The Texas Forensic Science Commission was preparing to review the evidence that led to the conviction of Cameron Todd Willingham, who was executed in 2004 for the alleged arson and murder of his own children. This New Yorker article makes a persuasive case that Wilingham was innocent, and convicted on the basis of highly questionable forensic science. (The word “quackery” comes to mind.) Although serious questions had been raised about the forensic evidence upon which Willingham was convicted prior to his execution, Gov. Perry denied a requested stay.
The commission was scheduled to meet tomorrow to review the Willingham case — emphasis on “was.” As the Dallas Morning News reports, Texas Governor Rick Perry’s suddenly decided to replace three commissioners this week, each of whose terms had expired several weeks ago. The commission’s new chairman canceled the hearing, citing lack of time to prepare, and has not committed to rescheduling an examination of the Willingham case.
loki13 says:
There’s a quick answer to the question you posed:
Yes.
*If* they meet, it will be after the senate race.
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October 1, 2009, 1:23 pmkrs says:
Do we have any other information besides what’s in the DMN article?
The commissioners’ terms had apparently expired weeks ago, which is odd. Perry had to either reappoint them or replace them pronto, or there would be this flaw with the commission.
If Perry didn’t want to reappoint those people for reasons independent of the arson investigation, then it’s very odd to suggest that he had some obligation to reappoint them because of this arson investigation. The only reason this is “sudden” is that the commissioners’ terms had already expired.
I see no indication in the article that the new commissioners are political cronies or on the record as skeptics of “fire science.” Nor do I see any indication that the new commissioners are not going to want to hear from Beyler.
Unless there’s more information out there than what’s in the news article, it seems to me to be irresponsible at this point to suggest that Perry’s engaged in a coverup.
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October 1, 2009, 1:31 pmloki13 says:
krs–
Well, sure, that’s one reading. Here’s another.
Governor Perry is running for Senator in March.
The terms officially ended Sept. 1st
The committee members asked for, and expected to get, reassigned since they were still working on the case.
Instead of doing it on, or near, Sept. 1st, Perry waited until Sept. 30th, three days before the crucial testimony of the nationally-known fire expert who produced the report.
He then appointed as new chairman, “Williamson County District Attorney John Bradley . . . considered one of the most conservative, hard-line prosecutors in Texas.”
The new chairman, of course, cancelled the hearing because there was no time to review the file (or get the needed recommendation for the third committee member).
Do you think Perry knew this? I’m sure he didn’t want it released that he executed an innocent man before the election. Had he replaced the committee on Sept. 1st, the new members would have time for the hearing. If he waited until after this, it would be too late. But now? Just right.
I’m not saying he did it on purpose. But the timing is odd, and he certainly knew about how this would affect his political future.
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October 1, 2009, 1:43 pmChrisTS says:
Krs:
It may be premature to shout ‘cover up,’ but the Governor’s failure to reappoint the members or appoint new ones in time for the scheduled meetings is odd.
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October 1, 2009, 1:44 pmbyomtov says:
It may be premature to shout ‘cover up,’
No. It’s not.
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October 1, 2009, 1:49 pmJames T. Carrington says:
Just because his appointment power means that he is allowed to hire / fire / appoint / make chairman /etc does not mean that people should not question his decisions and ask for explanations. Nothing wrong with asking about that exercise of gov power, considering the commission is working on a case where Perry was directly involved in use of some of his other powers of life and death as Gov...
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October 1, 2009, 1:52 pmTatil says:
CNN also briefly made this its top headline, you may get more info there.
There were only two days before an important hearing with an investigator that has already concluded that there was not much credible evidence that there was an arson. Apparently there are two other reports making the same conclusion. Unless the governor claims the previous members were incompetent or biased, a claim he has not made, a person with a half a brain could see the allegations of a cover-up. Still, he went ahead and replaced two members and the chairman who is now non-committal about holding a hearing with that investigator. It sounds like avoiding the possible bad news was better than the cover-up allegations. I guess the commission was very likely to conclude a wrongful execution. Why would the governor prefer the cover-up allegations otherwise?
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October 1, 2009, 1:56 pmsecond history says:
Governor Perry is running for Senator in March.
Perry is running for reelection as Governor.
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October 1, 2009, 1:56 pmDan M. says:
What Senate race? Perry is running for re-election, right?
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October 1, 2009, 2:00 pmChrisTS says:
It is hard to see how anyone in TX — well, any large number of voters — would not be perfectly aware of the Willingham case and the reports of the [real] experts. Perhaps Perry thinks people will forget by the time the election comes around, but I would think any opponent could make a great deal out of this.
Perry, now, can be accused not only of not doing his job in the case of Willingham’s execution but also of trying to obscure that with this move on the commission. His only recourse would be to admit that he bungled the commission as well as the matter of Willingham’s execution. Sort of the old Nixon dilemma: incompetent, evil, or both?
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October 1, 2009, 2:03 pmloki13 says:
Gah!
My mistake. Must think before I type. I was thinking about him running against Kay Bailey Hutchinson (y’know– senator) in the March 2010 GOP primary for *Governor*.
So I stand corrected. The mind is a terrible thing to taste.... ;)
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October 1, 2009, 2:04 pmSteve says:
The confusion is that Perry’s chief adversary in the governor’s race is current Senator Kay Bailey Hutchison. The Republican primary, which is presumed to be Perry’s toughest test, will be held in March 2010.
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October 1, 2009, 2:06 pmHouston Lawyer says:
The guy’s been dead for five years now. I can see the urgency of those looking to finally have evidence that an innocent man has been executed so that they can try to undermine support for the death penalty. Personally, I hope the State of Texas does’t spend any more money on the case.
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October 1, 2009, 2:07 pmloki13 says:
Houston Lawyer,
Try and forget about the politics for a second. Heck, forget about justice (y’all in Houston are apparently not big fans). What about the man’s family and former wife? Don’t you think that they would get some peace knowing the truth? Especially the former wife?
(I’m assuming you didn’t read the article)
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October 1, 2009, 2:17 pmSteve says:
I think Houston Lawyer had a point. They didn’t make much of an effort to figure out if he was innocent before they executed him, so why start now?
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October 1, 2009, 2:18 pmfirst history says:
Given the junk science that has been admitted to courtrooms across the nation, this result is not surprising. This may be the only case we know about whereby an innocent man may have been executed, but others may exist throughout history. Once someone is sentenced, evidence may be lost or destroyed, particularly when a defendant is executed. Not only in arson investigations, but most of forensic science has not been scientifically validated. Even more ominously, even DNA evidence can be faked:
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October 1, 2009, 2:20 pmloki13 says:
Two things:
1. Whether he was factually innocent or not doesn’t really do much for the death penalty debate. For example, I am agains the death penalty for my own reasons. But guess what– we allow all sorts of things that we *know* cause unwarranted death due to their utility for other reasons. Is this a big deal? Yes. Is this the end of the debate? Not even close.
2. As a followup, I think this serves as a nice counterpoint to the Roman Polanski case. Justice might be delayed... long delayed, but it will come. I find Houston Lawyer’s cavalier attitude disgusting. It’s the same POV you’d get from Harvey Weinstein (“What, why are we still spending money on this?”) The man deserves justice, and his name deserves to be cleared. His family deserves to know the truth. That’s still worth something, last I heard.
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October 1, 2009, 2:21 pmjosh bornstein says:
Houston Lawyer,
Is it your position that making a determination (as to whether or not an innocent man was executed) is a bad idea in general? Or, that’s it’s a good idea, in theory; but that it’s not worth spending the money that could otherwise go to better projects?
I do agree with your conclusion–that the investigation is motivated (at least in large part) by those looking for evidence that may undermine support for the death penalty. But I guess I don’t agree that this is a bad thing. If I support the death penalty, I want to meet moral and legal opposition head-on, and want to explain why–even if there is a rare mistake made–the DP is, on balance, still a good thing. I definitely don’t want the DP critics to be able to say, “Hey, the pro-DP position is so weak, they must try to hide the truth, since public perception would change if the facts were to come out.”
