While the defense is brainstorming to come up with psychobabble excuses for child shredder Dzhokahr Tsarnaev (or seeing what some social worker will agree to say), other grisly news continues apace. This story caught my eye:
Isn't it a nice touch that she's the one in the hospital?
[A] Philadelphia woman accused of abandoning her quadriplegic son with cerebral palsy and leaving him alone in the woods for over five days with nothing but a blanket and a Bible will be charged with attempted murder once she is released from the hospital.
Isn't it a nice touch that she's the one in the hospital?
Still, we wouldn't want to get too tough here. She left him a Bible, after all.
Nyia Parler, 41, is accused of leaving her 21-year-old son in a wooded area ...around 11 a.m. Monday before traveling to Montgomery County, Maryland to visit her boyfriend.
At least the trip was for something urgent.
"A lot of things could've happened out there," [Officer] Walker said. "Obviously he's in the middle of a wooded area. You have wild animals out there. You never know what's going to happen...."
Officials describe the victim as "non-verbal" and completely dependent on others for his care.
In my view, a jury should be able to consider the death penalty for behavior involving life-threatening harm, gross cruelty, and conduct outside the bounds of civilized life. In other words, it should be able to consider it here.
Agreed. I never understood how shooting someone in the back in the head and leaving them to die is morally and legally less culpable if the person miraculously survives.
The intent is the same.
This "lady" is no less a miscreant either.
Your proposed death penalty for "life-threatening harm, gross cruelty, and conduct outside the bounds of civilized life" raises a number of interesting questions. Driving while intoxicated certainly is life-threatening harm. So is falsely reporting that you've repaired an airplane when you haven't. Or polluting an aquifer used as a drinking water source. Would you support the death penalty for those offenses?
I'm not sure what "gross cruelty" means. Would that include, say, any offense that results in bodily harm or injury? How "gross" does the cruelty have to be? Would a broken limb suffice? What about a gunshot wound?
And "conduct outside the bounds of civilized life" according to whom? For example, funadmentalist Mormons believe that polygamy is required by their religion, but most Americans consider it outside the bounds of civilized life. Death penalty for polygamy?
- Victor
"Beyond a reasonable doubt" raises questions.
"Willfully" raises questions.
"In concert with" raises questions.
We routinely allow juries to consider all those and many more. Indeed, the complaint I'm hearing is that we don't allow juries nearly often enough to consider them, having pushed the system towards allegedly coerced (and false) guilty pleas.
If the jury is competent to resolve the questions routinely put to it in criminal cases, it's competent to resolve the ones you pose as well.
P.S. How would you characterize the behavior described in this entry? I would start with "inhuman" and head downhill from there. If she could push him into a forest, she could push him in front of a hospital, right?
What sentence would you impose?
Are you suggesting that we let juries decide whether to impose the death penalty in any case where there's arguably "life-threatening harm" or "gross cruelty"? Wouldn't that represent an expansion of the death penalty so vast that we would need an entirely new criminal justice infrastructure to deal with it? If every DUI was punishable by death, I would think every DUI would now be going to trial. And not just your typical 2-day DUI trial, I would imagine.
I would describe the behavior in this case as shocking, horrific, and disturbing. I'm glad the man lived. Without more information, I don't know what the proper punishment should be. Is the mother mentally ill? Certainly seems possible. That might impact the eventual punishment.
I do believe that if you let juries start imposing the death penalty for, say, DUI or assault with a deadly weapon, we're going to need to do thousands of executions a day. I would also imagine that very quickly almost everyone would know someone who's been executed, and public sentiment toward the death penalty might change rapidly.
-V
Victor, here is my position, for what it's worth. As an "outside blogger" here, Bill, is, of course, free to disagree.
My view is that the Supreme Court precedents that require that the circumstances that define death-eligible offenses be defined with some degree of objectivity make a good policy. Whether this rule is constitutionally required is more doubtful.
