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Debating the Death Penalty

| 9 Comments
Kent noted that it's next to impossible to change someone's mind about the death penalty, because the most basic and controlling views are dug deeper than the place argument can reach.

I've had much that same experience.  In all the time I've been thinking about this issue, I have changed only two minds.  One belonged to my mother-in-law, a pretty much down the line liberal, but with an independent streak (she ran away from home as a teenager to join the Israeli army in its earliest days.  She was an ambulance driver on the battlefield).

She held the conventional wisdom in Upper East Side Manhattan, where she lived. We got to talking one day about capital punishment, and I brought up the question what we're supposed to do with a previously convicted, angry and unrepentant multiple killer serving LWOP, who then does it again in prison, and vows this won't be his last.

That stumped her.  (She's not the only one, of course).  So she came around.

She was very into Jewish causes (the Holocaust Museum among them).  I'm sure she knew that Israel had kidnapped and executed Adolph Eichmann, and thought that was the right thing to do.  I believe that set the stage for her having the sort of open mind that, while rare, is the essential precondition for coming around. 
In any event, I am set to do a couple of death penalty debates next month at law schools in Pennsylvania and Florida.  One of the event organizers asked me to jot down an outline of what I would say.

I provide it below, but not for the purpose of making any arguments readers of this forum have not heard before.  I provide it hoping for criticism.  That is, if some of my points have become stale, or (contrariwise) others deserve more emphasis, I hope readers will let me know  --  or if there's something I'm just flat-out missing.

Thanks in advance.

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I favor the death penalty for several reasons.  There are some crimes so grotesque that nothing else is even arguably justice; it's the only certain means of incapacitating a killer; the majority of studies show that it deters (although some show otherwise); what else do you do when a previously convicted killer serving life kills again in prison; the majority of our people favor it and have (by 60% or more for forty years); and it's a symbol that society has the moral confidence to declare, and enforce, that there are some deeds so far beyond the bounds of civilized life that those who do them have forfeited any place among us.
 
I will be using two or three examples of cases where I think reasonable people would view merely a jail sentence, no matter what its length, as not proportionate to the gravity of the crime.  I will also offer academic studies, and statistical and anecdotal evidence supporting the view that the DP has deterrent value.  I will point out that if the DP is moral (as a big majority of our people believe), legal (as SCOTUS has held), and popular (see just today's Gallup poll), the jury  -- the voice of the community  --  should not be deprived, in advance, in all cases, of the choice whether to implement it.  I will point out that our three greatest Presidents not only supported but used the death penalty (Washington, Lincoln and FDR).  Thus I think the view that it is supported only by "barbarians" is incorrect.
 
There are of course some counter arguments.  One is that it's too costly and takes to long.  But exactly this argument was made to and rejected by the taxpayers and voters in a very blue and liberal state, California, only two years ago.  (In addition, I think the argument is more than a little cynical, the cost and length having been exacerbated by abolitionist arguments).  Another is that the US is all but alone in the world in having the DP.  That too is incorrect.  In fact, most of the world has it:  the Orient, the Subcontinent, the Middle East, Africa, the Caribbean and (of course) by far the largest country in North America.  Death penalty opponents will sometimes say "the world" when what they should be saying is "Europe."


Any thoughts?

9 Comments

I agree that there are "some crimes so grotesque that nothing else is even arguably justice ... some deeds so far beyond the bounds of civilized life that those who do them have forfeited any place among us."

If I was debating you, I would ask you (1) to define that seemingly narrow category of crimes (beyond simply providing two or three examples of cases that clearly justified imposition of the DP); (2) whether the manner in which the DP is actually administered (in the states that permit it) is limited to a narrow category of grotesque crimes, or extends beyond that category; (3) how would you draw the line differentiating grotesque crimes (for which the DP is just) and non-grotesque crimes (for which the DP (presumably in your mind?) is unjust) without simply laying the issue on the laps of the trier of fact to sort out; (4) do you believe that the "exoneration" of persons on death row in any way, to any extent, undercuts the justification for the DP. Or, stated another way, do you believe that the risk of putting an innocent person to death (or, at least, putting someone to death who is not responsible for committing a "grotesque" crime) has been shown (by the Innocence Project or any other such organization) to be too great to permit the imposition of the DP; (5) do you believe that, given the risk of executing an innocent person, that the beyond a reasonable doubt standard of proof should be modified in DP cases, say, for example, by allowing the trier of fact to spare the convict's life if they have "any lingering doubt" as to his guilt or as to the appropriateness of the DP; (6) do you believe that there should be national (or at least state-wide) standards regarding when a prosecutor can seek the DP, instead of leaving that decision to the discretion of individual county prosecutors throughout the country -- prosecutors who may have differing definitions of what constitutes a "grotesque" crime; differing beliefs regarding the necessity of the DP; differing motives for seeking the DP, including, in some instances, political motives such as establishing a reputation as being tough on crime in order to help guarantee re-election?

P.S. There are a few spelling errors in your outline: First word in second sentence. Last paragraph: "the US is all but alone in the world IN having the DP"

paul --

Thank you very much. Excellent questions. Should I try out my answers on you, or is that asking too much?

And thanks for finding my typos, which I have now corrected.

Yes, I am happy to provide input.

I think your point regarding the rest of the world (minus Europe and perhaps Central / South America) using the death penalty is good but you should emphasize that it is used in democratic countries like India and Japan and make it clear not just places like Iran and Saudi Arabia.

Matt,

Good suggestion, which I will take. Thanks.

paul,

Thanks. Let me start in.

