The American Law Institute has decided to pull its model death penalty statute, as recounted in this New York Times article. As Kent Scheidegger points out in this detailed post, the action was not intended to be a statement by the ALI that the death penalty should be abolished. Nonetheless, that appears to be the spin being put on the action by death penalty opponents.
I found particularly interesting Berkeley Law Professor Franklin Zimring’s statement in the New York Times article that they ALI “were the only intellectually respectable support for the death penalty system in the United States.” Apparently now if you support the death penalty in this country (as most Americans do), then you are not “intectually respectable.”
Professor Doug Berman has an interesting take on the issue over at his Sentencing Blog.
DJR says:
“the Institute withdraws Section 210.6 of the Model Penal Code in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment.”
Let’s unpack this:
The institute withdraws the death penalty section of MPC because:
1. There are “institutional and structural” problems with how the death penalty is administered.
2. These problems prevent “a minimally adequate system for administering captial punishment.”
3. The problems are intractable, or at least “currently” intractable.
Not quite a statement that it should be abolished but surprisingly close.
January 5, 2010, 3:17 pmMartinned says:
Presumably the “intellectually respectable” comment was meant to refer to organisations like the AMA, who strongly reject the death penalty.
January 5, 2010, 3:19 pmredc1c4 says:
someone should point out to the professor that the death penalty is enforced throughout the US on a routine basis, as a reading of the “Armed Citizen” feature in my NRA magazine documents every month. as usual, the average citizen is much more efficient that a governmental bureaucracy.
besides, anyone teaching at a school in Berkley is inherently suspect when it comes to making pronouncements as to what is “intellectually respectable.”
January 5, 2010, 3:27 pmDavid McCourt says:
I would have thought that Immanuel Kant had some intellectual respectability, especially if the competition is Frank Zimring.
January 5, 2010, 3:32 pmBlue says:
This is simply more evidence that elite opinion is sharply at odds with what the majority of the public believe.
January 5, 2010, 3:33 pmARCraig says:
“the Institute withdraws Section 210.6 of the Model Penal Code in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment.”
That’s what I’ve been saying for years. I have no objection to the theoretical morality of executing a murderer, which is what most people have in mind when polled about support or opposition to executions, I just think the state has proven itself untrustworthy and incapable of justly exercising such a power. One innocent person executed is not worth the difference between death and life in prison for all the guilty. You’d have to be in serious denial to claim the current system never does or could not execute innocent people. And I don’t understand how any one could look themselves in the mirror if they sought to somehow justify or excuse such murder.
January 5, 2010, 3:39 pmRPT says:
January 5, 2010, 3:43 pmMalvolio says:
That’s a tad ad hominem, but remember that scene in Dirty Harry where a law professor, brought in as a consultant to the police, explains why the Scorpio killer has to be released (apparently, torturing a suspect into a confession is a no-no, who knew?) The famously leftish film critic Pauline Kael objected to that scene, specifically to the fact that the professor was supposedly from Berkeley. Why not Hastings, she asked. Much closer, only a few blocks from the Hall of Justice instead across the Bay. Because, she continued, giving the obvious and obviously correct answer, to the average Dirty Harry audience member, “Berkeley” is transparent code for “liberal-commie-bleeding-heart”.
But now, in real life, in a period much more conservative than 1973, the New York Times needs a law professor as a consultant on a criminal law and they go … to Berkeley. Three time zones away, but even 37 years later, if you need a totally reliable liberal-commie-bleeding-heart, there’s still only one place to go.
January 5, 2010, 3:44 pmMGA says:
I had the great good fortune to be appointed to represent an inmate on death row in his federal habeas claim and I spent five years of my life down in that sewer. No one who has actually litigated capital issues on behalf of an inmate can possibly support the death penalty as a matter of policy. It is the ultimate in arbitrary and capricious punishment.
January 5, 2010, 3:49 pmSoronel Haetir says:
The courts have all but ensured that it will be thus by protecting large swaths of criminals well deserving of execution from their date with a rope.
January 5, 2010, 4:01 pmBlue says:
MGA, was he guilty?
I love how people like you set up a ridiculous system in which it is virtually impossible to execute those who deserve it then turn around and denounce the “arbitrary and capricious nature” of those few that get justice visited upon them.
January 5, 2010, 4:01 pmJ. Bogart says:
Frank Zimring began his career at the University of Chicago, and spent a good number of years there, before its recent drift to the left.
January 5, 2010, 4:05 pmVirginia says:
Re: application of the death penalty being arbitrary and capricious, I don’t see how this is an argument for abolishing the death penalty. If ten people commit first-degree murder and only one of them gets sentenced to death, that one has nothing to complain about; he got what he deserved. Society, on the other hand, has a legitimate gripe that the other nine did not.
January 5, 2010, 4:09 pmSteve P. says:
Blue – I am not sure that whether the accused was guilty is relevant. That may not be the issue; often, it’s an issue of fairness. If two people commit the same crime, with similar motives and evidence and so on, they should receive the same punishment.
Instead, one of them (usually the white one) will get prison, while the other will get the death penalty. That’s what’s meant by “arbitrary and capricious”, I believe.
Although, I could have misinterpreted MGA’s comment.
January 5, 2010, 4:11 pmMenshevik says:
Ernest van den Haag, in a 1986 Harvard Law Review article (“The Ultimate Punishment: A Defense”) expresses Virginia’s point admirably:
“Consideration of the justice, morality, or usefulness, of capital punishment is often conflated with objections to its alleged discriminatory or capricious distribution among the guilty. Wrongly so. If capital punishment is immoral in se, no distribution cannot affect the quality of what is distributed, be it punishments or rewards. Discriminatory or capricious distribution thus could not justify abolition of the death penalty. Further, maldistribution inheres no more in capital punishment than in any other punishment.