In this case, there may be a perfectly reasonable reason behind Perry’s action. But from an outside’s perspective, looking in, it sure seems to stink. And I don’t see how that helps shore up support for the DP at all.
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October 1, 2009, 2:22 pmpj says:
Houston Lawyer.
What kind of a person are you?
The man’s relatives and friends still live. Their son, husband, brother, friend was killed, and Governor Perry continues to call the man a murderer of his own children. As Perry likely killed an innocent man, Perry owes the man this review.
I think Perry’s political career probably won’t take a hit either way (do republicans actually care about this stuff?)but where he ends up in the hereafter likely depends on it.
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October 1, 2009, 2:24 pmDan M. says:
loki, I agree with the idea that we should examine forensic evidence and get rid of any that isn’t scientifically verified. But to say that examining this evidence will actually clear the man’s name isn’t true. You don’t really prove that you sent an innocent man to jail unless you find the real culprit.
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October 1, 2009, 2:27 pmloki13 says:
Dan M.,
The fire was started accidentally by a space heater. You could go back and convict the space heater, but it was mostly destroyed in the fire and the remains most likely recycled in China.
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October 1, 2009, 2:30 pmDan M. says:
Well, I suppose it does prove it to those who always felt you were innocent to begin with, particularly once you invalidate crucial evidence.
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October 1, 2009, 2:31 pmDan M. says:
Oh, was there proof it was accidental? I thought there was simply discredited proof that it was intentional.
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October 1, 2009, 2:33 pmk says:
In fact, a report was generated by a highly regarded arson investigator shortly before Willingham was executed that suggested the fire was not arson. Perry declined to stay Willingham’s execution despite that report. But the investigation did not stop — my understanding is that the evidence the commission was to consider is basically a more thorough version of that earlier report (and that points to the same conclusion, namely that the original arson investigators’ conclusion that the fire was arson was unscientific at best). My understanding is also that the commission was to review the evidence because it might bear on other cases that were investigated by the same original arson investigators or using the same dubious methods. So while it would be nice to prove Willingham innocent, it might also be nice to make sure no one else dies because of faulty science.
Read the New Yorker article.
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October 1, 2009, 2:39 pmkrs says:
It may well be a coverup, or at least an attempt to delay the worst of it until a more politically convenient time, but I don’t see it yet. I’m also not sure where the suggestion comes from that the commissioners had a reasonable expectation of being reappointed. Yes, they have an important matter that they’re currently working on, but the same is true of many high-level bureaucrats that get replaced.
And Mr. Carrington, I’m not suggesting that people shouldn’t question Gov. Perry about this. I hope the press pushes him for an explanation of why he replaced the commissioners and why he chose the timing he did.
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October 1, 2009, 2:45 pmA.S. says:
“each of whose terms had expired several weeks ago”
The accusation that Perry is “covering up” is based on the fact that Perry appointed the new commissioners at the end of September instead of the beginning? Really???
So, what, if he appointed the new commissioners at, what, September 15, he would only be half “covering up”?
This appears to me to be a moronic argument by those making the accusation. The only people who would ever make such an argument are people who have an axe to grind.
(Not to mentioned that the very fact that the article purporting to show the executed man is innocent is in the New Yorker, of all places, makes it highly suspect.)
Let’s see (a) whether a credible source (meaning not the New Yorker) provides evidence the man was wrongly executed, and (b) whether the new commmisioners review the case.
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October 1, 2009, 2:50 pmPatHMV says:
It’s entirely appropriate to continue examining this case, as it highlights some real failures of the judicial system and “arson investigators” in admitting unreliable opinion into evidence in serious cases.
However, it’s far too early to come to a conclusion regarding this particular case in terms of Willingham’s actual innocence. The subsequent reports from more thorough research make it quite clear that the opinion evidence of the arson investigators should never have been admitted. However, from what I’ve seen of that subsequent research, it does NOT say that the fire was not arson. It merely says, from everything I’ve understood thus far, that the burn patterns and the like were, essentially, equally consistent with an accidental fire as with arson. They don’t conclude that the fire was accidental, just that the forensic evidence is consistent with either.
Were that the only evidence, that would certainly be enough to require his acquittal; tie goes to the defendant. But if we’re trying to determine not just whether the evidence was legally sufficient to convict him but also whether he did, in fact, burn his family to death, then the burn pattern evidence does not do that.
The case also presents other interesting issues, especially regarding the memory of eye witnesses and the effect that repeated questioning and the passage of time have on memories. Some of the allegations are that witnesses who allegedly at the scene said Willingham had to be held back from rushing back into the house later said that he acted cold, that he was more focused on protecting his car, that he did not appear to be a man in the process of watching his children die.
The single most troubling fact about Willingham’s actions for me, however, is that according to his own testimony, he was awakened by his small daughter... but she never made it out of the house with him. They got separated on the way out of the house, he said, and he lost her in the smoke. I simply cannot fathom any father who, awoken by a young child with the house on fire, would not carry that child tightly in his arms until they had reached safety.
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October 1, 2009, 2:57 pmfirst history says:
Of course, even if he was demonstrably innocent his execution would have been legal under Herrera v. Collins 506 US 290 (1996), another death penalty case originating from Texas (what a shock!)
Justice Scalia said in a concurring opinion:
We may have reached that embarrassing moment.
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October 1, 2009, 3:06 pmChrisTS says:
The first genuine expert (cannot recall his name) was very clear that this was not an arson fire.
The New Yorker story also addresses changes in the witnesses ‘impressions’ after Willingham was charged. And, I believe, he said all along that his daughter ran ahead of him, as he told her to, towards the front door while he went in search of the other children.
One could look at the materials from the Innocence Project, assuming that is not also disparaged out of hand as a source.
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October 1, 2009, 3:07 pmjosh bornstein says:
Pat,
Your point is reasonable, but it shows that (thank God) you have never been in that situation. I was. When I was with my niece in S. Africa, years ago, there was a night-time fire in a cabin in a game preserve. I grabbed her and tried to find my way to the door. But since the smoke was so thick, I had to drop to the ground. And Marisa–being understandably terrified–twisted out of my arm and disappeared into the smoke. Fortunately, she was between me and the door, and I was able to follow her out, keeping her in sight. But I can totally see how a father might lose control of a child, no matter how tightly her was gripping her. I don’t know the facts of the above case at all. Did the father have more than one child? If so, then of course there’s another perfectly reasonable explanation (ie, that he lost one child, and he was faced with a Sophie’s Choice decision on trying to find that child, or, try to locate the other child(ren)). That may apply in this case; it may not.
For all I know; the guy was indeed guilty. I wasn’t there. But the larger point (about the DP in general) is that most people think that it should be reserved for cases where there is no reasonable doubt about the accused person’s guilt, and that does not seem to apply in this case.
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October 1, 2009, 3:10 pmfirst history says:
I don’t think The New Yorker “provided” any evidence, it merely reports on evidence developed by others.
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October 1, 2009, 3:15 pmDavid Schwartz says:
While we cannot disprove every possible arson scenario, the most logical arson scenario, and the one charged, has been thoroughly disproved. That scenario would have required some accelerant in the hallway and none was found there. It’s hard to imagine how there could have been any and none was found.
This doesn’t rule out a fire started intentionally in the bedroom with no accelerant used. But that seems extremely unlikely.
I should also point out that even DNA evidence — the gold standard of forensic science — is frequently subject to statistical abuses. For example, suppose you find some marker in the DNA that only one in a million hispanics has, there is no evidence the perpetrator was Hispanic, the defendant is Hispanic, and he has this marker. What does this tell you?
Of course, it tells you essentially nothing. In fact, if the marker is very common among Caucasians, it tells you that the defendant is quite likely not the guy. But all you’ll hear the “one in a million” number.
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October 1, 2009, 3:17 pmChrisTS says:
One of the first investigative peices was done by the Chicago Tribune.
