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Where, in Light of the Charleston Massacre, Are the Calls for a "National Conversation" to Keep the Death Penalty?

| 26 Comments
So often when the media perceive a "crisis," we hear the call for a "national conversation" about what should be done.  There have been repeated calls for a "national conversation" about race, the war on drugs and its consequences, policing, and "mass incarceration."  An outrage, we are told, needs the nation's focused attention, and, more than that, our action.

There is nothing we can do to bring back the victims of the Charleston massacre.  We know who the killer is and why he did it. Realistically, the only thing left in that case is to determine the punishment.  Where oh where is the call for a "national conversation" about what punishment fits the enormous damage the massacre brought about?  The re-opening of terrible wounds?  The trauma to the city and the country?

I haven't heard a single call for such a "national conversation" and I think I know why.  

No sensate person could (or, I suspect, does) think that a jail term, no matter its length, is fitting justice for this atrocity.  Putting entirely to one side the national shock and grief it has caused, the deliberate slaughter of nine defenseless people, no matter their race, by a calculating shooter, no matter his, calls for the death penalty. This is Dzhokar Tsarnaev, lynching-era version.  The Beltway sniper telescoped to ten minutes.  Timothy McVeigh without the truck.

It's telling that the liberal media refuse to call for a "national conversation" about why, for murders opening an ocean of social poison as ghastly as this, our sentencing law requires something more than jail.  What it tells you is that abolitionist thinking is impervious  --  not impervious as in steadfast; impervious as in intentionally oblivious. In Dylann Roof, abolitionist refusal to consider the horrendous facts of individual cases comes face-to-face with its new Patron Saint.

Enjoy him, guys.  You own him now.

26 Comments

Yes, Bill, there are people who think life in prison is the appropriate punishment for this crime. I think they are very wrong, but I don't question the sincerity of their belief.

One time when I was still commenting at SL&P, I was floored when one person on the other side actually said that Norway had done the right thing in sentencing Anders Breivik to 21 years for murdering 77 people, holding that up as an example of enlightenment. (That comes to 3 1/4 months per life, for the record.) I knew the guy was a dyed-in-the-wool soft-on-crime type, but I was stunned even he would go that far.

They do exist, they are sincere, and they are very wrong.

A superb explanation of why the road to hell is paved with sincerity.

In a number of death penalty debates I have had, the other side has admitted that Crime X does indeed deserve the DP, but that we shouldn't impose it anyway, for reasons A, B, and C. Usually those turn out to be the possibility of executing the wrong guy, the risks of bias or incompetence in the legal system, and that an advanced society should be "above" death sentences.

In this case, no one could think we have the wrong guy. And the case will attract the very best the legal system can offer (as did the Boston Marathon case).

The final reason is inside-out in this particular instance. This was lynching with a semi-automatic. It is precisely the case that an ADVANCED society needs to make a statement that lynching, in whatever form it may take, is over with, and those who want to do it -- and still less do it nine times in one night -- are over with too.

As much as any, this case illustrates the imperative that a morally confident society must sometimes say NO and mean it all the way down.

Would you encourage us, Bill, to also have "National Conversation" to allow the death penalty to be administered in public and painful way? I personally do not view mere a "painless and private death" to be a "fitting justice for this atrocity." Do you? What arguments do you think justify having the death penalty administered in a painless way?

I think those against the death penalty sincerely believe there are punishment lines that the state should not cross. I suspect you likely agree with them with respect to torture as punishment (though I suspect there are a good number of folks in the US and worldwide who would say the "deliberate slaughter of nine defenseless people" could justifies some torture as punishment on the way to death).

Do you think we ought to have a national conversation about whether we should torture Roof as part of the "imperative that a morally confident society must sometimes say NO and mean it all the way down" to the most extreme form of punishment used throughout human history?

I raise this point not to try to put words in your mouth as much as to try to explain that I believe everyone --- both supporters and opponents of the death penalty --- have some lines they just do not think should be crossed with respect to punishment. For most in the US (but not all in other places in the world), that line is drawn before we get to intentional torture of the defendant. For many in the US (but not most), that line is drawn before we get to intentional killing.