I am also generally opposed to the death penalty for nonfatal offenses, although there may be some exceptions. Treason, for example, I think should be capital even if no specific death can be causally tied to it.
My reason for this position is utilitarian. Even though some criminals who do not kill deserve death as a matter of justice (rape and torture of a child, for example) it is in those kinds of cases that we need to maintain a differential in punishment between killing the victim and not for the purpose of providing an incentive not to.
"If every DUI was punishable by death, I would think every DUI would now be going to trial. And not just your typical 2-day DUI trial, I would imagine."
DUI is not even arguably gross cruelty or outside the bounds of civilized life, and therefore not something that would be eligible for the DP under the criteria I stated.
"Is the mother mentally ill?"
The rush to find, or create, an excuse is inevitably the first instinct. The problem is that it so often comes a cropper of reality. There is no evidence I could find in the story that she's mentally ill.
From what I can see, she didn't want to be bothered. And -- in a sense -- who can blame her? Taking care of a child with this degree of disability must be hugely taxing.
Still, she could have wheeled him in front of a hospital, right? Instead of into the forest, where he'd be lucky merely to starve to death rather than turn into a meal for some animal pack (including, I suppose, insects, since he's completely helpless and immobile).
And why the quick jump from this grotesque case to DUI? You and I both know that there's no possibility the DP is going to be imposed merely for DUI or anything close to it.
The question is not whether we have thousands of executions a year, which we have never had and aren't going to have. The question is whether our law has enough backbone left to do something more about this sort of behavior than call it bad names and look some -- any -- excuse.
Kent - Thanks for the clarification.
Bill - Your criteria, as you stated, were: "life-threatening harm, gross cruelty, and conduct outside the bounds of civilized life." You've now dropped "life-threatening harm." I was responding to your original criteria. If you don't consider DUI "life-threatening harm," can you give me some examples that you believe should be death-eligible? Or is it up to a jury to decide in every case? Or is "life-threatening harm" now out of your criteria?
I'm jumping to DUI because it certainly seems like an offense that involves "life-threatening harm" and I'm interested in exploring the parameters of your desired death penalty scheme. You've set forth a bold vision: "a jury should be able to consider the death penalty for behavior involving life-threatening harm, gross cruelty, and conduct outside the bounds of civilized life." I'm interested in the details. If we're going to let a jury decide, what limits will there be, if any?
There's no evidence in the story that the mother is mentally ill, but that's why we don't impose the death penalty on the basis of news stories. Of course the behavior is horrifying and repulsive; the question of what penalty to impose often involves considerations other than the plain facts of the offense.
And I know as well as you we aren't going to have thousands of executions a year. I'm interested in the details of your proposed death penalty, and its ramifications, which I suspect are far more broad than you're contemplating.
-V
Victor--
Your error is that my criteria are conjunctive, not disjunctive. I haven't dropped any of them.
And I don't recall calling for the death penalty for this woman immediately or without a trial. Where was that?
Kent --
Would you have voted with the majority or the dissent in Kennedy v. Louisiana?
Bill - My mistake for misreading your criteria. And I don't believe I said anywhere that you called for the death penalty for this woman without a trial. I said "we don't impose the death penalty on the basis of news stories." That is, without all the facts, and a full and fair hearing, I am unprepared to say what a just sentence would be.
To get back to my point, it's easy to talk about imposing the death penalty for all kinds of offenses, but the devil's in the details, as it often is. I assume you think this crime should make the mother death-eligible. What I'm curious about is why this crime should be death-eligible and not, say, refusing to vaccinate a child who then dies. Or should that be a death penalty offense as well? Could you come up with a specific list of what crimes should be death eligible, or should a jury decide in every instance? And what crimes, exactly, involve "life-threatening harm, gross cruelty, and conduct outside the bounds of civilized life," in your view?
1. "I am unprepared to say what a just sentence would be."
Fair enough. Would you then say that the eventual jury (if she chooses a trial) should be absolutely disabled from imposing the death penalty.
I'm not asking whether it will be. I'm asking whether it should be.