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October 1, 2009, 3:27 pmKent Scheidegger says:
No, Herrera did not hold that. The Court decided that it did not need to decide how strong a claim of actual innocence needed to be to prevent an execution, because Herrera’s claim was so weak that it would not meet any standard the court might conceivably adopt.
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October 1, 2009, 3:28 pmA.S. says:
“I don’t think The New Yorker “provided” any evidence, it merely reports on evidence developed by others.”
The New Yorker regularly publishes articles by Seymour Hersh, so its “reporting” is completely worthless.
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October 1, 2009, 3:32 pmChrisTS says:
oops: pieces
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October 1, 2009, 3:32 pmChrisTS says:
So, because a magazine publishes articles by someone with whom you disagree, nothing in that magazine will ever be of value? Such a principle must radically minimize the list of sources to which one is willing to look.
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October 1, 2009, 3:36 pmfirst history says:
I do have misgivings about Hersh’s reliance on unnamed sources and “informed” speculation, however this article does provide direct quotes and citations. A very different kind of reporting.
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October 1, 2009, 3:42 pmbyomtov says:
A.S.,
Read the article. Then get back to us.
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October 1, 2009, 4:14 pmPatHMV says:
ChrisTS... I’ve read the Project Innocence report. I find it, as I indicated, that it raises very troublesome issues, but I don’t consider it 100% dispositive. It provides some explanations for some issues, such as the refrigerator blocking the door, but they’re not all terribly convincing. Also, the issue related to the allegedly shifting tone of the witness statements is not dispositive, in my view, because a lot of that is really based on tone and impression, and that’s just murky all the way around. Just as the witnesses statements at trial may have been influenced by the repeated questioning and the assumption, by that point, that he was guilty, likewise their impressions today may be colored in the opposite direction by the knowledge that the forensic conclusions had been undermined.
As to the arson, the reports (and it’s been a couple of weeks since I read them, so I’m open to being corrected on the details) did talk about some tests not finding the presence of accelerants in some places, but those tests all rely, of course, on the evidence-gathering of the people who made t.he flawed original conclusions. Moreover, the lack of accelerants is not proof that no arson occurred. It is possible to commit arson without the use of accelerants.
Look, based on the research in the Project Innocence report, I agree that the guy should not have been convicted. It is distressing that the governor and the Texas pardon board was unwilling to look more closely at the reports undermining the forensic testimony. But that’s different from determining whether, as a matter of fact rather than law, he killed his family.
Oh, and the author of the New Yorker piece completely destroyed the credibility of his reporting by selectively quoting Willingham’s last words, omitting (without noting the omission) of his final, vile curses towards his ex-wife.
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October 1, 2009, 4:59 pmloki13 says:
PatHMV,
A few points–
1. If that is the standard you set for factual innocence, then I think precious few cases of exoneration would ever come through. Suppose someone else confessed to a murder– well, they could be lying. Suppose there’s a video– it could be faked. Suppose’s your DNA isn’t the one found in the rapist’s condom... well, someone else could’ve helped you rape the person and left their DNA. Etc. What are we left with? Three pieves of evidence:
1. Forensic evidence that it was an arson.
–This is complete bunk.
2. Demeanor evidence.
–The evidence, as shown, was differently interpreted before he was a suspect to after he was a arrested, assuming you put much stock to demeanor evidence.
3. A “jailhouse confession” to a crazy person who got a (undisclosed)0 deal and then (kinda) recanted, and one to which Willingham never admitted. Also, the confession was incosistent with other evidence (no evidence of physical abuse of the girls by the wife).
You’re left with 3.
As for the last words– I did not know of them until you pointed them out. The writer of the New Yorker article did a disservice by not including them in the article. In th article, it is noted that after supporting the husband, she now believed he was guilty. While I do not condone what he said, I can understand his frustration in not being believed. I think that the inclusion of this would have added some more nuance to the issue– he wasn’t a saint, and instead of going gracefully, he used his last opportunity to lash out at those he thought deserted him.
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October 1, 2009, 5:17 pmwolfefan says:
I have read A.S.‘s comments published here on The Volokh Conspiracy. I agree with his standard; they render all comments published here by any commenter in the past or in the future entirely worthless.
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October 1, 2009, 5:19 pmfrankcross says:
PathHMV, I agree that a retrospective analysis shouldn’t need to meet a beyond a reasonable doubt evidentiary test for proof of guilt. But you seem reject even a preponderance of the evidence test. You want a 100% certainty test? You seem to think the mere possibility of guilt justifies the verdict. Is there any rational argument for such a standard?
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October 1, 2009, 5:29 pmDavid Schwartz says:
I think the point is that we don’t yet have a case where someone was executed though indisputably factually innocent — innocent beyond a reasonable doubt. However, we definitely have a case where Texas executed someone for a crime that there is absolutely no rational reason to think he committed.
It is fully as bad as executing a man solely because his wife was killed with no evidence whatsoever that he had killed her (nor any solid evidence that he did not). In fact, it’s worse than that, because we know that the Prosecution’s theory of the Willingham case is in fact *refuted* by evidence, not just unsupported. So you have to suppose he did it some other way than the way the Prosecution alleged.
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October 1, 2009, 5:42 pmloki13 says:
David Schwartz,
I would add to that. My understanding is that there was no motive for the crimes. IOW, there was no insurance policy for him, no history of physical or sexual abuse, no testimony from his wife as to why he might want to kill them, no “other woman”.
So the entire basis for the beginning of the belief that there was even a crime was that there was arson, a finding which is now conclusively disproven. (I should note that PatHMV is correct; theoretically, it is possible that he cleverly did with no accelerant and mimiced an actual fire). Anyway... this all makes me very sad. I don’t think Willingham was a model person, but I also cannot imagine the hell of having everyone you know turn against you and believe that you killed *your own children* based on junk science.
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October 1, 2009, 5:52 pmbyomtov says:
I think the point is that we don’t yet have a case where someone was executed though indisputably factually innocent — innocent beyond a reasonable doubt. However, we definitely have a case where Texas executed someone for a crime that there is absolutely no rational reason to think he committed.
No. The point is that Texas executed an innocent man. One small benefit, hardly adequate, is that now all those, like Scalia, who claim that this could never happen have to shut up, don’t they?
The distinction you are making is worthless. The real evidence, as opposed to that presented at trial, says Willingham was innocent. The prosecution’s case was BS. Perry didn’t give a s**t. It happened. That’s the story. Twist and turn and rationalize all you want, you can’t change that.
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October 1, 2009, 6:05 pmSplunge says:
Some interesting lessons here:
(1) Don’t be an antisocial jerk — steal cars, drink and swear in front of the neighbors, get tats people find unpleasant to see. Someday these folks may be sitting on a jury deciding whether you should be put to death.
(2) If your house catches on fire and your children are in it, come out carrying them or don’t come out at all. (I suspect this is superfluous advice for most fathers, however.)
(3) If your children are going to die anywhere near you, be sure to be born female. (Contrast Willingham’s unforgiving fate with that of Andrea Yates, the Texas mother who admitted to drowning her 5 young children, one by one, in the bathtub.)
(4) If you sit on a jury, apply a great deal of skepticism to “expert” testimony. Keep in mind the sure-fire ironclad 100% solid “science” of today may well be the discredited phlogiston garbage of tomorrow.
I have mixed feelings about the death penalty. I certainly do not disapprove of it on ethical grounds for the factually guilty. I personally would approve if, under certain absolutely clear circumstances, the police were authorized by the governor to take no prisoners when hunting down a guilty man. I would (for example) have no problem personally operating the guillotine if Andrea Yates had her head put into it.
On the other hand, my faith in the ability of the justice system to adjudge a man correctly guilty or innocent is low, and gets lower with each exposure I have to it. It seems appalling to allow a bunch of preening clowns to have a man killed.
