The Volokh Conspiracy

Schwarzenegger's written denial here.

Following some of the previous posts at this site on the Tookie case, see footnote 5 on page 4 of the denial. "Williams’ perennial nominations for the Nobel Peace Prize and Nobel Prize in Literature from 2001-2005 and the
receipt of the President’s Call to Service Award in 2005 do not have persuasive weight in this clemency request."

At first glance, it's a strong opinion. And Schwarzenegger got it right.

He lived 20 years longer than his victims. I hope this ends the trend for postponing and appealing executions until the original crime seems like ancient history. Right now there's someone on the radio ranting about black people and genocide. I'm glad it'll be over tonight.

I hope he does win the Nobel Peace Prize. Maybe a dual prize with Tookie and Cindy taking top honors. His share of the money to be given to his victims' families and hers for perpetual care of her poor son's grave.

If man will not, then may God have mercy on his soul.

Seems like the right decision for the right reasons.

I hope he does win the Nobel Peace Prize. Maybe a dual prize with Tookie and Cindy taking top honors. His share of the money to be given to his victims' families and hers for perpetual care of her poor son's grave.

I know that wasn't really serious, but FYI, you can't win the Nobel posthumously.

I take no position on the clemency issue in this case. It does seem to me, though, that there was one good argument for it in this case that is rarely present: it would reward his efforts to do good works after he was imprisoned. If more people on death row felt an incentive to try to improve the world as he did, we might all benefit.

I was disappointed not to hear Governor Arnold say, "You're Ter-min-ate-d."

Sure, it wouldn't have been appropriate, but it would have been funny as hell.

the people of california sentenced him to death; even if his books did do any good (I read there was less than 50 of them sold), that does not address the crimes committed, and the will of the people of california.


[Dave Kopel here. I've also heard the "less than 50 sold" stuff, but I don't think it's true. I looked up his books on Amazon.com, and based on the sales ranks, there must have been far more than 50 sold. No sensible publisher, no matter how extreme its politics, would give a book contract to someone whose previous book had only sold 50 copies.]

Can someone explain -- or provide a link to an explanation -- how so many posters on a purportedly pro-libertarian web site are so strongly in favor of the death penalty? Isn't granting the government the right to kill its own citizens the antithesis of "limited government"?

Federalist, given the widely accepted concept that killing is "worse" than imprisoning, I don't think the idea that once you give the government some sort of power over an individual, you have no principled way of arguing for the government to have complete power over the individual, is one that liberterians generally support.

steveh2: Because most of the posters aren't libertarians, they're conservatives.

Justin,

How does a sentence of life in prison, without the possibility of parole, not constitute "complete power over the individual"?

I have two responses on the imprisonment vs death issue.

First, death is clearly a greater exercise of power than imprisonment.

Second, I would imagine that strongly committed libertarians/small-government-types would grant the government the power to protect itself and its society, which would thus justify imprisonment as necessary to prevent crime. This could justify capital punishment IF it were shown that capital punishment actually protected society, i.e., deterred crime, and did so more effectively than imprisonment. This, of course, is subject to doubt.

Can anyone post a link to where this issue has been discussed?

steveh2:

I don't have a link handy for you, but as far as I know libertarians are not per se opposed to judicial purposes other than crime deterrence/prevention. That is, I think one can be libertarian and still accept, e.g., punitive or retributive purposes. Though I'm open to counter-arguments.

The DP does prevent crime. No executed murderer has ever re-offended, but many imprisoned murderers have re-offended.

And every innocent person executed has continued to not kill people. It's a win all around!

Owen, can you name an innocent person who has been executed, or are you dealing in hypotheticals? I can name a real murderer who re-offended because he wasn't executed, probably lots of them with a little research.

Just from an environmental standpoint..in his over 20 yrs on deathrow Tookie has used over 3million Litres of Oxygen, who knows how many gallons of water for his personal hygiene and laundry, and even in his last moments..that sodium pentothal,pancuronium,and potassium could be used in non lethal doess on some really sick patients..that stuffs not free you know. Oh and the paper used in his appeals probably killed 1/2 the redwoods in yosemite.