"Would you encourage us, Bill, to also have 'National Conversation' to allow the death penalty to be administered in public and painful way?"

I'll be sure to let you know when I do.

"I personally do not view mere a 'painless and private death' to be a 'fitting justice for this atrocity.' Do you? What arguments do you think justify having the death penalty administered in a painless way?"

The Eighth Amendment. Not that the Eighth Amendment requires a painless execution. It requires, as you know, the avoidance of a substantial likelihood of severe pain.

Now that I have given my answer, I have a question: When should I look for your post on SL&P asking whether the Charleston massacre should give abolitionists pause about insisting, facts be damned, that there is never, ever a just case for imposition of the death penalty?

P.S. Virtually no one, and certainly no serious person in current policy debates, believes that we should draw the line "before we get to intentional killing." I have yet to find a person who does not believe in intentional killing in necessary self-defense, or in a just war. The question is what justification we should have before intentionally killing, not whether it should ever be done.

Eager to please, Bill, I will ask whatever question you think is worth asking at SL&P. Here, subject to your suggested modification, is what I would be inclined to post at SL&P:

TITLE: Can any "sensate person" be categorically against the death penalty for Dylann Roof?

BODY: Bill Otis at Crime & Consequences here contends that "no sensate person could (or, I suspect, does) think that a jail term, no matter its length, is fitting justice for this atrocity." I believe Bill view it as morally impossible to argue, as abolitionists necessarily must, that a punishment short of death is a just outcome for Dylann Roof. What say you, readers?


Please let me know if that what you are hoping to see me ask/discussat SL&P --- where, as I think you have seen, I have already made a case for BOTH the feds and SC to pursue a capital prosecution.

---

On your other fronts, I struggle to understand --- from an originalist or a textualist perspective --- how you interpret the Eighth Amendment to require "avoidance of a substantial likelihood of severe pain." If that is truly what the Eighth Amendment demands, Justice Kennedy may be right that the Amendment completely precludes solitary confinement.

The Framers, who seemed to be okay with hanging, poisoning, whipping and ducking, castration and maiming (all before modern anesthesia), likely did not consider punishments that included "substantial likelihood of severe pain" to be "cruel and unusual." From a modern textual perspective, I tend to agree because there are lots of state-endorsed activities that include the "substantial likelihood of severe pain" such as going to war in an active combat zone.

You raise a good point that most everyone --- save the hard-core pacivists --- is okay with intentional killing in necessary self-defense. But then again, I suppose I could say the same thing about intentional torture: I would readiyl defend someone who intentially tortured someone, say Ariel Castro or Roof, as a means to necessary self-defense. And key there, of course, is both the words "necessary" and "self-defense." Abolistionists believe, at least as I have heard them, that the death penalty is not necesary or a form of self defense in a world with LWOP. (In contrast, because I see LWOP as more akin to intentional torture, I am eager to assert that is not necessary, especially if we have the death penalty.)

Long story short, and as you know, abolitionists are eager to use the same argument against the painless death penalty that you use against a painful death penalty: the Eighth Amendment, in modern times, should be interpretted to preclude use of a punishment common in the past (and in some other nations) but no longer in keeping with modern Western values about what is uncivilized.

In the end, Bill, my point is not to defend the abolitionist anti-death penalty position (with which I disagree on many fronts). My point is that, in my view, the argument for caterorically abolishing torture in modern times is comparable to the argument for caterorically abolishing the death penalty in modern time. So if you cannot understand the categorical view on the death penalty as (misguided) punishment, I want you to better explain how you make sense of a categorical view on torture as (misguided) punishment. (For the record, I struggle with this issue personally as part of my own disaffinity for the categorical view on the death penalty as (misguided) punishment, and thus I am genuinely interested in your view going beyond an ipse dixit reference to a questionable view of the Eighth Amendment.