But on the gripping hand, it isn’t much less inhuman to lock a man away in a cell for the rest of his natural life, like an animal, to look forward only to the occasional bout of ass-rape when he falls afoul of some jungle law, and the public attention given to the possibility of wrongly doing so is far less than the public attention given to the possibility of wrongly injecting someone with lethal poison.
That is, probably the only way the State of Texas would take a long, hard, productive look at the quality of their forensic arson science is if there was the possibility that someone had been wrongly executed by virtue of it. If the only possibility was that someone had been wrongly sentenced to, say, 20 years in prison, I doubt there’d be the same kind of motivation to get it right. And yet, getting it right is important. It’s a sad tragedy if one innocent man was wrongly executed, but it’s also a tragedy, and perhaps even a larger one, if a hundred innocent men are wrongly imprisoned for decades.
So perhaps we should keep the death penalty, because the very horror of its wrongful application to the innocent serves to seriously motivate the improvement of the judicial apparatus for judging guilt and innocence.
Perhaps the death penalty is like the atomic bomb. No one likes its existence, and we thrash around trying to figure out some way to turn our world into a world where it would not need to exist; but, on the other hand, the very horror of the weapon has served, like no amount of sentimental preaching ever could, to seriously motivate modern nations to find alternatives to war.
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October 1, 2009, 6:15 pmloki13 says:
byomtov,
I don’t think this ends the debate either way (and as an aside, I am against the death penalty).
I think most people, despite their public pronouncements, realize that at some point, someone was executed wrongly. Heck, you could make the same point about life in prison– at some point, someone spent their whole life in prison for a crime they didn’t commit (and quite frankly, I think I’d rather be executed).
Anyway, it will still come down to whether, on balance, the benefits exceed the drawbacks (yes, a cost-benefit analysis from a utilitarian perspective). There are those who would argue that even *one* innocent life is too many, but those people are already against the death penalty.
To use an analogy– right now, people are dying due to inadequate health care. We could solve that, but (so far) as a society, we have determined that the costs exceed the benefits. We could all be forced to drive safer cars (lower max. speed limits, more safety features, less hp), but we don’t want to.
Until the majority of people disagree with the death penalty, it will continue to be enforced. One tragedy will not shift the balance, despite the rhetorical points it gains.
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October 1, 2009, 6:16 pmRichard Johnston says:
The Texas Department of Corrections is kind enough to provide us with a transcript of the last words of all their terminal guests. In Willingham’s case:
See http://www.tdcj.state.tx.us/stat/executedoffenders.htm
Sounds like he did cuss someone out all right. Of course if he was really innocent I could understand his being out of sorts in the moment.
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October 1, 2009, 6:21 pmMalvolio says:
Did people actually read the article?
From the article:
“Whuppings every once in a while” for that particular thing? That says to me the girl got whuppings on a regular basis.
From the article:
Yeah, that’s what I do when my children are burning to dress: make sure that I’m properly dressed for the occasion.
He was asleep and they were awake; he was dilatory about getting out of the house and they were concerned; he was comparatively unharmed and they died. I find this very very suspicious.
It’s not impossible that this guy is innocent but unless they get that space heater to confess, I going to let this guy rest in peace.
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October 1, 2009, 6:49 pmBob from Ohio says:
Convenient that the state’s expert/investigator is dead. But the fact that some experts now feel/believe/“know” it was not arson does not mean he was innocent.
Even with differing experts opinion, a jury could still have found Willingham guilty. Juries are free to reject expert testimony which is only an aid to their duty to determine fact. They can find one expert more credible than another as well.
They could have given more weight to his demeanor on the porch, he didn’t try real hard to save them until he had an audience.
BTW, since when does the “Texas Forensic Science Commission” determine guilt or innocence anyway? Doubt that is in their charter.
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October 1, 2009, 6:50 pmDuffy Pratt says:
loki 13:
Not everything comes down to cost/benefit.
Let’s suppose someone proposes a law that would give the death penalty for speeding, but only on a random basis. Say a 1 in 100 chance. Furthermore, the state could elect to have an immediate family member of the speeder executed instead of the speeder. Now, lets also suppose that it was indisputable that the number of people saved by such a law outweighed the number executed by a factor of 10. So, a law that would execute innocent children would also end up saving many, many lives. The cost/benefit could not be more clearly in favor of such a law. But would you, or anyone you know, actually favor it??? I very much doubt it.
Richard Johnston:
At that moment, I could understand his being out of sorts, innocent or not.
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October 1, 2009, 6:59 pmArthurKirkland says:
Rick Perry has exhibited the morality of untreated sewage, before and after the death of Cameron Willingham. Fortunately for his candidacy, he needs only the votes of Texas Republicans.
One more guy whose final breaths should be devoted to hoping that the God on whom his political career relied does not exist.
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October 1, 2009, 7:19 pmlawstudent says:
Several commenters on this thread have speculated about what they would do if they and their children were in the midst of a fire, as though this speculation is probative one way or the other of the man’s guilt or innocence. If people want to argue the man was guilty, fine, but this type of speculation doesn’t add much to that argument. You can’t actually know what you would do in that situation. (Aside from which, even if there were things the man could have done differently that would have helped the children get out — that doesn’t mean the fire was arson; it’s equally consistent with an accidental fire.) If it were so easy for a layperson to grab on, hold tight, and get everyone safely out of a burning house, presumably we wouldn’t need to specially train firefighters to do this.
Obviously, we would all like to think that if our house were burning down, we would do everything right in the (literal) heat of the moment, successfully save all our children, and be the hero. As commenter “josh bornstein” helpfully notes, above, without having been in that situation you can’t really understand what it’s like. I don’t presume to know what it’s like either. The arson expert who reviewed Willingham’s case specifically addresses this point; here’s the quote from the New Yorker article:
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October 1, 2009, 7:35 pmroad2serfdom says:
Duffy,
Your cost/benefit example is not exactly correct. Think about why net lives would be saved. Because people would be driving with much more than the efficent level of care. Costs such as taking forever to get places, risk averson (worry about losing the ‘lottery’), etc. need to be factored in. Cost/Benefit would probably be against your law, which might be why most people would opposed it.
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October 1, 2009, 7:39 pmChrisTS says:
lawstudent:
Thank you.
For others who — for some reason — want to think Willingham set fire to his house to kill his three little girls: read the 4–5 expert reports now available. It was not arson. Period.
Could he have been braver? Who knows. The point is that a man was villified, convicted of the worst crime a parent can imagine, spent 12 years on death row, and was executed for a crime for which there was and is no plausible evidence. Not simply that he did not committ the crime, but that there was no crime.
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October 1, 2009, 7:55 pmCornellian says:
Not to mentioned that the very fact that the article purporting to show the executed man is innocent is in the New Yorker, of all places, makes it highly suspect.
Whereas a politician running for election is the gold standard of honesty and credibility.
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October 1, 2009, 8:02 pmCornellian says:
Of course Gov. Perry is covering up. If he allowed an innocent man to be executed on his watch he’s going to have a hard time explaining why, so he’s kicking that can down the road as long as possible. It’s what politicians do.
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October 1, 2009, 8:05 pmgerbilsbite says:
The people asserting that Willingham may still have been guilty even with all the forensics to the contrary (literally ALL, by the by: every forensic argument the state relied on in their prosecution has been shown false) need to keep something in mind:
Without those disproved forensics, there’s no evidence to believe there was even a criminal act at all. This isn’t even a question of whether the wrong man was executed for a crime, but of whether or not there was a crime at all. And from a scientific, factual, rational standpoint, there was never shown to be a crime in the first place.
Arson trials especially might benefit from a bifurcated process: if the state were first required to establish that a fire was incendiary and not accidental, before they tried to establish a particular defendant set the fire, cases like this might not happen. And for those people already in prison based on now-disproved junk science like what was used to convict Willingham, appeals courts should permit the introduction of evidentiary determinations that would not have been deemed credible or admissible at the time of trial that are now accepted by the scientific community (under the same rules as newly discovered evidence is admitted).