2. "Could you come up with a specific list of what crimes should be death eligible...?"
I suppose I could, if someone were willing to pay me the considerable amount I would charge for revising the Criminal Code, and give me a big paid staff to help.
Other than that................
What about refusing to vaccinate a child who later dies, to use just one example I cited above? Death-eligible or not?
And should there be a specific list of crimes, or would you let a jury decide whether any charged crime involves "life-threatening harm, gross cruelty, and conduct outside the bounds of civilized life"?
In this case, yes, I would say the jury should be absolutely disabled from imposing the death penalty. Part of the reason why is the point I've been trying to get at during this whole exchange. We don't decide whether the death penalty is on the table based on how offended we are by the facts of a particular case. Why should this case be death-eligible and not, for example, any other case in which someone is injured? How do you define that and make it apply in a practical sense? In other words, what factors make this case death-eligible and not another case in which a 21-year-old man is injured? The vulnerability of the victim? The callousness of the mother? Should we make any case with a vulnerable victim a death penalty offense? Or is it purely ad hoc?
Look, I understand being outraged about this case. It's plainly outrageous. But calling for the death penalty in this case (or calling for the jury to be able to impose the death penalty) raises a host of questions beyond this case. That's my point.
For the reasons stated in my last comment, I am not going to attempt to go through the offenses in the Criminal Code and declare death eligibility vel non for each one. Beyond the scope of what I do here. I've stated the principles I would use, and I am content, in this setting, with that.
I will give you the answer to your one hypo, however, but that's going to be it.
I would not make failure to vaccinate a death-eligible offense, and it's pluperfectly easy to see why, given the criteria I stated. No normal person could think such a failure is "outside the bounds of civilized life." I won't even get into the attenuation problems, there being no need to.
Some parents think the risks of vaccination outweigh the benefits. I think that decision is incorrect, and perhaps even nuts, but it's debatable whether it's even criminal, much less worthy of the ultimate punishment.
P.S. I am by no means suggesting that the DP be on the table in this case because, as you say, I'm "offended" or "outraged." That trivializes the reasons people support the DP, and suggests that the support is less thought-through than just emotive.
Do you really think I want executions because I'm offended?
The conclusive answer to the "it's-just-outrage" line was given in last night's Intelligence Squared debate. I hope you listened to it.
Bill,
Had I been on the Supreme Court when Kennedy v. Louisiana was decided, I would have been in the dissent. Even though I disagree with Louisiana's statute as a matter of policy, the people of that state are entitled to decide the question the other way in the exercise of their right of democratic self-government. Nothing in the Constitution of the United States takes that decision away from them.
In the position I was actually in, though, I declined to file an amicus brief supporting the state.
Kent -
If states are free to decide for what crimes the death penalty is appropriate, in your view could a state constitutionally punish, say, petty theft by death? (I mean, of course, if Kennedy didn't exist.) Does it matter that theft was punishable by death in some states at the time the Constitution was enacted?
Not that any state would do that; I'm just wondering if you think it would be constitutionally permissible.
-V
Victor,
Whether the Constitution contains any limits at all on proportionality is a different question, and I did not say that "states are free to decide for what crimes the death penalty is appropriate" without limit. In the Louisiana case, though, the death penalty is a deserved punishment for that crime, and my disagreement with it is based on practical considerations.
I have benefited greatly from this interesting discussion and the different voices involved. For me, the hardest sets of cases for the death penalty if "life-threatening harm, gross cruelty, and conduct outside the bounds of civilized life" were adequate would be repeated aggravated drunk driving.
I have long asserted that just a few high-profile capital prosecutions of repeated aggravated drunk drivers who caused major wrecks might help significantly deter this deadly and far-too-common crime. With drunk driving as one of the biggest causes for the loss of innocent lives, I would be inclined to endorse a state experiment with making the "worst of the worst" repeat drunk driving death penalty eligible. I wonder if Bill and Kent and others would likewise see the potential benefits of use of the death penalty in this setting.