1. "[D]efine that seemingly narrow category of crimes (beyond simply providing two or three examples of cases) that clearly justified imposition of the DP."

Crimes that grossly violate consensus standards of civilized life. A non-exhaustive list would be murder in connection with torture, contract murder, child murder, terrorist murder, multiple murder, murder of a police officer, judge, witness or prosecutor, murder in the course of committing or attempting to commit a violent felony, attempted mass murder (e.g., a near-completed attempt to put lethal poison in the NYC water supply), and aggravated rape.

I'd be interested in additions or subtractions from that list.

2. "[W]hether the manner in which the DP is actually administered (in the states that permit it) is limited to a narrow category of grotesque crimes, or extends beyond that category."

I am probably missing something here. I don't see where the method of administering the DP is logically connected to the crimes for which it may be imposed.

I would, of course, forbid execution by torture, and basically carry forward the Baze test.

3. "[H]ow would you draw the line differentiating grotesque crimes (for which the DP is just) and non-grotesque crimes (for which the DP (presumably in your mind?) is unjust) without simply laying the issue on the laps of the trier of fact to sort out?"

By laying it in the lap of the legislature. The legislature writes the list of DP-eligible offenses, and the jury figures out whether this particular crime, if on the list, should actually be punished with death.

4. "[D]o you believe that the "exoneration" of persons on death row in any way, to any extent, undercuts the justification for the DP. Or, stated another way, do you believe that the risk of putting an innocent person to death (or, at least, putting someone to death who is not responsible for committing a "grotesque" crime) has been shown (by the Innocence Project or any other such organization) to be too great to permit the imposition of the DP?"

Every human institution carries a risk of error, the death penalty included. But since that is true, the only adult inquiry is which risks of error we choose, not whether we're going to entirely avoid error. We aren't no matter which way we turn.

If the purpose here is to minimize the risk to innocent life -- which I take it is not reasonably debatable -- then the DP is by far a better option than LWOP. Prisoners serving very long and/or life sentences kill again, and have done so with massively greater frequency that even the most rabid abbie contends that we have executed the innocent.

In addition, laws accepting the killing of the innocent are accepted all over the place. The adult question is what we get in return for allowing it.

The law of self-defense allows cops (and others) to use deadly force if they have a reasonable, THOUGH MISTAKEN, belief that they are in imminent danger of grave bodily harm or death. Society has concluded that allowing a person to defend himself in those circumstances is worth the occasional lethal error.

High speed limits virtually guarantee more highway deaths than if they were, say, 30 mph, but we accept this because the promotion of convenience through high speed limits is worth it. Indeed, it's not even controversial. Ditto for space flight and vaccine testing. Again, it's what society gets in exchange for taking the risk.

Probably the most obvious example is war. We take the risk of killing thousands of innocent civilians (and in fact did so in both Europe and Japan) because it's worth the candle.

The abolitionist cry of "It's totally unacceptable for the law to permit the possible killing of the innocent!" is just pure hogwash if one but thinks it through.

Then, of course, there's the fact that there's no consensus evidence we are, or in recent history have, executed a factually innocent person. It's not just the risk, but the degree of risk, that counts.

5. "[D]o you believe that, given the risk of executing an innocent person, that the beyond a reasonable doubt standard of proof should be modified in DP cases, say, for example, by allowing the trier of fact to spare the convict's life if they have "any lingering doubt" as to his guilt or as to the appropriateness of the DP?"

I think that, de facto, the standard is already what you say.

There are two basic reasons death sentences are down in recent years. The first is that the murder rate is down, so the perceived need for a strong societal response has abated. The second is that juries -- that is, normal people -- are naturally quite reluctant to sentence a fellow creature to death unless they are very, very sure.

6. "[D]o you believe that there should be national (or at least state-wide) standards regarding when a prosecutor can seek the DP, instead of leaving that decision to the discretion of individual county prosecutors throughout the country -- prosecutors who may have differing definitions of what constitutes a "grotesque" crime; differing beliefs regarding the necessity of the DP; differing motives for seeking the DP, including, in some instances, political motives such as establishing a reputation as being tough on crime in order to help guarantee re-election?"

No, I do not believe there should be a national standard. The genius of federalism is that it allows states to decide issues like this for themselves, based on what are certain to be (and are) different community standards.

I do not view it as a bad thing -- quite the contrary -- that a prosecutor or judge or jury in Vermont could have one set of values, in South Carolina another, in Nebraska another, and Washington yet a fourth. This is exactly what the Framers had in mind.

*******************

Again, I thank you for your input, and welcome yet more.

Bill, your answers are very well constructed and expressed with sincerity and passion and, therefore, very persuasive -- assuming your audience is open to being persuaded.

When are the debates? Who are your opponents? Will a video, audio or transcript of the debates be available?

Good luck!

paul,

Thanks very much.

The debates are at Barry Law School in Orlando on Nov. 11, and Duquesne Law School on Nov. 20. The opponents are law professors at those schools who have been active in opposing the death penalty.

I don't know if there will be a taping, but often there is. I'll post it if and when one becomes available.

If you're curious as to what I look and sound like, just watch any Tom Cruise movie.

OK, that's a joke. But below is a tape of me debating mandatory minimum sentencing on "Hardball" on MSNBC.

http://www.msnbc.com/hardball/watch/not-everyone-thrilled-with-new-drug-law-sentencing-minimums-42153539933

I always thought it was much more Clark Kent than Tom Cruise. ;-)

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