I'm confused about what exactly you think the media isn't doing. I've seen many, many stories about the death penalty in this case, including this story about whether the wishes of the victims' families should be considered. A quick Google search for "Dylann Roof" and "death penalty" returns about 6 million results. What kind of "call for such a national conversation" are you looking for?

- Victor

Doug --

Since SL&P is your blog, you are of course entitled to ask any question you wish. If you choose to ask a question about this, and I were asked to word such a question, it would be in exactly the words I used here: Should the Charleston massacre give abolitionists pause about insisting, facts be damned, that there is never, ever a just case for imposition of the death penalty?

Not that I would expect anything like a thoughtful answer. Once a person has decided that facts don't count, there is precious little reason to believe that they're going to change. (This is to put to one side the question whether most of your current group of commenters is capable of giving a thoughtful answer to anything).

Indeed, it's no longer surprising that abolitionists are PROUD of themselves for ignoring facts. In any other context, they would be hooted offstage as halfwits, but in this one, it makes them "principled." Their opponents, meanwhile -- the ones who DO consider the facts of the case in deciding punishment -- are "barbaric."

Doug --

The remainder of your comment is one you best sum up with this: " My point is that, in my view, the argument for caterorically abolishing torture in modern times is comparable to the argument for caterorically abolishing the death penalty in modern time."

Just so. And I am "comparable" to LeBron James as a basketball player. We have both scored points and gathered rebounds.

I think you have just set the record for rhetorical mileage obtained from the word "comparable."

"What kind of 'call for such a national conversation' are you looking for?"

The kind of call you talk all around but never specify or link.

To be specific, an editorial in the NYT, WaPo, LAT, Christian Science Monitor, CNN, MSNBC, Time, Newsweek, Atlantic, New Republic, the Nation, or other such major reigning outlet that seriously asks whether abolitionists have grounds to re-consider their position in light of the damage and suffering brought about by this 21st Century-style mass lynching.

"...death penalty to be administered in public and painful way..."

I cannot envision any possible reason to suggest such, except to taint the DP issue with disgust and revulsion at the possibility of a public execution. I fail to understand your claim that somehow, there is a link between the rationale for torture (the common definition) and the DP, or at least, the similar rationale for the abolishment of both. There is both a moral and practical argument for the DP. You may disagree, but the argument can be reasonably made. I am at a loss, however, to grasp any such argument for corporal punishment or torture - as commonly defined - as civil punishment. I am unaware even of such being offered by anyone. (BTW, I would not call LWOP "torture", thus the disclaimers).

Personally, I wouldn't care if there were unintentional (call it 'collateral') pain or discomfort involved in the administration of any particular DP. But considering the ease of general anesthesia, there is no practical reason not to make the DP painless, and there are legal issues suggesting it should be so. So, why not allow it to be painless? Is your objection moral? Legal? Or tactical, with an eye toward forcing people to see the results of the choice?

Bill, you seem more eager to make light of my questions about how you (or anyone else) would "insist, facts be damned, that there is never, ever a just case for imposition of" torture as punishment. Let me try again to explain my understanding of the categorical abolitionist view and why it can make sense on the same terms for both torture as punishment and death as punsihment:

A sensate person could readily assert no punishment really could ever balance the scales of justice given the "damage and suffering brought about by this 21st Century-style mass lynching." Consequently, the punishment we impose necessarily serves as a statement about the kind of civil society we aspire to be. I surmise most Americans (but not all elsewhere in the world) believe we ought not use torture to punish because it makes us less civilized as a society. Similarly, I surmise some Americans (but not most) believe we ought not use death to punish Roof because it would make us less civilized as a society.

I do not think this is at all a stretch, and I guess the simple way for me to seek you to engage is to ask a variation of the question you posed: Has the Charleston massacre given you pause about the notion that, facts be damned, there is never, ever a just case for imposition of torture as punishment?