Maldistribution between the guilty and the innocent is, by definition, unjust. But the injustice does not lie in the nature of the punishment. Because of the finality of the death penalty, the most grievous maldistribution occurs when it is imposed upon the innocent. However, the frequent allegations of discrimination and capriciousness refer to maldistribution among the guilty and not to the punishment of the innocent (5).
Maldistribution of any punishment among those who deserves it is irrelevant to its justice or morality. Even if poor or black convicts guilty of capital offenses suffer capital punishment, and other convicts equally guilty of the same crimes do not, a more equal distribution, however desirable, would merely be more equal. It would not be more just to the convicts under sentence of death.
Punishments are imposed on person, not on racial or economic groups. Guilt is personal. The only relevant question is: does the person to be executed deserve the punishment? Whether or not others who deserved the same punishment, whatever their economic or racial group, have avoided execution is irrelevant. If they have, the guilt if the executed convicts would not be diminished, nor would their punishment be less deserved. To put the issue starkly, if the death penalty were imposed on guilty blacks, but not on guilty whites, or, if it were imposed by a lottery among the guilty, this irrationally discriminatory or capricious distribution would neither make the penalty unjust, nor cause anyone to be unjustly punished, despite the undue impunity bestowed on others (6).
Equality, in short, seems morally less important than justice. And justice is independent of distributional inequalities. The ideal of equal justice demands that justice be equally distributed, not that it be replace by equality. Justice requires that as many of the guilty as possible be punished, regardless of whether others have avoided punishment. To let these others escape the deserved punishment does not do justice to them, or to society. But it is not unjust to those who could not escape.”
January 5, 2010, 4:18 pmSW says:
Zimring said there was no intellectual support for the SYSTEM. Instead of responding to his statement, Professor, you demagogue. Is that because what he says is true, there is no intellectual support for the system?
January 5, 2010, 4:21 pmBlue says:
By that–impossible–standard the entire system in all cases is broken.
I also note, in irony, that the same cadre of professional criminal lovers who are opposed to the death penalty (putatively on these grounds) are also opposed to measures designed to eliminate disparities such as mandatory minumum sentences, removal of judicial discretion in federal cases, and three-strike laws.
How about a mandatory death penalty for certain crimes? Commit Murder 1, death.
That ought to solve the “arbitrary and capricious nature” of the current system.
January 5, 2010, 4:28 pmRyan Waxx says:
You’d have to be in serious denial to believe any justice system administered by humans in the real world would meet the criteria you specify.
This is merely a variant of “Oh, I’d support it, except that I can’t trust anyone to administer it.” AKA “I don’t actually support it here in the real world, but I want to sound intellectual and caring”.
January 5, 2010, 4:33 pmJeffH says:
I never understood why conservatives believe that the criminal justice system works better than the other parts of government that they inherantly distrust. I would think that most conservatives would be skeptical of government’s ability to fairly and accurately administer the death penalty. Yet somehow most conservatives and a surprising number of libertarians actually support the death penalty.
January 5, 2010, 4:35 pmThorley Winston says:
Then Berkley’s loss is the University of Chicago’s gain.
January 5, 2010, 4:55 pmsometime juror says:
Imagine yourself on a jury for a crime with a mandatory sentence of life without parole. The evidence is very, very strong, but circumstantial. You aren’t 100% sure, but are sure beyond a reasonable doubt – say 99%, or 99.99% or whatever. Let’s say it is a recent case, so all the DNA evidence stuff has been tried, but isn’t applicable to this case. If you convict, the defendant will certainly be incarcerated for the rest of his life. Isn’t that a pretty hard decision, too?
Life is time. I would gladly agree to be executed the day before I die of natural causes in exchange for a $10000 donation to my favorite charity. A life sentence for Bernie Madoff isn’t the same punishment as a life sentence for a 20 year old. Jailing an innocent man for 20 or 30 years differs from execution, to me, only in degree.
I submit that the problems with trial accuracy – the flawed eyewitness ID’s, the shoddy forensics, the self serving jailhouse snitches, and on and on, are pretty bad when they cause innocent people to go to jail for large fractions of their life, too. Eliminating the death penalty doesn’t address the root causes, and debating it masks the real issue: fix those problems.
January 5, 2010, 4:55 pmSteve P. says:
I don’t disagree. I suppose the argument is that a sentencing discrepancy of a few months (or even years) isn’t as big of a difference as, say, one person living and another dying.
That’s often where people start when drafting laws, but rarely where they end up. Let’s say I committed murder 1, killed my own father, after years of sexual abuse. Let’s also say that I even told the authorities what was going on, they believed I was lying, and sent me back into my father’s custody. Do I still deserve the death penalty?
I’m sure you can come up with even more egregious scenarios.
January 5, 2010, 5:02 pmtherut says:
What liberals are really at heart aiming for is to get rid of the death penalty and then make it immoral in their eyes for someone to kill in self-defence. Just like the manta that all war in immoral. Tisk, tisk… They could work to make the system better but instead they put up road blocks and scream that the system does not work so just QUIT it. Some murders are so evil that the death penalty is the only just sentence by a moral society. Problem is the liberals have made it expensive and so long and drawn out the innocent killed do not even matter. The hell with the innocent it is the guilty that matter. I say the hell with that.
January 5, 2010, 5:02 pmDavid McCourt says:
The gulf between Professor Zimring and the ALI, on the one hand, and ordinary public opinion, on the other, as to the death penalty mirrors in miniature the modern history of death penalty jurisprudence, in which “expert” professional opinion has sought to control and regulate the ordinary juror’s sense of just punishment in a particular case.