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October 1, 2009, 9:22 pmloki13 says:
Duffy Pratt,
As pointed out, the flaw in your hypo is that it’s not a real cost-benefit analysis (or, if you’re going to be measuring or monetizing things like “happiness”, a utiilitarian analysis).
It’s certainly true that legislatures enact all sorts of laws that aren’t efficient (in the classic L&E sense). Or, to spin your example another way–
We don’t really care about speeding. If we did, there’d be higer fines, more automatic cameras, speed limiters on cars, or jail time for speeding offenses. As a society, we have decided that there is an efficient level of speeding. You apply this analysis to most crimes– what is an efficient level of prostitution? Of theft? IOW, what will society tolerate given the tradeoffs (in increased compliance costs, for example, or in decreased “freedom!” for speeders).
Meh. I’m not saying you should, or have to, view it this way. But for most people for whom the death penalty is a moral issue– it’s already decided. It’s the people who are in the middle, who don’t have truly strong opinions (well, I think really bad people like bin Laden should get ol’ Sparky, but I also don’t want to see the good guys sentenced to death like in that totally kickass Michael Bay movie I just saw.... so I guess I’m kind of for it...)
Wandering again. Just thought about Ilya and the rationally ignorant voter. :)
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October 1, 2009, 9:42 pmloki13 says:
Also, as an aside to Malvolio–
As a parent I would never condone the “whupping” of a child. However, it’s hard to say what “whuppings” every once in a while means in this context. The southern branch of my family uses this phrase for relatively innocuous physical discipline. Not my cup of tea, but certainly not physical abuse. And I just love how you manage to reach your unfounded conclusions.
Have you thought about becoming an arson investigator?
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October 1, 2009, 9:46 pmPerseus says:
And what commentators do is self-righteously carp at politicians.
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October 1, 2009, 9:57 pmzuch says:
A.S.:
OIC. Everything that Sy Hersh says is wrong ... because you don’t want to hear it. And that taint infects anyone else in contact with him. My, we have a pandemic on our hands.
Cheers,
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October 1, 2009, 10:19 pmArthurKirkland says:
Of course Gov. Perry is covering up. If he allowed an innocent man to be executed on his watch he’s going to have a hard time explaining why,
I don’t fault you for saying or believing this, because I probably have an unfair advantage in evaluating how Texas voters would respond to this information: I lived in Texas for a while.
I lived in Austin, which resembles civilization, but I ventured into the countryside periodically. Outside the UT campus, Texas has great barbecue, very good Tex-Mex food, good (Shiner) beer, just about nothing else.
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October 1, 2009, 10:21 pmSplunge says:
Obviously, we would all like to think that if our house were burning down, we would do everything right in the (literal) heat of the moment, successfully save all our children, and be the hero. As commenter “josh bornstein” helpfully notes, above, without having been in that situation you can’t really understand what it’s like.
Speak for yourself, son. I don’t think that’s true for those of us over age 45 or so. In a quarter century of adult life you often end up having to make at least one or two decisions on short notice that at least at the time seemed to be life and death decisions, or of similarly high stakes. I know I have. I would be surprised if most men my age had not. No, that’s not exactly the same as waking up with your house on fire, but having seen ourselves in situations as similarly urgent and important, I don’t think asserting we have zero basis for estimating our behaviour is reasonable.
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October 1, 2009, 10:32 pmDavid Schwartz says:
Would you advocate executing a man that you know for sure is innocent in a case where the benefits to society are enormous? (Maybe lots of people believe he is guilty and have threatened to cause all kinds of problems if he is not executed.)
If so, I think it’s self-evident that you are a moral monster. If not, then I think it’s self-evident that cost/benefit analysis have no place in questions of capital punishment.
I, in fact, believe the latter. I believe that the “harm” to a person from executing them for a crime they did not commit is simply not in any way comparable to the benefits to society of executing a guilty man. There is simply no conceivable scale on which these two things can be measured. A cost/benefit analysis presumes the costs and benefits can be measured on the same scale. I don’t see how you can do that here.
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October 2, 2009, 1:24 amBrett Bellmore says:
The problem is, we don’t get to chose between executing the innocent, or not. We get to chose between procedures which aim to execute the innocent, or not.
And procedures are ALWAYS fallible. The only procedure guaranteed to not punish the innocent, is to never punish anybody, just as the only procedure guaranteed to punish the guilty is to punish everybody.
So, all procedures are fallible. This implies that either it’s constitutional to occasionally punish the innocent, if you’re following the due procedure, or that there is NO constitutional procedure for punishing the guilty. The latter is not a choice any culture makes, and it’s certainly not the one we have chosen.
Punishing the innocent is constitutional.
That’s not to say that we’ve set the right balance between protecting the innocent, and going after the guilty. But the Constitution does not demand perfection, and that’s the point I understood Scalia to be making.
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October 2, 2009, 4:07 amSam Hall says:
Those bashing Perry for not pardoning this guy clearly don’t know Texas law. A Texas governor doesn’t have the power to pardon anybody unless the Pardon Board has first recommended a pardon.
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October 2, 2009, 4:13 amDjDiverDan says:
While I generally support the death penalty in theory, my limited experience with the Texas criminal justice system makes me believe that we need to do a lot of work to ensure that the accused gets a fair trial before putting someone to death. As this case shows, the system is really stacked against criminal defendants, most of whom are indigent (or nearly so), and cannot afford a decent lawyer, let alone the forensics experts that would have been required at trial to show that the local fire inspector’s arson conclusion was based upon bad science, and that the fire was, more probably than not, accidental. And no, any post hoc investigation now will not establish that he was innocent, but the published reports that are already out there almost certainly establish that there was more than a reasonable doubt about his guilt (indeed, a genuine doubt as to whether or not a crime was even committed). As to the political implications, while the allegations of a cover up will certainly hurt Perry in some circles, among the hard core social conservatives that are his base, I think it’s fair to assume that the prevailing attitude is “let ‘em all fry — if they are really innocent, God will take care of them”.
I will also confirm what Sam Hall pointed out — Perry had no authority to issue a Pardon in this case unless there was a Pardon recommendation from the Board — in the absence of such a recommendation (the request was made and rejected in this case), the most Perry could have done was grant a 30-day stay of execution. Given the makeup of the Texas Court of Criminal Appeals (the highest court in Texas for criminal matters) at the time, that would not have saved the condemned man. As to people like me — a libertarian conservative who will not vote for a nanny-state liberal Democrat, but really hates the direction the Republican party is going, this appears like a delay tactic or cover up by Perry, but won’t necessarily throw me into the Kay Bailey Hutchison camp — she’s proven herself too much of a corporatist Republican when, as the Senator from American Airlines, she worked very hard to prevent a total repeal of the Wright Amendment, even though the long delay in allowing Southwest to fly direct out of Love Field to farther destinations will cost Dallas fliers Billions in excessive airfares. No, I don’t particularly like Perry, but I really don’t like Hutchison, and it’s hard for me to fathom that the Texas Democratic Party will put forward a candidate that doesn’t really bother me (I’ll have to wait & see on that, but I’m not terribly optimistic).
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October 2, 2009, 5:49 amInteresting News from Elsewhere « La Flog says:
[...] Volokh Conspiracy, alerted me to a recent development. It appears Texas Governor Rick Perry is attempting to cover-up the fact that an innocent man was executed on his watch (at least until his re-election race is [...]
Steve says:
I am a committed Scalia foe, but I happen to agree that Brett Bellmore has summarized Scalia’s point accurately. Any penal system is going to end up punishing innocent people, and if you think that’s unacceptable, then we can’t have a penal system at all.
Of course, if you send someone away for life, there’s a greater chance of remedying a mistaken conviction than if you execute them. But it’s still just a chance. If you have a system where the maximum punishment is life in prison, then some innocent people are going to die in prison. Either you think that outcome is morally defensible or you don’t.
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October 2, 2009, 7:31 ambyomtov says:
Brett Bellmore has summarized Scalia’s point accurately. Any penal system is going to end up punishing innocent people, and if you think that’s unacceptable, then we can’t have a penal system at all.