Yahoo commentator: I agree 100% that there are "moral and practical argument(s) for the DP." But civilized western societies for most of human history and many modern non-western society continue have embraced "moral and practical argument(s) for" corporal punishment and torture as punishment. Let me explain trying to use your terminology:

1. The "moral" argument for any physical punishment can be based in "eye for an eye" retributivist justice: a criminal who tortures and kills ought to suffer, in order to balance the scales, a punishment of similar torture before death. I presume it was this moral precept of justice that prompted Thomas Jefferson to advocate for this punishment scheme: "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."

Notably, a number of family members of brutally murdered victims has been heard to comment and complain after watching an execution that they saw it as much too peaceful. Among other inequities, a planned, private painless execution is, in most cases, a much nicer/easier way to die than how the average murder victim dies.

2. The "practical" argument for any physical punishment can be based on general and/or specific deterrence. Throughout most of human history, executions were designed to be public and painful so as to ensure others tempted to commit a capital offense would see (and perhaps emotionally feel) the consequences of a misdeed.

Please understand, I am not asserting or suggesting that these "moral and practical arguments" for severe physical punishments are necessarily convincing. But they strike me as quite parallel to common "moral and practical arguments" for capital punishment. More to the point, if one does not find these kinds of arguments satisfactory to justify torture as punishment, I think one should at least understand how others many not find these kinds of arguments satisfactory to justify death as punishment.

1. "Bill, you seem more eager to make light of my questions..."

Not so much, but I was indeed eager to illustrate how little saying Argument A is "comparable" to Argument B tells us anything substantive about either.

2. Now let me do something rare in the Internet world -- give a yes-or-no answer. You ask: "Has the Charleston massacre given you pause about the notion that, facts be damned, there is never, ever a just case for imposition of torture as punishment?"

No.

The Eighth Amendment is still the law, and, according to sources more authoritative than Ohio State or Georgetown law schools, the Eighth Amendment forbids wanton infliction of pain.

I know that among the avant garde, citing actual law (at least American law) is considered sooooooooo yesterday, but I have never laid claim to being among the avant garde. I will leave that to Columbia faculty members like Kathy Boudin, if she's back from her latest heist.

For me, bedrock Constitutional prohibitions are conclusive.

3. Since America is founded, as you have often said, to promote liberty and freedom for all, why is ANY period of imprisonment justified, ever? You have said that you would limit incarceration to 20 years. Why not 19? 15? 10? Or more the point, 0? How are you drawing the line? Doesn't your baseline principle of liberty commit you to the extreme form of the argument?

It doesn't, you say? Only a child would think that? There are competing values, traditional constraints and limiting principles? Liberty is very important, but not everything?

BINGO!!!

The annoying thing is that you full well see this in the DP v. torture debate -- just as you see it in the extent-of-incarceration debate -- but seem to want to pretend that you don't.

Since I know that you do, however, it would be a waste of my time, and yours, to occupy more bandwidth with it.

Bill, I am not sure any period of imprisonment should be deemed jusified in the US --- which Lincoln called a "nation conceived in liberty" --- unless and until it is clear that a valid state interest cannot be achieved by other means that do not deprive liberty so completely. There are competing values, but I see our Framers and the Founding document to place for this nation as placing freedom and liberty as the clear first/most important value when judging the application and justification for state powers. This is why I love quoting Patrick Henry, who famously suggested that at least one Framer viewed human liberty as even more important value than even human life.

This (quirky? misguided? silly?) personal view of our Constitution placing freedom and liberty as the clear first/most important value when judging the application and justification for state powers accounts for my constitutional perspective on the topics we are discussing here. This is why I generally view LWOP as punishment to be more constitutionally suspect, from an originalist and textualist Eighth Amendment perspective, than death as punishment. It is also why I generally view 10 years in prison as punishment to be more constitutionally suspect, from an originalist and textualist Eighth Amendment perspective, than 10 lashes with a whip or ducking.