Having decided that “unchanneled jury discretion,” was suddenly somehow unconstitutional, and that the jury — a feature of our law for centuries connecting popular sentiment and the administration of justice, and a frequent source of leniency not found in the written codes — was now only a sign of “lawlessness,” the experts, including the ALI, tried to codify and systematize the processes of justice in a jury trial, as if they could dictate fair outcomes in myriad circumstances through the creation of laundry lists of abstract “factors” drawn up in advance at an ALI meeting. Having made a completely predictable hash of that, they now decide to throw in the towel and agree to the abolition of a penalty whose application is beyond their remote control.
They should have listened to Justice Harlan’s wise opinion in McGautha v. California (1971), which modestly recognized the limits of both human knowledge and constitutional adjudication, when it said “[t]o identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability.”
January 5, 2010, 5:05 pmVirginia says:
I never understood why conservatives believe that the criminal justice system works better than the other parts of government that they inherantly distrust. I would think that most conservatives would be skeptical of government’s ability to fairly and accurately administer the death penalty. Yet somehow most conservatives and a surprising number of libertarians actually support the death penalty.
AS previous commenters have pointed out, no system run by human beings is perfect. But punishing crime–real crime, like murder, rape, and robbery, not fake crimes like “hate speech”–is a proper function of the government, one that government has performed since the dawn of civilization (indeed, one could argue that civilization dawned when the government, rather than private individuals, began performing this function). Running car companies, telling parents how to raise their own children, regulating what chemicals people voluntarily ingest, and other such matters, are not proper government functions. The government, like most people, is much better at doing its own job than doing other people’s jobs.
January 5, 2010, 5:05 pmPerseus says:
Usually it’s the MAN who gets the death penalty, not the woman, though I don’t hear many complaints from feminists about that disparity.
January 5, 2010, 5:08 pmPersonFromPorlock says:
I’m ambivalent about the death penalty, but I’d like to point out that it disappeared in post-war Europe because it was obvious by then that many countries had used it for ‘political’ purposes. While nothing like that is going on in America, the opportunity for such misuse is there as long as the penalty is.
January 5, 2010, 5:08 pmRyan Waxx says:
I’ve never understood why liberals feel that government can’t handle life-or-death decisions when they’re made by the military or the courts, but it’s just ducky when government does that in the guise of health care… and the people in THAT instance haven’t even had the benefit of a trial!
January 5, 2010, 5:08 pmDjDiverDan says:
As a firm supporter of capital punishment in theory, I have to agree that the problems with “the system” are indeed seemingly intractable. And the problem is not really “the courts”, which, in my view, are fighting a losing battle to keep the process fair and reliable. Anyone who has read the background of the Supreme Court case on prosecutorial immunity that just settled out should understand that there are prosecutors and police officers running amok out there, bound and determined to get a conviction regardless of the facts. And it really is true that a Jury is 12 people too stupid to get out of jury duty; I’ve been called and appeared for jury duty in the Dallas County criminal courts 3 times in the last 14 years, and invariably as soon as the lawyers find out I practice law (and not even criminal law), someone will strike me off the panel – one side or the other really does not want anyone with an independent mind on the jury (I’m guessing it’s usually the prosecution). And while I almost always vote Republican in non-judicial races (neither party has a monopoly on morons running for judgeships!), I’ve become a real fan of Dallas County DA Craig Watkins, with his conviction integrity unit. The number of falsely convicted just in Dallas County over the years is scary, and, while I would not flinch about voting for the death penalty for someone I was very certain was guilty, I think the present state of the system presents just too large a risk of an innocent person being put to death. Until we develop a system where it is clear that District Attorneys have a duty to seek the truth, and not merely convictions, and Police and other law enforcement personnel have a real incentive to respect constitutional rights, and understand that getting the RIGHT suspect is more important that just nailing anyone to clear the case, and juries (though I believe the problem of juries is truly intractable) really understand the concepts of “innocent until proven guilty” and “beyond a reasonable doubt”, and quit walking into the jury room with the belief that if the accused was arrested and charged, he must be guilty of something, then I am very uncomfortable with a penalty as final as death. It took 28 years in prison on a life without parol sentence before it was established that the two Iowa plaintiffs in the prosecutorial immunity case had been railroaded; imagine if they had been sentenced to death.
January 5, 2010, 5:19 pmAndy McGill says:
The “intellectual basis” of the death penalty is based on an assumption that there is no difference between blacks and whites, so any death penalty difference is discrimination. Academia assumes a certain world, and if the world is not that way, then this is just an academic problem.
Has anyone looked at the death penalty of victims and perpetrators of asians? Like college enrollments, those statistics are even more stark than whites.
January 5, 2010, 5:30 pmathEIst says:
14 hours and we still are awaiting MGA to tell us if he was guilty.
January 5, 2010, 5:31 pmAnderson says:
Apparently now if you support the death penalty in this country (as most Americans do), then you are not “intectually respectable.”
Indeed.
And by definition, when has the majority opinion in any country been “intellectually respectable”? A majority of Americans favor Social Security — does that make it “intellectually respectable”? Most of them believe in creationism, which does not thereby become “intellectually respectable.”
A professor of law whose idea of argument is appeal to majority opinion? I don’t think that’s intellectually respectable, either.
January 5, 2010, 5:34 pmNunzio says:
Since there are 50 states (with numberous counties0, D.C., and the federal government (with 95 judicial districts), why does ALI speak of “the system”? Seems a tad ’60s-ish.