Is this the point you are referring to?
…..there is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.
If so, I disagree with your statement. Scalia isn’t saying the criminal justice system can’t be perfect. He’s saying he’s not interested in newly discovered evidence.
I suppose there are commenters who are prepared to give learned disquisitions on why “due process” arguments to the contrary don’t hold. Save yourself the effort.
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October 2, 2009, 7:53 amEveryone's a Hero says:
Splunge,
I’ve got to agree with lawstudent here. All this “I would have saved my children for sure” bullshit is pretty tiresome.
And im sure you have “made some important decisions at quick notice” but really, lets be reasonable here and not claim to know exactly how we would respond in a harrowing, terrifying moment in a smoky room after being woken up mere seconds before hand.
Moreover, its certainly NOT useful to then extrapolate from this little bit of hypothetical self affirmation of our own heroism to assert that circumstances which differed from our imagined future reactions must be somehow proof, or at least reason to be suspicious, that the actual person in this situation had some sort of ulterior homicidal motivation which explains the different result.
But its your choice — keep patting yourself on your back for all your imagined bravery and derring-do. Im sure you are about to stop a bank robbery too in your imagined world, and i wouldnt want to distract you from that important task.
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October 2, 2009, 8:45 amVisiting Lawyer from Texas says:
I’ve been in a number of high stress situations. Made some good decisions, made some bad. Seen other people make worse ones (like the guy who rescued the table lamp he just bought and let everything else burn).
If you have been through fire training, part of that is they go over a number of case studies of the stupid things people do and how they need to be trained in, and to practice, proper procedures to escape a fire.
There is a large body of literature about coping with sudden emergencies and what defines the differences between the survivors and the victims.
But most people caught unprepared screw up.
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October 2, 2009, 9:43 amloki13 says:
David Schwartz,
First, do not misunderstand what I am explaining for my position (or have you missed the times when I have written that I am against the death penalty).
Second, what you are saying is not close to what we have here. It is not the case that we are just executing innocent people to make other people feel better. There is a question about how effective are our safeguards, and whether it is worth it to have the death penalty. If it’s a moral issue, then there’s no use going further. But for some, the question is– how could we change the law (and at what cost) to make sure this doesn’t happen. Try to imagine this aside from the death penatly. Right now, there are a lot more innocent people serving long (LONG) jail sentences for crimes they did not commit, and who will receive no exoneration. What is the acceptable error rate for them?
Third, in your hypo as you presented, a true utilitarian would say– yes, that would be fine, but they would also say that you didn’t measure the cost (or utility) correctly. What is the true cost/utility (to law, society, democracy, etc.) of arbitrarily executing innocent people? You’re just not accounting correctly. :)
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October 2, 2009, 10:45 amDavid Schwartz says:
Of course. The question is, on what basis do we choose those procedures. I’m saying, the one basis on which we cannot choose those procedures is a cost/benefit analysis.
The reason we can’t do that is because a cost/benefit analysis requires the costs and benefits to be measurable in a common unit. For example, if you can measure the costs and the benefits in dollars, then you can do a cost/benefit analysis.
When deciding procedures for capital punishment, they say we have to weight the cost of executing innocent people against the benefits of executing guilty ones. Some procedures will do more of the former but also more of the latter. Others will do less of the first and also less of the second.
My point is that this is an impossible basis to decide policy because these two things are incommensurable. There is no scale on which we can measure the harm to an individual of being wrongly executed against the benefit to society of executing a guilty person.
And if you say “but what basis is there other than cost/benefit?” then you have swallowed the pragmatist kool aid. We don’t use cost/benefit analysis, for example, when deciding whether to allow a newspaper to publish a story. We don’t use cost/benefit analysis when deciding whether a person should be allowed to be an engineer even though he would make a *great* doctor and society badly needs doctors.
In act, in general, we don’t use cost/benefit analyses when balancing costs to individuals against benefits to society. And we shouldn’t here either.
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October 2, 2009, 10:47 amfishbane says:
Do you also hope that California doesn’t spend any more money on Polanski? That’s, after all, been over 30 years.
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October 2, 2009, 11:03 amloki13 says:
David Schwartz,
I think you fundamentally misunderstand what is being discussed. I use the shot hand of “cost/benefit” analysis because we tend to measure things in dollars, but if you prefer, you could think of it in terms of a made of medium, such as “utils” (measures of utility). In that way, it is amenable to a cost/benefit (or utility) analysis.
The problem is not the analysis is done, but that is done incorrectly. How do you measure the utility (benfits and costs) of ephemeral things such as “the rule of law” or “due process”. Because th analysis is ften cabinned, it is done poorly.
To give you an example that you use–
In a particular instance, it might be more costly to allow a newpaper to publish a story than to suppress it. But that doesn’t take into account that cost of weakening the rule (and the transaction costs of having to litigate each particular instance in the future) that newspapers be allowed to publish stories. The overall benefit to society of a clear rule that allows newspapers to publish stories outweighs the particularized costs in a given situation.
Now, you might just disagree with the death panlty (as I do). But to say that “In general, we don’t use use cost/benefit analyses when balancing costs to individuals against benefits to society” misunderstands the evolution of the law. But you have to look at the rule, not the instance.
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October 2, 2009, 11:57 amJM says:
This comment means nothing. Either way, the burden of the state *was* to prove that he set the fire *intentionally.* “Discredited proof that it was intentional” = wrongful conviction. So, if you want to play semantics–the report doesn’t find him “innocent” but it almost surely would have led him to be found “not guilty.”
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October 2, 2009, 12:21 pmDavid Schwartz says:
These “utils” are a mythical way to gloss over the problem. There is no common unit in which utility to me can be measured against utility to you.
But that’s just precisely what we don’t (and certainly shouldn’t) do. There might be any number of cases where breaking the rules in that once case may produce way more utility than following them in all cases. But we don’t, because we have a moral commitment to those rules. We don’t have a free press because it’s efficient, we have one because it’s right. It doesn’t matter how much it helps society to control the press, it has no right to.
I utterly reject the utilitarian analysis. It is flawed in practice, because the common unit is not just notional but mythical. It is flawed in theory, because society has no right to exploit individuals regardless of how efficient it is to do so.
Society is not an end in itself. The only reason benefits to society are good at all is because they are benefits to the individuals that compose that society.
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October 2, 2009, 1:08 pmloki13 says:
I utterly reject the utilitarian analysis. It is flawed in practice, because the common unit is not just notional but mythical. It is flawed in theory, because society has no right to exploit individuals regardless of how efficient it is to do so.
Uh-huh. And what is “exploiting”? As for not having a free press because it isn’t efficient... um, what? Assumes facts not in evidence.
And what about the exceptions to the first amendment? How about the overthrow the government exception? Hmmmm? Let’s see.... defamation, and the related rule in NY Times v. Sullivan? Clearing the courtroom as an indefinite rule? All play into efficiency arguments.
I’m not a huge fan of utilitarianism, but it has its purposes. Bad utilititarianism can be used to justify monstrous acts. But then again, so can you system... since you are defining “bad” and “exploiting” with reference to “morals” which have no basis for independent measurenment, a society with different “morals” can do (from your point of view) monstrous things.
Slavery, anyone?
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October 2, 2009, 1:29 pmloki13 says:
To give you some examples:
1. Stoning to death of adulterers. (Islam)
2. Loss of hand for theft. (Islam)
3. Capital punishment. (many times in the Bible, incl. cursing your mother or father)
There’s an outsde referent for morality...
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October 2, 2009, 1:33 pmDavid Schwartz says:
I don’t dispute that it’s possible to attempt to justify these exceptions on pragmatic grounds. However, I don’t find those arguments persuasive for the reasons I explain — they attempt to balance one thing against another thing that is not commensurate with that thing.
Your argument would only respond to mine if you could show that pragmatic grounds were the only way to justify exceptions to the first amendment that are in fact justified.
