In the sixth comment to a prior thread, Doug Berman, raises a number of important points I've seen frequently in the national death penalty debate. They have sufficient gravity that I want to address them in a separate entry.
Doug's principal question is about the meaning of "proportionality" and the implications of that term in the law of punishment.
I had asked Doug if he thinks a jail sentence of any length fits the mind-bending crime of killing a hostage by burning him to death. Doug says that he does not. He adds, however:
I also do not think a lethal injection would "fit" this grotesque crime, either. The only concept of "fit" that ever really made sense to me was the classic biblical admonition: "You must show no pity for the guilty! Your rule should be life for life, eye for eye...." With that concept of fit in mind, I think the only fitting punishment here would be seemingly be execution by burning at the stake.
In a prior thread, I believe you explained that certain concepts of civilization and humanity in the United States would preclude us from seeking this type of truly fitting punishment. I am not sure I would agree if I subscribed, in any significant way, to the notion that US punishment schemes should be principally focused on trying to impose "fitting" punishments. But, in my own assessments of punishments, I do not generally use vague normative terms like "fit" or "proportionality" because I really have very little idea of what these terms can possibly mean in the vast majority of cases, especially controversial ones.
Doug's questions are good ones, but, being a simple-minded man, I don't think the answers are all that hard.
I start from the premise that Doug appears to think is ambiguous: That the punishment should fit the crime. While I agree that this principle seldom dictates an exact sentence -- and in that sense is "ambiguous" -- I do not agree that the principle itself is ambiguous or even slightly mysterious. Indeed, for decades if not centuries in the Western world, it has been the guiding principle of criminal law. If I'm not mistaken, it's understood starting in high school if not well before.
It means that the punitive quality of the punishment should be roughly proportional to the evil and harmfulness of the offense. I could probably dig up a hundred citations that give that or an almost identical definition, but I won't. The great majority of the readers of this blog will be at least as familiar with it as I am.
Doug is correct that the principle does not dictate a specific sentence in any given case, and I don't know of any serious person who disagrees with him about that. One could not say, for example, that the principle of proportionality requires a jail term of ten months (or thirty months or zero months) for Scooter Libby (an example Doug uses), who was convicted, after a career of public service, of perjury as a 57 year-old, non-violent first offender.
Of course, no principle other than proportionality could dictate a specific sentence, either. That's what it means to be a "principle." Accordingly, we should not reject proportionality as a principle simply because it won't yield a specific number of months (or weeks or days, or a fine of $990,000 rather than $1,000,000).
Although proportionality has its limits, it also has its virtues. One of the virtues is especially evident in discussions about the death penalty: It cannot tell you what specific sentence to impose, but it can tell you what kind of sentence is a permissible choice among fair-minded people. Decades of both popular and legal history in this country tell us that fair-minded people could hardly choose a death sentence for stealing your wallet. But they similarly tell us -- here and in other advanced countries -- that they could choose a death sentence for intentionally, and with a heart brimming with cruelty and sadism, burning a hostage to death.
There are two other things to note here. One is that criminals for whom the death penalty fits in spades often escape it. But to say that is to say nothing more than that irrational leniency is inevitable -- indeed, the prospect for it is built into -- any system run by human beings, liable to shortcomings, and reluctant to err on the side of harshness. The death penalty does not become unjust simply because some people who earn it elude it, any more than imprisonment becomes unjust because tens of thousands of people who belong in the slammer wriggle free (or are simply never caught). No legal system has given, or will give, fitting punishment to all its wrongdoers. But that is scarcely a reason intentionally to refrain from giving fitting punishment to any of them.
The other thing to say is that the death penalty as administered in this country (i.e., with little pain, although we know pain cannot altogether be avoided) similarly does not become unjust because it does not, as Doug points out, respond in kind to savagery.
No principle in law, including proportionality, exists in a vacuum. Other principles always influence its operation.
The principle that prevents us from responding in kind to sadistic killers is that we adhere to the Eighth Amendment and its historically well-grounded requirements that civilized life requires restraint. If retribution were all that mattered, then one could understand the impulse to burn these terrorists at the stake. But it isn't, and I know of no serious advocate of the death penalty who thinks otherwise. (Indeed, I have increasingly come to think that self-restraint is the single most important component of civilization).
To the extent we're frustrated that we cannot, as civilized people, use the same methods ISIS does, I suppose we're settling for our current death penalty as a "second best." But life is full of second bests. To say that the American death penalty does not fully satisfy the retributivist ingredient in punishment is hardly to say that we must then settle for a sentence (a jail term) that, by a shocking degree, does even less.
What it comes down to is not complicated: When the rules we have wisely imposed upon ourselves prevent us from carrying out a punishment that truly "fits" the crime, we turn to the second best choice. That's the death penalty administered with both resolve and decency. This is not a conundrum, it's not shocking; and it's not even surprising. But it is, as our people, our courts and our history understand, as close to fitting justice as we can get.
Terrific to see your extended thoughts here, Bill, but I want to follow up with two questions to more fully understand of the meaning and implications of your views. I will number my inquiries, and I hope you will find time to respond to both:
1. What does your visions of the proportionality principle say about an LWOP sentence for three hand-to-hand sales of marijuana while possessing a firearm? Or about 15-years in prison for possessing a small quantity of ammunition with a felony record?