Perhaps the federal one in which a Mousaoui (black and French) is spared the death penalty by a federal jury in Virginia while McVeigh (white and American) is sentenced to death.
Maybe California, where the downtown L.A. jury let O.J. skate on two murders of white people, while the Northern California jury gave Scott Peterson the death penalty?
(Texas, up and down, county-to-county is a bad system with bad sub-systems, though)
January 5, 2010, 5:44 pmAdam J says:
David McCourt- “… the modern history of death penalty jurisprudence, in which “expert” professional opinion has sought to control and regulate the ordinary juror’s sense of just punishment in a particular case.” Is that the case? In normal criminal cases a jury has no authority over what is the “just punishment”, that is determined by the legislature & the judge. The jury is only responsible for determining guilt or innocence.
January 5, 2010, 5:48 pmtamerlane says:
Frank Zimring:Law::Norman Mailer:Literature
January 5, 2010, 5:54 pmSueSimp says:
Count me in as another who is has no problem with imposing a death penalty against deserving criminals, but who cannot support the death penalty as administered in the U.S.
You don’t have to be a bleeding heart liberal to think the capital punishment regime is broken. Particularly bothersome is our willingness to sentence the mentally ill to death — there is no deterrence value in overwhelmingly imposing capital punishment against those so crazy they are the least able and least likely to decide their actions based upon the likely consequences, and although some might think vengeance is served by it, I don’t. And there’s no preventative justification that can’t also be accomplished by life without parole.
Not to mention, the death penalty is also ridiculously more expensive to impose and carry out. Aside from all the moral justifications, it’s just a poor investment.
January 5, 2010, 6:05 pmRyan Waxx says:
It really depends on how far down you are willing to define “mentally ill”. Right now, most states make the cutoff point to be “unable to distinguish right from wrong” or something similar. Being able to distinguish right from wrong, literally means that you can tell that what you are about to do is an atrocity, and therefore your complaint that the defendant can’t tell that they are doing something that might get them sentenced to death is revealed for the nonsense that it is.
I suppose you don’t have to be a bleeding heart liberal to be unable to comprehend the idea that being able to tell right from wrong is tied to weather you can be deterred with a death penalty, but it helps.
January 5, 2010, 6:16 pmChris says:
Isn’t it more of a psychological problem than a systematic problem? I.e., people empathize more with their own race; thus an all-white jury is more likely to sentence a black to die than a white.
Or is this type of problem considered systematic?
January 5, 2010, 6:23 pmBlue says:
Ah, someone else who has no problem in theory but no human system would work.
1) Your position that it is about “deterrence” missed the main point of the death penalty–that it is about justice. That there are some crimes against the social contract that are so heinous that the ultimate penalty is required. “Deterrence,” “threat to society” and other considerations are not a factor. Also note that justice is not equivilent to vengeance.
2) The cost of the death penalty is high because we perform few of them and because their is an entire industry of lawyers devoted to increasing the time and cost to as high a level as possible. Not a convincing argument against the DP.
January 5, 2010, 6:31 pmDavid McCourt says:
Adam J quotes me: … the modern history of death penalty jurisprudence, in which “expert” professional opinion has sought to control and regulate the ordinary juror’s sense of just punishment in a particular case, and asks: “Is that the case? In normal criminal cases a jury has no authority over what is the “just punishment”, that is determined by the legislature & the judge. The jury is only responsible for determining guilt or innocence.”
It was the case at the begining of the death penalty jurisprudence I mention. In McGautha (1971), for example, the California and Ohio criminal statutes at issue provided that the jury would determine which of the statutorily available punishments (including death) would be applied, in accordance with the evidence and the jurors “judgment and conscience.” Interestingly, the California jury instructions stated:
And of course, compromise verdicts and jury nullification still can have the jury playing a role in determining the punishment.
January 5, 2010, 6:33 pmRyan Waxx says:
To be fair, many DP advocates do believe in deterrence, so it’s not like she invented the idea just to debunk it.
January 5, 2010, 6:35 pmMenshevik says:
For a study that concluded that capital punishment has a deterrent effect, see Mocan and Gittings, “Pardons, Executions and Homicide.”
http://econ.cudenver.edu/home/workingpapers/2001_18.pdf
“This paper uses a data set that consists of the entire history of 6,143 death sentences between 1977 and 1997 in the United States to investigate the impact of capital punishment on homicide. We merge this data set with state panels that include crime and deterrence measures as well as state characteristics. Our data set allows us not only to analyze the impact of executions, but also for the first time in the literature, the impact of pardons by governors on criminal activity. Because we can identify the exact month and year of each execution and pardon, we can match them with criminal activity in the relevant time frame. Controlling for a variety of state characteristics, we investigate the impact of the execution rate, pardon rate, homicide arrest rate, the imprisonment rate and the prison death rate on the rate of homicide. The models are estimated in a number of different forms, controlling for state fixed effects, common time trends, and statespecific time trends. We find a significant relationship between the execution and pardon rates and the rate of homicide. Each additional execution decreases homicides by 5 to 6, while three additional pardons generate one to 1.5 additional homicides. These results are very robust to model specifications and measurement of the variables.”
January 5, 2010, 6:50 pmSW says:
Menshevik, Was it ever published?
January 5, 2010, 7:00 pmMenshevik says:
I got over 500 Google hits just now when I did a search. It’s NBER [National Bureau of Economic Research] Working Paper No. 8639.