Personally, I'm not opposed to the death penalty in theory, but in practice lots of innocents get condemned. As Williams is clearly not innocent, and his crimes were clearly brutal and horrific, I have no problem with the sentence.

As he refused to admit his guilt, I have no problems with the execution. Repentance cannot come without admittance of guilt, and forgiveness should not come without repentance.

May God, if there is a God, have mercy on his soul, if he has a soul.

"Can anyone post a link to where this issue has been discussed?"

If you are referring to the deterrent effect of the death penalty, the studies are mixed. Most studies done by economists show a deterrent effect. Most studies done by sociologists show that there is not a detterent effect.

There is a good article forthcoming in Michigan Law Review that posits that the deterrence effect is related to the extent of executions. In brief, the data supports the thesis that either 1) banning the death penalty completely or 2) executing people on a very regular basis can reduce murder rates. Getting stuck in the middle, e.g. having a small number of high profile executions, is the worst option for a state.

This thesis would seem to suggest that the most common argument on each side of the debate (Pro deterrence: killing lots of people scares criminals straight. Con deterrence: Allowing the state to kill delegitimizes life, encouraging violence) might both have some truth. Thus, states that kill, but don't kill often enough to scare criminals, are missing out on obtaining either benefit.

Justin:

Deterrance encompasses both specific deterrance (Williams can't kill anymore because he is dead) and general deterrance (other potential killers will see Williams' execution and (hopefully) think twice before following his path).

Specific deterrance is easy to measure. General deterrance is hard to gauge because you either have to rely upon violent crime stats (an increase or decrease to which could be caused by any number of factors) or you have to find people who are willing to admit that they would have killed but for the likelihood of receiving the death penalty.

But I'll buy xx's thesis that the more you execute, the more the general deterrant value of the death penalty (and vice versa). I don't know how you'd measure this, but I would hazard to guess that there is a greater general deterrant value to the DP in Texas, where the DP is the rule for murder and a term of years is the exception, then in other states, where a term of years or life w/o parole is the rule and the DP is the exception.

Tookie is being given the respect of being allowed to follow his life's philosophy to its logical conclusion. He didn't believe in protecting innocent life when he had it in his power and it didn't serve his interests to protect it. Why would he expect his life, even if innocent, to be protected when it is in the power of others, and it does not serve their interests to protect it?

He did not believe in black solidarity. His gang preyed and continues to prey mostly on black folks. Like an inverse Robin Hood, they steal from the poor and give to the rich. Why would he expect black people to be in solidarity with him?

He did not believe in generosity and forgiveness. He believed in the main chance, and looking out for Number One. Tavis Smiley did an interesting radio interview with the guy a few days ago. When it came to whether joining a gang was a bad idea, Tookie spoke freely and with conviction. (It was surely a bad idea for Tookie.) When it came to the four murders, Tookie spoke slooowly and with much careful thought. He was very, very careful not to let slip any hint of a shade of an admission that, yeah, maybe he did do it.

Why not? What can a man fear who is scheduled to be executed in 48 hours? Well, clearly Tookie was still hoping for himself, hoping someone somewhere would believe he might be innocent -- which means he couldn't possibly admit he might be guilty. Now, he could have used his last chance to speak to take responsibility, to be a real man, like he yammers on about in his books. He could have freely given up his right to life -- OK, they're right, I done it -- in exchange for maybe saving the life of another. He could have spoken of the horror that resulted from his crappy decision making, maybe used that time on the air, with maybe half a million black folks listening to him, to dissuade just one young black man from making Tookie's choices. What could be more grimly persuasive than a personal appeal from a man about to die for his crimes?

But Tookie didn't do that. He was still looking out for Number One, and I expect he'll be doing so right up until the juice starts flowing. Probably making Pascal's wager by praying harder than he's ever done before, just in case there is a just and merciful God to receive his soul.

