but less publicly took fistfuls of money to defend mobsters) -- stop me."

I'm glad you're acknowledging that there are people who disagree with you who aren't "apologists for the worst kind of behavior." That's progress.

"Would you please now furnish your real name and background?"

I've never tried to hide my real name (Andrew MacKie-Mason). I logged in with a Google account which usually displays full names, but doesn't here because of how your blog is configured. Any other information you care to know about me should be available on my blog, linked to in my initial comment.

Here are two questions that I think would help make this discussion more useful than you repeatedly accusing me of acting morally superior while acting morally superior yourself:

1. How would you respond to someone who made exactly the same arguments you have, but replaced "death penalty" with "drawn and quartered"? To clarify, imagine you are in the position of designing a criminal justice system from scratch, and you are not bound by what you perceive as the correct legal interpretation of the 8th Amendment.

2. As a law professor and highly educated individual who is highly steeped in the Western intellectual tradition of retribution, what do you think is the single most accurate, coherent, and convincing defense of retribution (or, as you call it, "just punishment"), unmoored from deterrence, rehabilitation, and incapacitation, as a morally legitimate component of a criminal justice system?

"Here are two questions that I think would help make this discussion more useful than you repeatedly accusing me of acting morally superior..."

It's classic defense lawyering to get all indignant in the face of a true accusation. All the better to feign innocence. You have chosen the right profession.

You know full well that you view your opposition to the death penalty as making you, at least in that quite important respect, morally superior to those with the temerity to disagree with you.

Care to admit it?

"...while acting morally superior yourself."

I have a record of helping to put away the strongarms, meth pushers, cheaters, and hoodlums you gush over, and I am proud of that record. I am not going to hectored into being ashamed of it, as you would like, by some guy who thinks of himself as a redhot but has yet to present a case in court.

To your questions:

1. I would say that drawning and quartering is barbaric, sadistic, primitive and disgusting and ought not to be used by civilized people. I would, by contrast, agree with Washington, Lincoln, FDR and the entire Supreme Court that inflicting the death penalty by the means used in this country is none of the above and is proportional to the grotesque crimes for which it is imposed. (BTW, drawing-and-quartering was one of the things the Framers had in mind in writing the Eighth Amendment).

2. The justification for retribution is that people should get what they earn. The desire to "right the scale" is deeply embedded in human nature and is at the center of the meaning of justice (as civil remedies as well as criminal ones reflect). We can either channel that desire through due process and the rule of law, or we can leave it to vigilantes.

The fact that you disagree with the death penalty (as others even more far gone than you disagree with imprisonment) cuts no ice in a society where neither a popular majority nor Constitutional constraints forbid it. Nor are you the judge of this debate; you are a participant in it, and simply declaring yourself the winner is absurd and childish.

If you cannot understand the rationale of retribution (or claim not to be able to understand it), that is a deficiency you own, not one to be projected onto your adversaries.

1. Do you really think that the death penalty, which you think is proportional to much less evil crimes than Adam Lanza's, is also proportional to the premeditated murder of twenty children? If proportionality means anything, doesn't it mean that a worse crime should merit a worse punishment, so that as long as we can imagine worse crimes shouldn't we be willing to inflict harsher penalties? (If not drawing and quartering, perhaps something else?) Or do you actually agree that there is a ceiling to the punishments a civilized nation can inflict, and just disagree about where that ceiling is?

2. To clarify, I was asking for a more in depth discussion; i.e. a reference to the book or article that you think makes the case best from first principles.

As to the brief argument you presented, though, a few things: the first sentence is nothing more than a restatement of the conclusion in other words. Appeals to "human nature" aren't very convincing in this context. Arguing that it is part of the "meaning of justice" is, again, simply rephrasing the conclusion in other words. And your final point about vigilantism seems like you're just ceding to the mob: there will be violence either way, so we had better execute it through a somewhat controlled process. That's hardly terra firma for a moral system.

Finally, I find it interesting that you are willing to afford so much moral weight to the Supreme Court in this area. Would you disagree with your coblogger's posts in which they suggest that the Supreme Court often gets things wrong? Or is the Court always right when they're limiting the rights of defendants, and wrong when they're protecting them?