Utilitarianism just adds more ways you can screw up, by pretending to measure things that are incommensurate. It doesn’t solve the problem you think it solves.
How can you run a utilitarian analysis of some policy without knowing whether or not something is a benefit? What if someone thinks that pain is good, and that therefore pain is a positive benefit that should be weighed against other “costs”? Obviously, such a person will use utilitarianism to justify monstrous (to those who don’t think pain is a good) things.
So utilitariansm suffers from this same defect as moral analysis, plus the additional ones I’ve noted.
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October 2, 2009, 2:38 pmloki13 says:
*shrug*
I think the debate between you and a true utilitarian (in this case, me, standing in for one) would come down to the following exchange:
U– Your system is completely arbirary. What is moral for one group is not moral for another, and vice versa. It is completely arbitrary. Moreover, the complaints you have about individuals (one person’s preference for pain, for example) is even more acute in your system– one person might view child murder as moral, even if the group did not.
D– Well, your system fails because somethings are hard or impossible to measure. Your math lets you do monstrous things!
U– Nothing is impossible to measure; some things are hard. Moreover, my system requires me to show my work. I have to justify my numbers, and other people can critique them. You do not; you simply assert something is “good” or “bad”. Someone else can then disagree by saying, “No, you’re wrong, my belief system is different.” There’s no empirical way to determine who is correct.
D– Your system is devoid of morality!
U– Your system is devoid of rationality!
...and so it goes. I think you fundamentally misunderstand (there’s those terms again) the use utilitarianism, efficiency, and (in a more specialized field) law and economics have. Let’s use smething less controversial– contract law.
Moral View: it’s wrong to break contracts, ever. Punish the breacher. Word is bond, yo.
Utilitarian View: provided the breaching party pays, it can be efficient for them to breach provided that a more efficient allocation of their resources results.
If you take the moral view, that’s the end of the discussion. It either is moral, or isn’t. If you take a utilitarian view, then you can at least analyze it, and are forced to show the work.
Cf. the death penalty. If you take the moral view, it will always be moral or immoral to have it. And that’s it. No more discussion. OTOH, you can look to see if the death penalty (and what legal rules associated with it) are most efficient. When you do that, you have to show your work. When you do, a critic could point out that you are undervaluing human life, or that you are undervaluing “the rule of law” erosion when an innocent person is executed, and so on. Once you do that, you are more informed.
It doesn’t mean you have to accept it. You can still let your morals determine your judgment (the death penalty is/isn’t wrong). But saying that it cannot be used is also kind of silly.
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October 2, 2009, 3:05 pmChrisTS says:
loki:
I don’t think many utilitarians would claim that “What is moral for one group is not moral for another, and vice versa.”
They are just as much objectivists as proponents of any other ethics. Some of them do think the test of utility is [somehwat] ‘subjective,’ but they all believe that utility is the objective moral standard.
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October 2, 2009, 3:57 pmDavid Schwartz says:
My point is that it utilitariansm doesn’t work because before you can balance costs against benefits you must have a standard for what is a cost and what is a benefit. Is restricting your freedom of speech a cost or a benefit? Is executing an innocent man a cost?
That “utility” is an objective standard is a convenient myth. There is no conceivable scale on which these things can be measured against each other and no utilitarian has ever explained one.
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October 2, 2009, 4:33 pmloki13 says:
That “utility” is an objective standard is a convenient myth. There is no conceivable scale on which these things can be measured against each other and no utilitarian has ever explained one.
Uh, I’m guessing you haven’t actually read very much on it. There’s a lot of work done in here, and you can frame it in different ways (for example, as revealed preferences), but saying that “no utilitarian has ever explained one” would be as ludicrous as my saying that “No Christian theologian has ever tried to justify Christian morality.” One issue is definig the parties– for example, restricting the freedom of speech would be a cost to the speaker. It could be a cost to society (the marketplace of ideas). It could be a benefit to society (defamatory speech). It could be a benefit to other individuals (the target of the defamation, if it is defamatory speech). And so on.
(Aside to ChrisTS– you are correct. I was using morals in the sense David was, and not in the sense of ethics. A utilitarian would argue that their result is “moral” in the same way.)
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October 2, 2009, 5:12 pmDavid Schwartz says:
Why? Why is that a cost rather than a benefit? Do utilitarians have some objective standard by which they say “this is a cost, this is bad” and “this is a benefit, this is good”?
I think you still misunderstand my objection. It wouldn’t matter what any utilitarian wrote about what his standards were, this is a problem in principle. For the utilitarian to have some measure of utility, he must say “this is good” and “this is bad”. That I had to do that was supposed to be his objection to my system, but he has to do it too.
Sure, he can make up a laundry list and say what he thinks is good and what he thinks is bad. And yes, at that point, sure, you can pick the thing that maximizes the good and minimizes the bad. But utilitarians hide the fact that they must do the former before they do the latter.
Identifying what is good and what is bad must precede any utilitarian analysis .
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October 2, 2009, 5:43 pmloki13 says:
David,
How do you identify what is good and bad? Again, you’re arguing based on assumption that there is “good” and “bad”, and these are indintified a priori. By who? Okay– murder is bad (let’s ignore war, self-defense, heat of passion and so on). If murder is “bad”, then why are there any unsolved murders? Clearly, it is “bad”, so we must devote all available resources and all of our efforts to find, track down, and punish those who have done bad. Yet we don’t. We devote a lot... but not enough to get close to 100%.
What about theft? Even moreso. Or, to use the easier to comprehend examples– how about prostitution and speeding? These are “bad”, right? If we *really* put the resources in, and increased the jail terms (for speeding!) we could end them. But apparently, we don’t. There is, perhaps, an efficient level of that sort of vice, or a level or tolerance.
You might notice that there is a priority list... almost like we believe that murders are more harmful (of less utility) than prostitution, so we expend more money to combat them, but that we also acknoweldge that there is a diminishing marginal return from expending exceeding amounts of money to catch the last x% of murderers. Go figure.
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October 2, 2009, 6:13 pmDavid Schwartz says:
In other words, the determination of what is good and what is bad must take place prior to any attempt to use a utilitarian balancing approach. One can get whatever balancing result one wants simply by changing what one considers good and what one considers bad.
My point is that utilitarianists claim that their conclusions are objective and don’t have the “subjective moral biases” that they see in moral analysis. But in fact, if those decisions are subjective, arbitrary, or unjustifiable, then so are their conclusions because they rely on that exact same determination before they get started.
Sure, once you decide what is good or bad and how bad it is, you have to prioritize what you do because you only have finite resources. But the interesting part is that first part — the second part is entirely uninteresting and won’t answer the types of questions we’re asking here.
If the idea of utilitariansm is to come up with objectively defensible courses of conduct, it fails, because it cannot objectively defend the goals the courses of conduct achieves — only show that the goals are met.
Utilitarianism isn’t an alternative to moral reasoning. In fact, it is only possible after the moral reasoning is complete.
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October 2, 2009, 6:51 pmloki13 says:
David,
I think we’re talking past each other at this point. It’s somewhat amusing to me because a) I’m against the death penalty (remember!) and b) I’m not a utilitarian (either rule or preference... act utilitarians are just sociopaths *grin*). However, I do find your inability to see the flaws in your own position somewhat odd. I know that some of my beliefs are irrational and inconsistent... and I’ve gotten past worrying about it. Have you?
Anyway, as I was trying to explain, ignorance of an economic or utility model of these things is foolish.
As an example–
Say someone will price their First Amendment rights at $50. We could approach this in a number of ways– for example, we could try and look at it as saying that “right” could be bought for $50, therefore that is how much the right is worth for that individual.
...or, you could do a thorough analysis, get the results, and then say, “Screw it. Free speech is too important.” But hey, the more you know... ;)
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October 2, 2009, 7:22 pmLeo Marvin says:
David,
How are we supposed to identify the harms that are incommensurable? Loki asked you that, or words to that effect, but if you answered it, I missed it. Apologies if I did overlook your answer.