January 5, 2010, 7:11 pmJustin says:
I think you are conflating the many parts of the criminal justice system into a general reference to the “government.” I think most of the time when conservatives refer to the “government,” they are mostly thinking of Congress. In regards to the criminal justice system, you also have to take into account the judiciary, the DOJ, and ordinary American citizens and the roles that all of these play. In regard to the capital punishment, the executive branch may determine whether to bring a capital charge and the judiciary may be in a position to enforce the punishment of a capital charge, but it is really the American people acting as jurors that are ultimately deciding whether to impose the death penalty.
January 5, 2010, 7:11 pmPerseus says:
Since Aristotle at least: “the city is made up of many persons, just as a feast to which many contribute is finer than a single and simple one, on this account a crowd also judges many matters better than any single person” (the “wisdom of crowds” idea isn’t so new). Of course, that doesn’t make it generally the best opinion, but it does mean that we shouldn’t presume the superiority of a mere intellectual at Berkeley, let alone your personal pretensions to intellectual respectability.
January 5, 2010, 7:39 pmCrunchy Frog says:
What do you have against Mailer?
January 5, 2010, 8:08 pmBama 1L says:
Because the ALI drafts the Model Penal Code.
January 5, 2010, 9:07 pmGuy says:
Yeah, I say we base all public policy on internet polls.
Slightly askew to this issue, there’s something that’s always bothered me; there are four theories or purposes for punishment: deterrence, rehabilitation, incapacitation, and retribution. What, exactly, is the justification of retribution? It seems like all emotion and no logic. Is anyone on here willing to defend retribution on grounds of societal/personal benefit, without resorting to the idea that inflicting harm on bad people is an end in and of itself? Or does the theory of retribution rely on people feeling emotional satisfaction from that?
January 5, 2010, 9:20 pmDavid McCourt says:
Tamurlane — “Frank Zimring:Law::Norman Mailer:Literature”
Frank Zimring: judge of what is intellectually respectable: Norman Mailer: judge of which prisoners are good candidates for a pardon.
January 5, 2010, 9:34 pmSW says:
Guy – The traditional justification for retribution is to prevent the taking of private justice outside of law. To prevent lynchings, feuds, vigilantism and the breakdown of society.
January 5, 2010, 9:45 pmSteve2 says:
A minimally adequate system would execute the majority of deserving convicts. Coker v. Georgia and its progeny prevent that by saying most deserving convicts are by law undeserving of termination. That’s an intractable structural problem. Groups of aiders and abettors like Amnesty International and the Death Penalty Information Center pump millions of dollars into obstructing executions so they can turn around and crow about how expensive, slow, and ineffectual the death penalty is due to the problems they’ve caused. That’s an intractable institutional problem. The mistake of including the 8th Amendment in the Bill of Rights has never been corrected. That’s a currently intractable structural problem.
They’re statement isn’t at all a statement that execution should be abolished; it’s a statement that it almost has been. And lamentable as that fact is, it is a pretty accurate of our sorry state of affairs.
It’s pretty close to equivalent. What is justice? It is punishment: the equal and opposite reaction to a bad action, inflicted by a third party to ensure that the guilty suffer in equal measure to the harm they’ve caused. That’s why there is no justice without torture. Now, what is vengeance? It is punishment: the equal and opposite reaction to a bad action, performed by the victim of the bad action to ensure that the guilty suffer in equal or greater measure to the harm they’ve caused. Vengeance, by including the possibility of a greater measure of suffering, has deterrent value that justice doesn’t. Other than that, the difference is only in who carries it out.
January 5, 2010, 9:45 pmNI says:
Whatever other arguments may exist for or against the death penalty, it’s no deterrent for the simple reason that no criminal ever thinks he’s going to get caught.
January 5, 2010, 10:10 pmRyan Waxx says:
If some level of retribution isn’t provided, citizens tend to take things into their own hands, which undermines the judicial system as being considered the legitimate arbiter of a criminal’s fate.
You think that if someone raped and killed a child in a place that underpunished that sort of crime, that there wouldn’t be slightly more chance that the murderer might be shot by the police under false pretenses? Especially if the underpunishment was severe, and there’s no reason to believe it wouldn’t be, because many DP opponents freely admit that life without parole is their next target.
Now imagine the guy who was shot was actually innocent. The system can fail when it’s too lenient, just as it can fail when it’s too draconian.
I am aware of no conventional definition of justice that requires it to be equal in magnitude to the harm caused. That’s just plain wacky. What if someone shot 4 cops? How would you kill him 4 times in return?
January 5, 2010, 10:53 pmRyan Waxx says:
Why don’t you think about that statement.
…
…
Now, please explain to the class how your statement can possibly be distinguished from “Jail is no deterrent for the simple reason that no criminal ever thinks he’s going to get caught.”
January 5, 2010, 10:56 pmFub says:
I agree.
I’ll believe that supporters of the death penalty are serious the day that prosecutors and police officers “running amok” are sentenced to death for crimes such as the cold blooded murder of Kathryn Johnston.
Kathryn Johnston’s cold blooded murderers got nothing more than a slap on the wrist for their crime: less than 10 years prison and less than $10,000 restitution to her family for burial expenses. If their attempted frame-up had been successful, they wouldn’t have killed Kathryn Johnston, and she would have sentenced to more than that.
January 5, 2010, 11:05 pmCalderon says:
I think you make a solid point that libertarians ought to be ever vigilant of the criminal justice system, and of course that are plenty of libertarians who clearly (yes, clearly) are, Radley Balko being one of the more obvious in the blogosphere. You’re right that’s there’s no reason to expect the government to be better at criminal justice than civil regulation and other tasks, and good reasons to think that the criminal justice will be more prone to abuse than other activities undertaken by the government. That said, it’s not clear to me why libertarians should be especially skeptical of the death penalty as opposed to other penalties, such as life imprisonment or long terms of years. Libertarians ought to make sure there are appropriate checks, due process, etc. for all punishments.