That being the case, he can hardly blame society for being equally selfish, and deciding that he's just too much trouble to watch, and that his death can serve as an interesting lesson to others, and not really giving a rat's fart about Tookie qua Tookie.

Someone asked for an example of wrongful executions. Here is a link to a site that lists many such examples (some of them only "possibly" wrongful, but given that the person was executed before that "possibly" could be lifted, there's no way to tell).

link

To all:

The question has been raised about whether libertarians can be pro-death penalty. I have a similar question. I'm wondering if any of the pro-death penalty posters are Christian. If so, how do you reconcile your support of the death penalty with a Christian notion of compassion/forgiveness, and the broadly Judeo-Christian dislike of vengeance or "playing G-d"? I don't mean to criticize; I'm just interested in Christian justifications of the death penalty.

Also, if you are pro-death penalty and anti-abortion, I'm also interested in knowing justifications. For this latter issue, I don't believe it's a very strong argument to say the human fetus is "innocent" while the executed human is "sinful" for two reasons:

1) We, as pro-lifers, don't often argue against abortion because these children are innocent. We say they are human beings. I guess we must assume their innocence, but I don't think that if they actually weren't completely innocent, we would suddenly support abortion. Especially since we know that these humans, once they are born, will not be innocent for very long. Like all humans, with our natural failings, we commit sin.

2) We are all sinful. Should the more innocent in our society be protected more than the more sinful? How do we determine this sliding scale of sinfulness? Do we just use legal violations as a substitute? In this sense, is a murderer in our country more sinful that a Stalin or Hitler because their laws allowed them to commit the acts that they did?

There's also the Roger Coleman case in Virginia. Coleman was put to death despite serious questions about his guilt (which are detailed in John Tucker's book May God Have Mercy). Gov. Warner has been urged to test Coleman's DNA to settle the dispute once and for all and has yet to make a decision. His non-action is despicable. Either Coleman did it, and those of us who believe he didn't will be silenced. Or he didn't, and the real murderer has escaped. I guess some people, apparently some on this blog, don't want proof of an actual innocent being killed, although I bet they'd find a way of rationalizing that away too.

Wasn't Jesus executed? Wrongfully for sure,but it wouldn't have been near as cool if Jesus had just escaped from prison. We'd still be worshiping trees and greek and roman gods.

cfw: I can see why your argument has some persuasive weight, but TW's attorneies' failure to argue it definitely isn't "another case of bad lawyering." If I had lawyers writing a clemency request on my behalf to a republican governor who is generally supportive of the death penalty I would definitely NOT want my argument to ride on a position that could just as easily justify commuting the death sentences of 8 out of every 10 people on death row. Focusing exclusively on TW's unique acts was the way to go, it just didn't work.

In my opinion, adding the race and family history arguments would have actually decreased the chance that the request would have been granted. I am sure AS did some sole searching, and I suspect that during that process he also asked himself "What specifically do I say to my conservative voters if I commute this sentence." I think he, or his advisors, would come to the conclusion that the best way to paint the decision would be to focus on why TW was different from every other person on death row - why sparing him in particular did not commit him to commuting any other sentences.

In fact, I think the request failed because even the arguments advanced in the petition are suceptible to this criticism. TW is the only person (that I am aware of) on death row in CA who has written childrens books and been nominated for the Nobel Prize. But presumably, if AS had commuted his sentence, 10 other inmates would publish a children's book online and ask their mom to nominate them for the Nobel prize. Even the most limiting arguments TW's lawyers were able to make created a problem for the defense.

More generally speaking, an A+ brief has a consistent theme (or possible two) and argues it well. You get the plus for subtely playing up strengths. E.g. if you think Kennedy is the swing vote, you might support a proposition with a quotation by Harlan. You wouldn't quote Harlan, Brennan, and Black for the same proposition just to see what sticks. I don't think lifting the page limit changes the approach, just poses the hazard that you might go overboard and get the poor clerk who has to read your writing ticked off. This is especially true if you're assuming AS is actually going to read the thing. I think he only had about 3 pages of total dialogue to get through in Conan the Barbarian. . .