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October 2, 2009, 7:57 pmDavid Schwartz says:
loki13: The problem is that using the idea that I price my rights at $50 to compare my rights to other people’s rights doesn’t work either. $50 is worth a lot more to me than it is to Bill Gates. So even “dollars to me” and “dollars to you” are not directly comparable.
Leo Marvin: I’m not sure what you are asking when you ask how we identify them. I would argue that moral analysis delineates the scope of our moral authority. I can choose what job I want, but I can’t choose to kill you for pleasure.
Within the scope of our legitimate moral authority, people are free to flip coins or guess if they wish to. I would hope they would use pragmatic arguments balancing costs to them against benefits to them. But the beauty of decisions within the scope of your own moral authority is that you are almost always dealing with things that are commensurate. (Benefit to me, harm to me, cost to me, and so on.)
The only case where things really do get tricky is when you have overlapping moral authority. For example, if I am the CEO of a company and have to make decisions involving harm to me and benefit to the company, or vice-versa.
These are the most difficult decisions precisely because we have to balance things that are not commensurate, and pragmatism/utilitarianism doesn’t help us one bit, because it asks us to do the impossible twice. (First to decide what is or is not a benefit without being subjective and then again by asking us to balance what is incommensurate.)
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October 3, 2009, 3:59 pmloki13 says:
David,
You keep dancing around the issue. You write that some things are immeasurable, but they aren’t. They can be measured (as revealed preferences). People might have different preference (for example, you might sell your freedom of speech for $50, Bill Gates might if he was offered $500 million). But it doesn’t mean that it *isn’t measurable*. Which was the point. The problem is in bring the right parties to the analysis, and how you set the deafult rule (and with what exceptions– to many collapses into act utilitariansm).
But you never answered the question posed to you– you write that flipping coins is okay, and killing people “for pleasure” is “bad”. Well, why? I know that in some societies, it was acceptable to kill people for pleasure. So... without further tautological reasoning (it’s bad because it’s bad, or it’s bad because an authority such as the Bible, Koran, etc. says it is bad) how are you determining that?
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October 3, 2009, 7:41 pmDavid Schwartz says:
I don’t think there’s any way I can bridge the is-ought gap in a reply that’s suitable for use on this blog. My own beliefs are closest to those normally associated with objectivism.
But that’s not the point. The point is that this criticism is unavoidable. If you want to get oughts from ises, you have to bridge the gap somehow. And pragmatists pretend that they don’t have to do that and claim their conclusions are objective and scientific. And they may be, if they tell us what the consequences of our actions will be. But that won’t translate to a ‘should’.
The interesting part is how we decide what is good, and that’s where the hard and interesting part is. When faced with a person who believes that moral reasoning based on pragmatism is a moral evil, the best they can do is claim that this is arbitrary and irrational. But how will they defend their own comparisons against that same charge?
If they use dollars for comparison, how will you defend against the complaint that “dollars to me” are not commensurate with “dollars to you”? Pragmatists pretend there is some way to compare “utility to me” against “utility to you”, and that just cannot be done. You cannot balance the interests of individuals against those of society pragmatically — it is simply impossible. There *is* no common unit.
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October 4, 2009, 8:33 pmDavid Schwartz says:
To summarize my own thinking: We do not yet have anything close to a full understanding of moral agency and human will. I strongly suspect that as we come to understand the true nature of moral agency, we will be able to determine that specific rights and responsibilities are in fact consequences of moral agency. Certain types of actions (such as causing pain for personal pleasure) will be seen as an actual breach of a responsibility that actually exists as a fact of reality and a trespass on a right that actually exists. These will exist as consequences of moral agency the same way, for example, legal rights actually exist as consequences of entering into contracts.
But, again, that’s really not the point. The point is that the conclusions of the pragmatists are only objective when they say “if you value X at level Y and Z at level T, then you should do V to maximize what you want”. And they are totally off the reservation when they claim there is some common unit that permits you to objectively balance utility to one person or group against utility to another person or group.
In particular, it is impossible to use pragmatism to balance an individual against a group.
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October 4, 2009, 9:09 pmloki13 says:
David,
I wrote a longer post, but I’ll sum up–
1. Things that are really hard to measure are not impossible. There’s a lot of work that’s been done on, for example, the diminishing marginal utility of increased wealth.
2. Believe what you want to, that’s what makes this country great. That you spend so much time attacking something which is amenable to debate, while advancing your own (not amenable to debate) theory is interesting. I’m glad you “strongly suspect” things will be discovered– I’m sure Aristotle did as well.
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October 5, 2009, 11:44 amDavid Schwartz says:
loki13:
Our understanding of moral agency is about where our understanding of color was in the 1700’s. I would have had confidence then that colors could have been put on a scientific foundation even though nobody at the time knew how to do it. And I would have rejected out of hand anyone who insisted that water looked yellow to them or that I could not prove the sky was blue. That we all agree the sky is blue is sufficient for me to conclude that it must “really be” blue, and have confidence that once “blueness” is understood this will be made rigorous. And I need have no patience with those who complain that my confidence is not amenable to debate.
The diminishing marginal utility of increased wealth just sets us back to another impossible problem — how is utility to me commensurate with utility to you? You need some fundamental moral notion of human equivalence or you need some fundamental moral notion that some people are worth more than others. If you take the former path, how will you defend it without accepting the very moral analysis pragmatists reject?
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October 5, 2009, 11:03 pmLeo Marvin says:
David,
Not to disparage the philosophical debate, but I am one of those pragmatists, so indulge me. Accept as a given that we prefer law to anarchy, and tell me what we’re supposed to do when my hobby is your incommensurable evil. Times 300 million.
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October 6, 2009, 1:17 pmDavid Schwartz says:
Leo: We look at whether what you are doing in your hobby is within the scope of your moral agency or not. If it’s not, we can use the law to stop you. If it is, then I’m limited to actions within the scope of my moral agency to stop or discourage you.
True, we don’t have a perfect understanding of the scope of moral agency. But we didn’t have one of colors in the 1700’s, and we could still all agree that the sky was blue and the sun was orange. And it wasn’t because we all hallucinate the same, it was because the sky really was blue and the sun really was orange, we just didn’t fully appreciate what “blue” and “orange” meant.
Yes, at one time the only way to agree that something was blue was for people to look at it. And there wasn’t much we could do if someone said “it looks green to me, and I don’t believe it’s blue”. That’s where we are with moral agency now, and we just have to live it. We look at it, and report what it looks like to us. And we do our best to understand its properties.
But what we don’t do is measure how much it means to me to stop you to how much it means to you to do it. Because that’s both impossible and nonsensical — and it doesn’t matter. No matter how much you want to stop me from doing something inside the scope of my moral agency, you do not actually possess the right to do so.
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October 6, 2009, 2:34 pmCheryl Freeman says:
The old saying ‘if it looks like a duck, waddles like a duck and quacks like a duck it is a duck’. Perry may well have had the right to replace Commission members but to replace the Members immediately before they were to meet and present their reports has the stench of a cover-up. That stench is permeating the air from coast to coast and the public, newspapers and TV networks are rightfully questioning his motives and demanding answers. If Perry’s intents were to cover up, and thus save his political standing, the fact he most likely permitted an innocent man to be executed, he may well have committed political suicide by his actions in removing the Commission members before their report could be delivered. If Mr. Willingham is proven to have been innocent, this may well be just the beginning of exposing other cases of innocent people being put to death in Texas and in other states that have the death penalty. Too many prisoners have sat in prison for years and some on death row only to be proven innocent by lawyers who took on their cases and proved how flawed the justice system truly is.
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October 13, 2009, 11:17 amThe Volokh Conspiracy » Blog Archive » Is Gov. Perry Covering Up the Execution of an Innocent Man? (continued) says:
[...] few weeks back, I asked whether Texas Governor Rick Perry was seeking to obstruct an inquiry into whether Texas executed an [...]