I have to admit I’ve never understood the sharp differences many people draw between the death penalty and long prison sentences. I used to clerk, and I was simply shocked when the same judges who would truly agonize when a defendant was sentenced to death would treat life sentences for drug traffickers like any other case. I used to be a more firm supporter of the death penalty, but am more ambivalent about it now. The reason I’m ambivalent isn’t from any doubt about the moral propriety of the death penalty, but simply because the penalty has drawn so much attention and it has become so difficult and costly to actually execute people that it simply seems easier to sentence them to life in prison (which to me seems like a very comparable fate in any case).
January 5, 2010, 11:11 pmtherut says:
I can sum up the problem easily. Our Justice system is corrupt and it has become a legal system for corrupt lawyers, prosecutors and special interest groups. Justice for the innocent will never be. It has become a game played by a group of people that do not represent the people but themselves. The truth does not matter as much as the game. The truth has died but the people do not know that yet or just do not care.
January 5, 2010, 11:15 pmDavid McCourt says:
The argument from moral philosphy for the death penalty — in, and only in, the appropriate case — doesn’t have much to do with the private lust for revenge, or anything to do with utilitarian goal of deterrence. It has to do with the idea of justice itself: that certain actions rightly have fitting consequences, without which exists only moral chaos. Here is Immanuel Kant, Science of Right (1790), on the “moral imperative” of punishment, on why the prisoner should not be “used” as an example to deter:
Here Kant explains why justice is not quite the same as retribution:
January 5, 2010, 11:31 pmtheobromophile says:
This is particular interesting when located two posts down from Prof. Anderson’s commentary about lawyers as a ruling class.
Zimring’s statement is the type of thing that causes conservatives to shun “intellectually respectable” thinking; then people wonder why they appear to be “anti-intellectual.”
This is a bigger problem for conservatives than for liberals; we’ve allowed them to use this line of discourse so many times, and we (in general) react to it in so many predictable ways that reinforce the stereotype, that we pretty much let the “anti-intellectual” label be applied to us.
January 5, 2010, 11:43 pmJon Rowe says:
Menshevikm,
Many thanks for producing Van Den Haag’s work. I had this exactly in mind when reading through this thread.
We need a system where when we know someone is factually guilty of capital murder like John Mohammad or Timothy McVeigh, their swift execution is procured in a matter of a short few years.
January 5, 2010, 11:48 pmJon Rowe says:
A good point. I have a prescription for xanax because of anxiety issues. That makes me “mentally ill” to some extent. Should I therefore be un-executable?
January 5, 2010, 11:50 pmcookiemonsta says:
“We need a system where when we know someone is factually guilty of capital murder like John Mohammad or Timothy McVeigh, their swift execution is procured in a matter of a short few years.”
But it’s VERY possible that McVeigh took secrets to the grave with him. Names of accomplices, for example. MAYBE if he was still alive he’d come around some time and spill the beans. Now that he’s dead there’s no chance.
January 6, 2010, 12:14 amVisitor Again says:
[Somehow this block quote got twisted up, but Menshevik is quoting Ernst van den Haag's Harvard Law Review article.]
It’s hardly surprising that the man who, in William Buckley’s National Review, defended the continuation of racially segregated schools on the ground of what he claimed was the genetic inferiority of black people in intelligence should also not be bothered about racial discrimination in administering the death penalty.
Putting that aside, I rather think that equality of treatment is essential for respect for the law. Nothing I know of is more apt to engender complaints and breed disrespect if not contempt than unequal treatment of people in like situations. Invariably, it’s the reason cited when people claim they have somehow been treated unfairly or unjustly. It’s so common I would say it’s part of human nature. If Ernst van den Haaf wants to argue a law providing that, say, all Jews committing first degree murder will get the death penalty while all others who commit the same crime get life imprisonment is not immoral or unjust, that’s fine with me, but he’s blowing in the wind.
The role of equality of treatment in American law is fascinating. It is ubiquitous. It is part of equal protection of the laws, of course. It is part of first amendment law, which prohibits content discrimination except, perhaps, in obscenity cases, where varying community standards have sometimes been applied, not without complaint. It plays a part in free exercise of religion and establishment clause doctrines. It is part of the law of due process, which prohibits arbitrary deprivations of life, liberty and property. It pops up so frequently, I think, because it is regarded as a cornerstone of morality and justice.
January 6, 2010, 1:55 amRicardo says:
Indeed. I have to say I think conservatives made a big mistake by getting behind David Horowitz’s attempts to paint conservatives as a victim class. It may have started out as a self-consciously smart-alecky rejoinder to liberal identity politics but it appears to have a life of its own now to the point that Glenn Beck says on national TV that conservatives and Jews are both going to be singled out for persecution in the U.S.
There is also the issue of those who dish it out having to be willing to take it as well, also. It seems to me that conservatives are well within their rights to make fun of the stupidity and intellectual vacuity of Hollywood or celebrity liberals. Why all the touchiness among some when someone makes a similar comment about Sarah Palin or Rush Limbaugh then?
Academics tear each other up all the time. Go to a seminar at the University of Chicago econ department sometime and see how those guys treat each other. Conservatives don’t do themselves any favors by acting like shrinking violets or complaining about bias when their own ideas are subjected to the same harsh criticism.
January 6, 2010, 2:48 amNI says:
I’m not convinced jail is much of a deterrent either; if it were we wouldn’t have so many people in jail. In fact, if deterrence were the only issue, giving a convicted criminal a good beating on the courthouse steps would probably be as effective if not more so than the current system.