"In my opinion, adding the race and family history arguments would have actually decreased the chance that the request would have been granted. I am sure AS did some sole searching, and I suspect that during that process he also asked himself "What specifically do I say to my conservative voters if I commute this sentence." I think he, or his advisors, would come to the conclusion that the best way to paint the decision would be to focus on why TW was different from every other person on death row - why sparing him in particular did not commit him to commuting any other sentences."

First objective in these cases is to humanize the prisoner - father, mother, sisters, medical problems, education problems, drugs, abuse and neglect suffered. That helps explain how he came to do terrible acts. It always has a unique perspective - it would be why one would hire a John Roberts and Fitzgerald. On top of that, you might hit on bad lawyering below, if any. Then hit on race issues constructively. Each case has unique facts, so there is no insurmountable problem about do we grant clemency in every case like this? And I am not so sure the electorate in CA cares as much as you might assume about death vs. LWOPP. A decent number of victim families have said do not kill in my name. What was said by the families of TW's victims?

"In fact, I think the request failed because even the arguments advanced in the petition are suceptible to this criticism. TW is the only person (that I am aware of) on death row in CA who has written childrens books and been nominated for the Nobel Prize. But presumably, if AS had commuted his sentence, 10 other inmates would publish a children's book online and ask their mom to nominate them for the Nobel prize."

Good point. But you might be surprised about how the DP folks at SQ turn themselves around once they end up in heavily structured settings. Significant numbers write a lot, get married, become ministers, etc. I would call that a good thing, that we can and should encourage.

"Even the most limiting arguments TW's lawyers were able to make created a problem for the defense."

This supports my idea of putting in the conventional arguments (humanizing TW, describing him in three dimensions, over time), yes?

I am assuming the lawyers did this in court in habeas proceedings. If not, they must have had a really stubborn client (who did not want to get into painful memories of abuse suffered as a child?) or highly unconventional strategy. If so, why not summariaze the history of TW and his traumas growing up int he clemency papers that went out to the world?

We may assume it is easy for others to describe the abuses and humiliations they suffered, and blocked out, or abuses they witnessed but did not prevent, or abuses they inflicted. This sort of information is normally out there, but it takes a dedicated, sensitive investigating team to uncover it. Sometimes folks like TW say I will not get into it and will fire you, lawyer, if you start poking around, interviewing my mom, etc. This calls for lawyer/client diplomacy, which takes time.

"More generally speaking, an A+ brief has a consistent theme (or possible two) and argues it well."

AS may have said no more than 10 pages. Fine. But attachments could have included a life history declaration from a social historian, backed up by declarations from family members, school records, medical records, old photos, etc. Show the person in 360 degrees, over time. I did not see that. No psych testing, no declaration about mental health issues. I cannot see six years of solitary leaving no mental scars.

"I don't think lifting the page limit changes the approach, just poses the hazard that you might go overboard and get the poor clerk who has to read your writing ticked off."

Typical briefs in Cal Sup Ct exceed 100 pages. 100 pages here about TW over time (including original public and medical records as exhibits) would have made more folks sit up and take notice in a positive way, I suspect.

"This is especially true if you're assuming AS is actually going to read the thing. I think he only had about 3 pages of total dialogue to get through in Conan the Barbarian. . ."

AS looks like the type who would read and care. TW pulled himself up after years of solitary with, inter alia, body building.

Maybe Arnold looked at the autopsy photo of Tookies victim with 1/2 of her head blown off and the other 1/2 covered with shotgun pellet wounds. Ironically, it looks alot like the advanced terminator did after Arnold blew its head off with a shotgun in "Terminator 2". And even more ironically,,that movie was subtitled"Judgement Day"