Of course, as you note, most (activist?) Supreme Court justices have now interpreted the Eighth Amendment's prohibition on cruel and unusual to have "evolved" to mean in modern times that wanton infliction of pain is no longer a constitutional punishment. I keep asking Kent (or you) to give me an originalist account of the Eighth Amendment because, at least as I read historical sources, the Framers and ratifiers did not consider the intentional infliction of pain as punishemnt to be cruel (and it certainly was not then unusual). And, not just as a constitutional matter but as a policy matter, I would like states in modern times to be at least able to consider/explore whether some physical punishments might prove to be more efficient and effective and just than imprisonment in some settings. (This is also why I generally favor exploration in modern times of shaming punishments and economic punishment: I think they might prove, if states have room to experiment, to be more more efficient and effective and just than imprisonment in some settings.)

I surmise that you accept the idea touted by most (but not all) modern Justices that the Eighth Amendment evolves to keep up with the modern (liberal?) feelings of western societies, and also accept that this modern evolution now precludes some (many? all?) physical punishments. (I also sense, though, that you are disdainful of those who believe (sincerely?) that the Eighth Amendment should now be interpreted to have evolved even further in light of western beliefs to make death no longer a constitutional punishment.) But though this modern (activist?) Supreme Court interpretation of the Eighth Amendment is "very important", it is plainly "not everything" when we are discussing fundamental constitutional principles or arguments about, in your words, "what punishment fits the enormous damage the massacre brought about."

Doug --

Thank you for that thoughtful answer.

One of the painful lessons of adult life is that purist thinking, though seductive, doesn't work. When I was in the eighth grade, I thought Ayn Rand had it all figured out. I would sum up the difference between Sen. Paul and me as that I then reluctantly grew up and he didn't.

It is for this reason that I am not a pure Originalist, although Originalism commands more respect from me than any other theory of constitutional interpretation, certainly including the "it-means-whatever-I-want-today" theory of Earl Warren et al.

Blogs are a limited tool, which is one reason they proceed by discrete entries (and sometimes even discreet entries). The limited point of the present entry is not to present a course in constitutional interpretation. It is to ask what has happened to the otherwise ubiquitous call for the "national conversation" in the face of a major news event.

When Darren Wilson was falsely accused of a shoot-in-the-back murder of an "unarmed teenager," the sky was black with cris-crossing academic papers calling for a "national conversation" about the (as it turns out in that instance, non-existent) racism in policing.

Now that we have (yet another) grotesque mass murder, this one actually having poisonous racial underpinnings, I was just wondering why the Left suddenly clams up about the "national conversation" we should be having about the DP -- specifically, whether these new facts might produce even a smidgen of changed thinking among the You-People-Are-Barbarians crowd that, in any other context, congratulate themselves on how nuanced and flexible their thinking is.

I guess, when a Leftist canard comes into question, the need for a "national conversation" dries up.

I still do not really know what the aptly described canard "national conversation" means but it sort of appears there is one on the largely irrelevant issues of the Confederate battle flag. Personally, I could care less what flag states I don't live in fly over state buildings or what emblems are on their license plates.

As to the topic at hand, the death penalty, it is hard to see what there is to converse about in this case. Some guy kills 9 people at a church. Seems like a pretty easy case to me, or perhaps a very short conversation.


My guess is the great majority of the country thinks the same thing.

If we're going to discuss historical civil punishment in the U S, then I don't think the "eye for an eye" model has ever been codified or used, except save perhaps in communities which had no organized governmental systems in place. True, prior to perhaps the beginning of the 19th Century, most punishment for crimes was either corporal or pecuniary, and jails as places of imprisonment (not pre-trial) were rare. But the idea of inflicting similar damage to that of the offense was never a part of American criminal justice.
And aside from that little trip into history, who cares? We're referring to today. Institutionalizing someone as retribution for wrongs done in violation of society's norms is sufficient for most crimes. The logic of an equal harm returned to the violator makes no sense, especially for property crimes. Shall we steal the suspect's auto, if he makes his living stealing others' cars? Suppose he has no car of his own. This is just foolish. Denying one freedom, while simultaneously removing their ability to continue to victimize those who choose to obey the rules seems like the perfect blend of punishment and practicality. I hesitate to speculate on how we would follow that similar-harm model in a case of sexual battery, BTW.
I don't know that deterrence is so much effected by the brutality of an act, as it is by the inevitability and certainty (a cliche but nonetheless true) of the act. In my personal experience, criminal offenders were certainly influenced by the likelihood of - not apprehension but - conviction and sentence.
As for families of murder victims being less than satisfied with the current DP regime, I frankly doubt that, insofar as it concerns the actual mechanics. I think they would be satisfied with any process that occurs within the life span of the survivors. Emotionally, who has not, at one time or another, expressed some view that the DP is not good enough for some person or class of violator? But these are not meant to be, and should not be considered as such, genuine expressions of how the system should work. An outburst about, say, genocide or infanticide, is not really intended to describe a reasoned opinion on the DP in the States.
And I will not even try to add to the comments of the 8A and the strictures therein in other posts. I couldn't do them justice and I agree comepltely with them.