In fact, the more I think about it, the more I think deterrence is a red herring for both sides and we should move on to other arguments.
January 6, 2010, 8:01 amseattle law student says:
Where does this theory come from? Pure fantasy? Or is your contention that those laws which limit self defense to the minimal force necessary to deter the attack and those that create a duty to retreat are part of a creeping conspiracy to eliminate self defense?
January 6, 2010, 11:47 amNI says:
I don’t know if it’s a creeping conspiracy or not, but the idea that I should have to retreat in my own home against an invader is obscene. Any law that shifts any part of the risk from the criminal to the victim makes it less expensive to be a criminal and therefore can be counted on to increase crime. The law should be that if you commit a crime against person or property, you have no standing to sue anyone for anything under any theory whatsoever.
January 6, 2010, 11:58 ammenshevik says:
Visitor Again’s opening paragraph about the passage I quoted from Van den Haag suffers from the usual deficiency of ad hominem attacks: it does not address the merits of the arguments. I readily stipulate that I do not agree with Van den Haag’s racial beliefs, but those beliefs have nothing to do with whether or not the arguments stated in the passage are correct. Van den Haag’s article makes no mention of such beliefs, and contra Visitor’s insinuation, any fair-minded reader will see that the article does not advocate harsher punishments for blacks or any other racial group.
Visitor also assumes that that there is racial discrimination in the application of the death penalty, without producing any supporting evidence. In fact, as is the case with the deterrent effect of the death penalty, this issue is debatable.
Lastly, arguendo, if blacks are punished more harshly than whites, Visitor appears to assume that lessening the punishment of blacks would increase respect for the law. But if equal treatment is the most crucial aspect in how people regard the law, why not increase the punishment for (guilty) whites so that it matches the punishment for (guilty) blacks?
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January 6, 2010, 2:11 pmBlue says:
Er, yes? Rather obviously so, actually.
January 6, 2010, 2:21 pmPerseus says:
In addition to preventing people from taking justice into their own hands and Kant’s defense, Aristotle argues that it is to restore equality, which is a essential part of the overall definition of justice:
As the unjust in this sense is inequality, the judge tries to restore the equilibrium. When one man has inflicted and another received a wound, or when one man has killed and the other has been killed, the doing and the suffering are unequally divided; by inflicting a loss on the offender, the judge tries to take away his gain and restore the equilibrium…Thus, the equal occupies the middle position between the more and the less…The median between them…is the the equal or fair which, we assert, is just. (Nicomachean Ethics, 1132a5-20).
January 6, 2010, 3:07 pmPerseus says:
That presupposes that academics bother spending much time actually covering conservative ideas in depth in the first place, and there’s a major difference between professors tearing into each other and a professor tearing into an undergraduate student.
January 6, 2010, 3:21 pmChris Travers says:
I think you bring up two extremely good points. the first one is that sentencing someone to life in prison without parole is not qualitatively different from the death penalty. (Personally I would argue that life in prison without parole is a worse punishment and should be abolished in favor of the death penalty but I digress. I would, however, support a life in prison without parole if prisoners had a moral right to suicide but forcibly keeping someone alive in prison for the rest of his/her natural life is an extreme punishment we all should shrink from.)
The second is that the problem with an unfair system is in fact to fix the system. IMO this means trying to ensure that public defenders have the resources and motivation to provide top-notch criminal defence (this would fix a bunch of other problems as well).
January 6, 2010, 4:46 pmBama 1L says:
That Zimring statement makes a lot more sense if you take it without Mr. Cassell’s immediate rejoinder. Zimring does not say that the ALI presently provides the only intellectually-respectable support for the death penalty.
Rather, Zimring is talking about the 1960s, when the ALI drafted the Model Penal Code to include the death penalty. In the 1960s there really wasn’t much intellectually-respectable support for the death penalty. As I think has been noted, the AMA was against it and forbade physicians to participate. Practically every other learned body took a similar stance. Mainline Protestants, then reaching the end of their ascendancy, had moved into opposition. The two new states, Alaska and Hawaii, had no provision for the death penalty. The world’s other rule-of-law democracies, reassessing everything after the experience of totalitarianism, were abandoning its use. It seemed like the death penalty was only around because of inertia and would soon be outgrowed. There was no reasoned explanation why it should continue to be used in a country like ours.
So when the ALI drafted the Model Penal Code, it was a bit surprising they included capital punishment as a penalty for certain crimes (including, I believe, rape and kidnapping as well as murder). Here you had a bunch of distinguished law professors saying that there was, indeed, a place for the death penalty in modern society governed by enlightened laws. This decision may well have contributed the the death penalty’s longevity and the development of theories based on deterrence that support its continued use.
Nowadays there is, in fact, a far greater body of intellectual support for the death penalty. I mean, you have Cass Sunstein writing an article on the measurable deterrent effect and its moral consequences. So the ALI ending its support, to the very limited extent that it did so, doesn’t leave the death penalty intellectually unsupported. Rather, the ALI realized that the type of thing it did (suggesting statutes) was increasingly irrelevant to modern capital litigation, which depends almost entirely on the pronouncements of the federal judiciary.
January 6, 2010, 4:52 pmSteve2 says:
That’s why I don’t believe punitive torture is per se immoral or should be per se unconstitutional and illegal. As the amount of harm done by the malfeasance is increased, the amount of pain necessitated as punishment is increased. That’s why execution is an appropriate penalty for crimes with a large number of victims (e.g., financial crimes) and severe non-murder crimes (e.g., rape, official corruption), and why a cornucopia of methods of execution along a full spectrum of tortuousness from instant and painless to as sadistic as can be implemented should be available so that an appropriate degree of suffering can be inflicted based on the severity of the specific crime (one rape versus ten rapes versus one hundred rapes).