1. Are you being intentionally obtuse? We use the principle of proportionality as far as it can take us; by definition it can take us no farther than that.

Of course the DP is not proportional to Lanza's crimes -- or the Petite rape/murders or McVeigh's escapade, or John Wayne Gacy, etc., etc. But it's the best we can do within the constraints of civilized life (i.e., no torturing people to death, etc.). Should we do less than our best?

The theory you seemingly suggest would atomize proportionality to an absurd degree -- a degree no one to my knowledge has supported, ever. Under your theory, only The Worst Crime Ever Committed would get the DP, and the Second Worst Crime Ever Committed would get LWOP, and the Third Worst Crime Ever Committed would get life with parole, and on and on.

That must take some sort of prize for strawman theorizing.

The theory of proportionality, like any other theory of punishment that's workable in a country of 300,000,000 or so, uses classes of offenses. Thus, the DP is genarally available in this country for first degree murder with some sort of aggravating circumstances such as child murder, torture murder, murdering a witness, murder for hire, etc. I'll freely admit that it's very hard to tell which of these things is worse than the next. So what? They're all over the line that merits the DP. How far over the line varies, sure. But that is, as you certainly know, a matter of no consequence, because a person can only be executed once.

2. Prof. Earnest van den Haag was one of the most thoughtful writers about the death penalty. John Milton also wrote in support, from "first principles." I'm sure you can use Google as well as I can.

I might add, however, that, at this late date, the burden of proof falls on DP opponents, not supporters. The DP was administered in England at the Founding, has a long historical pedigree in this country, maintains the backing of a big majority or our citizens, and is consistent with the Constitution.

3. Of course the Supreme Court gets things wrong. It got Miranda wrong, for one. It got Furman wrong too (but in essence corrected it in short order). But it has never, in more than 200 years, found execution for murder per se to be a violation of the Eighth Amendment. Indeed, only four of more than 100 Justices ever took that view (Brennan, Marshall, Blackmun and Stevens). The notion that a law student could be so arrogant as to believe that a consensus that strong and that long is just too stupid to see what he so readily understands is, well, amazing.

4. Just to be clear, the problem we're having here is not about the theoretical foundations of capital punishment, which were laid long, long ago and have survived centuries of debate. The problem is that abolitionists like you just don't see that much wrong with murder, no matter how horrible a normal person would find it.

Twenty little children get mowed down by an S.O.B. with a grudge. The whole country is in shock, but do you express even a smidgen of consternation? Nope. The only thing that bothers you is those who support the death penalty.

Yikes.

1. "Of course the DP is not proportional to Lanza's crimes -- or the Petite rape/murders or McVeigh's escapade, or John Wayne Gacy, etc., etc. But it's the best we can do within the constraints of civilized life (i.e., no torturing people to death, etc.). Should we do less than our best?"

So therefore you must acknowledge that your repeatedly asking "do you think that a prison sentence is proportional to the crime" is really beside the point. By your own acknowledgment, if someone thinks that the death penalty is beyond the constraints of civilized life, then proportionality no longer has anything to tell us. You can argue about whether the death penalty is *actually* beyond the bounds of civilized life, but you have to at least admit that your rantings about proportionality (or what you said at one point about there always being a worse crime, so it being stupid to abolish the death penalty irrespective of the facts) does absolutely no work for you in that argument.

2. I can use Google, but since you've been spending so much time proudly talking about your deep level of research and commitment to the literature on this question, I was assuming that you would have a more informed answer to that question than a computer search algorithm. Is "Google" your process for assigning readings to your students?

Any particular work by either of those authors?

3. There is a point at which the exact same thing could have been said about many historical evils. The consensus of history on a point of morality is only due as much deference as the most convincing arguments that the historical literature is able to put forward. Consensus usually has more to do with social norms and realities than it does with rational thought.

4. "The problem is that abolitionists like you just don't see that much wrong with murder, no matter how horrible a normal person would find it."

Now you're back to asserting that all abolitionists are apologists for murderers. I thought we'd moved past that, Bill.

"The whole country is in shock, but do you express even a smidgen of consternation?"

Do you have trouble reading?

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