As for families of murder victims being less than satisfied with the current DP regime, I frankly doubt that, insofar as it concerns the actual mechanics. I think they would be satisfied with any process that occurs within the life span of the survivors.

That is most definitely not true for my clients, and I suspect it is not true for the vast majority of the families in these cases. Where there is no doubt of the identity of the perpetrator (which is true in the vast majority of capital cases), there is no reason that review can't be concluded in a time frame of five years or so.

BTW, please adopt a "handle" and "sign" your comments in the text, so all can see which comments come from the same person. Thanks.

I was being sarcastic re: the "life span" comment, because in so many cases, family members predecease the defendant. I am not usually accused of subtlety, so I'll cop to a lack of clarity and a poor sense of humor. My point remains, though, that survivors would be satisfied with a completed verdict within a reasonable number of years, and emotional venting aside, I not not think there is some groundswell of opinion for prolonged or afflicted executions, done in public for some satisfaction of the family. This in response to another post suggesting there is some genuine desire among families for the Biblical recourse or for something more than current protocols.

JCC

I agree that all the talk of barbaric executions is a diversion to whatever extent it's not a smear. The reality is that we strive, almost always successfully, for executions as pain-free as we can get them. The real problem is not bloodlust, as abolitionists falsely maintain. It's that years of manufactured procedural roadblocks are thrown up in the way of carrying out a legal sentence.

"My point remains, though, that survivors would be satisfied with a completed verdict within a reasonable number of years...." If by "reasonable" you mean less than six from sentence to execution (e.g., the D.C. Sniper), then I agree.

"This in response to another post suggesting there is some genuine desire among families for the Biblical recourse or for something more than current protocols." Not sure which post you are referring to. I have certainly not suggested that. The families I have worked with simply want the sentence carried out and have expressed no interest in the method being prolonged or painful.

I was replying to commenter Berman's post, quoting: "Notably, a number of family members of brutally murdered victims has been heard to comment and complain after watching an execution that they saw it as much too peaceful."

I disagree with both the accuracy and implications of his statement (respectfully). I cannot remember ever hearing a serious suggestion for an execution mechanism that involves anything more (or less) than, in effect, general anesthesia for the guest of honor prior to stopping functions of life. Suggestion we discuss protocols other than this simply invite, rightly, comparisons to barbarism and the like, and detract from the conversation we should be having.

I'll repeat myself, though. Personally, if the subject of a legally-sanctioned execution suffers some unintentional but unavoidable discomfort during the process, I couldn't care less. But I think we can eliminate any such discomfort, and thus avoid this entire line of objection to the DP.

Okay, JCC, thanks for the clarification. I would not doubt that some make comments like that after an execution, but that is not the same thing as actually proposing that we intentionally make executions more painful.

I agree on avoiding the entire line of objection. Eliminating litigation and delay by accepting the method the anti side and their experts said was so much better (see Justice Stevens' dissent in Gomez v. US Dist Ct) was a big part of why we adopted lethal injection in the first place. It worked for a while.

Thank you for the cite.

The dissent has a short history of the USSC's decisions on the 8A which would seem to foreclose most of poster Berman's argument far better than I could, an argument which seemed more of a (intentional?) distraction anyway.

JCC

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