People tend to ignore that question. At least, that’s the only way I’ve seen anyone react since I started asking it in high school. But it’s a valid question: is there a reason that increasing the rate of execution for the races with lower rates of execution isn’t the ideal solution to any racial disparity in executions?
January 7, 2010, 12:27 amChris Travers says:
I have to disagree with that. I don’t think we should torture people under any circumstances. In fact I support the death penalty because I think forcing people to live in prison without either the chance of parole or the right to suicide is a form of torture.
January 7, 2010, 1:02 pmEM says:
Seriously? Can you cite any credible study that has found that there is *not* racial discrimination in the application of the death penalty? Professor Baldus’s study and the many many that have followed have been widely acknowledged as extremely strong empirical evidence that there is widespread racial discrimination in the death penalty system. The Supreme Court acknowledged as much in McCleskey. The North Carolina Racial Justice Act was passed because of the overwhelming nature of such evidence. I understand that people have differing views on the morality of the death penalty, and researchers have worked hard to find evidence of a deterrent effect (with extremely limited success), but to say that it is debatable whether there is systemic racial discrimination is beyond foolish.
January 7, 2010, 1:54 pmMenshevik says:
I said that the issue is debatable. I haven’t verified the citations in the following passages from a pro-capital punishment web site, but they should be sufficient to show that my statement is correct.
http://www.prodeathpenalty.com/DP.html#C.Race
…Drs. Stephen Klein and John Rolph, “Relationship of Offender and Victim Race to Death Penalty Sentences in California”(Jurimetrics Journal, 32, Fall 1991), found that, “After accounting for some of the many factors that may influence penalty decisions, neither race of the defendant nor race of the victim appreciably improved prediction of who was sentenced to death . . . “. Thirdly, Smith College Professors Stanley Rothman and Stephen Powers (“Execution by Quota?”, The Public Interest, Summer 1994), found that legal variables, such as prior criminal history and the aggravated nature of the murder, are the proven basis for imposition of the death penalty. The black/white variation in sentencing has generally been reduced to zero when such legal variables are introduced as controls.
4) Based on a study conducted by Profs. Baldus, Woodward and Pulaski, McCleskey argued that the death penalty was racist. In August, 1983 Federal District Court Judge J. Owen Forester found that the study’s conclusions of racial bias were without merit. In 1985, the 11th Circuit Court of Appeals, by a 9-3 vote, stated “Viewed broadly, it would seem that the statistical evidence presented here…confirms rather than condemns the ( death penalty) system.” In April 1987, the Supreme Court (5-4) stated that the referenced study did not establish that capital punishment discriminates against black defendants or killers of white victims. “At most, the Baldus study indicates a statistical discrepancy that appears to correlate with race. Apparent disparities in sentencing are an inevitable part of our criminal justice system. The discrepancy indicated by the Baldus study is ‘a far cry from any major systemic defects”. “McCleskey offers no evidence…that would support an inference that racial considerations played a part in his sentence”. “…the Baldus study is clearly insufficient to support an inference that any of the decision-makers in McCleskey’s case acted with discriminatory purpose.” “Even Professor Baldus does not contend that his statistics prove that race enters into any capital sentencing decisions or that race was a factor in McCleskey’s particular case.”
5) From 1976-1995, 5 white murderers have been put to death for the murder of black persons and 101 black murderers have been put to death for the murder of white persons (NAACP LDF, 1996). Opponents falsely contend that this is evidence of racism in the “system”. That 101:5 ratio, or 20:1, is consistent with statistics that show aggravated crimes (those crimes committed with the murder which may make a crime eligible for the death penalty) are committed by blacks against whites in far greater numbers than by whites against blacks. For all violent crimes, there are ten times as many black offenders (2,016,939) involved in white victim violent crimes as there are white offenders (210,869) involved in black victim violent crimes, or a 10:1 ratio. (The State of Violent Crime in America, pg. 12,1/96, data derived from Criminal Victimization in the U.S., 1993, BJS forthcoming, tables 42 and 48. JFA has assumed multiple offenders to be two offenders for calculation purposes.) In addition, blacks are nearly three times as likely to murder whites (849), as whites are to murder blacks (304), or 3:1 (Sourcebook 1994, BJS 1995, table 3.123). IF murder rates are statistically consistent within the violent crime category, as McCleskey et al indicate, then blacks are, statistically, by a 30:1 (10:1 X 3:1) ratio, more likely to murder whites, than whites are to murder blacks, in those circumstances where an additional aggravating factor is present (see C2). These are those crimes most eligible for the death penalty. That statistically projected ratio of 30:1 is hardly inconsistent with the 20:1 ratio for black offender(s)/white victim vs white offender(s)/black victim executions. The most relevant aggravated crime is robbery with injury, wherein blacks are 21 times more likely to be involved in such crimes as are whites. This 21:1 ratio represents 1.4 million black offender(s)/white victim vs. 68,000 white offender(s)/black victim for robbery with injury crimes (JFA, using BJS, 1977-84 data). IF overall murder statistics are consistent, within this crime category, as McCleskey et al suggests, then there is a 30-60:1 ratio of black on white vs white on black murders within this robbery/murder category. (From 1977-1984).
January 7, 2010, 3:52 pmChrisTS says:
I’m sure J. S. Mill agrees.
The problem is that we humans are not capable of fairly or accurately distinguishing between those who ‘deserve’ death and those who do not.
Not to mention that many of us do not think any state has the moral right to kill one of its members.
January 9, 2010, 11:03 pm