I strongly believe that anyone seriously committed to the principle that "the punitive quality of the punishment should be roughly proportional to the evil and harmfulness of the offense" should view this punishments as deeply unjust (i.e., a horrible "fit"). Does your vision of the proportionality principle lead you to agree with my instinct that these kinds of punishments are deeply unjust (i.e., a horrible "fit")?
2. Do you disagree that at least one alternative principle --- what I might call a Liberty/Prosperity/General Welfare principle --- could dictate some specific sentences in some settings? Specifically, the principle I derive from the Framers of our Constitution is that we ought not deprive a person of Liberty for long periods at significant taxpayer expense unless and until we can be confident that doing so will improve the General Welfare --- and that principle leads me to believe that neither Scooter Libby or Victor Rita ought to be imprisoned after a career of public service for the nonviolent first-offense crime of perjury.
Finally, I want to end by quoting sections of one notable vision of what makes for a proportionate scheme of punishment:
"Whosoever shall be guilty of Rape, Polygamy, or Sodomy with man or woman shall be punished, if a man, by castration, if a woman, by cutting thro' the cartilage of her nose a hole of one half inch diameter at the least....
"Whosoever on purpose and of malice forethought shall maim another, or shall disfigure him, by cutting out or disabling the tongue, slitting or cutting off a nose, lip or ear, branding, or otherwise, shall be maimed or disfigured in like sort: or if that cannot be for want of the same part, then as nearly as may be in some other part of at least equal value and estimation in the opinion of a jury and moreover shall forfiet one half of his lands and goods to the sufferer....
"All attempts to delude the people, or to abuse their understanding by exercise of the pretended arts of witchcraft, conjuration, inchantment, or sorcery or by pretended prophecies, shall be punished by ducking and whipping at the discretion of a jury, not exceeding 15 stripes"
My students are always surprised by who it was that proposed these sentences as part of a high-profile proposal called "A Bill for Proportioning Crimes and Punishments." And for me this proposal reinforces my fear that what it people think are punishments "fitting" the crime in mostly (if not exclusively) in the eye of the beholder.
Doug --
1. I'll take the second half of your comment first.
I don't know who you're quoting, but I assume it's something from Salem 300 years ago, or that vicinity.
Yup, people can have crazy thoughts, and not just 300 years ago. Only two generations ago, people thought rehabilitation worked and that we could trust judges with 100% discretion. Didn't pan out too well.
But the fact that we can have lots of bad ideas is not an excuse for the helplessness and solipsism of "it's all in the eye of the beholder." When the American people have had a consensus favoring capital punishment for essentially all their history and now, when the Founders favored it, and when only four of 116 Supreme Court justices have viewed it as cruel and unusual, the argument about its moral acceptability is over.
(I might add that the "it's all in the eye of the beholder" theory would, if accepted, make impossible any principled discussion about the first half of your response, as I could just say, "Well, shucks, it's all in the eye of the beholder, so who knows." Indeed, any chance your argument in favor of Angelos has rests PRECISELY on the ideas that (1) proportionality counts, and (2) that we can figure out, at least roughly, what it is. Do you disagree?).
2. I said months ago, when I still commented on your blog, that I think Angelos is a good clemency candidate. I also think we should disable Iran's nuclear program right now, but I'm not going to go on a campaign for it. I get to choose my own causes out of the hundreds out there, just as you do and everyone else does.
As to the other case (Edward Young): His story of the supposedly innocent way he came by this ammunition is unbelievable, and I don't buy it. But that story is the premise of his argument for a lower sentence. Fifteen years is harsh, but it is not cruel and unusual.
3. I noted in my entry that proportionality -- the notion of fitting the crime -- is an extremely important principle of punishment, but not the only important principle. Here are some others:
-- Personal responsibility.
-- Respect for law.
-- Assumption of risk.
-- Learning from your mistakes.
-- Contrition over grievance.
-- Understanding that law is trade-off's.
All those principles must be weighed in the balance along with proportionality. Neither Angelos nor Young fares well under them. To very briefly give a word on Angelos: What, he thinks he has a right to make his "living" as an armed drug dealer? He just blew off his prior convictions and kept right on keepin' on. Now he wants us to believe it's all the system's fault.
Oh, and wasn't he offered a much lower sentence by the prosecutor? I recall that he was, but he wanted to try to bamboozle the jury. Fine, that's his right, but he's in less than an ideal position to complain about it when the jury refuses to be fooled.
As I say, I think he's a good clemency candidate given the length of the sentence, but my sympathies, and my efforts, will go elsewhere.
At issue, Bill, is whether your commitment to fitting punishment leads you to be troubled by how Angelos and Young have been treated by our federal system. I read you response to be, in essence, other principles are more important in these cases than concerns for fit.
I think that is a very acceptable viewpoint to be concerned about principles other than fit, but this viewpoint should allow you to respect when abolitionists say, in support of opposing the death penalty in all cases, that principles other than fit matter to them. They probably say respect for life, concern for human error, concern for equal justice, learning from mistakes and economic trade-offs all justify abolition even if "second-best" fit may not be achieved.
As for Angelos and Young, it is not "fit" principles, but my Liberty/Prosperity/Welfare principles that lead me to criticize their enduring imprisonment. I will say again, I do not know what fit means, but I do know what liberty means. And we broke off from England not because of a desire for greater punishment fit, but for greater liberty. Ergo, I think my principle is more American and its Founders than others in this area.
Speaking of the Founders, one of them authored the passages I quoted above. Want to take another guess who thought these were fitting punishments around the time of the American Revolution?