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International Human Rights Law as Barring Sentencing Murderers to Life Without Parole?

The New Zealand Herald reports:

Foreign Affairs officials are warning the Government that its hardline sentencing and non-parole policy risk damaging New Zealand's international reputation.

They say National's "no parole for the worst murderers" policy and the proposed "three strikes and you're out" law could breach international obligations on torture and civil rights.

The Ministry of Foreign Affairs and Trade says such breaches would affect New Zealand's ability to influence other countries.

The ministry's advice, obtained by the Herald under the Official Information Act, says passing the laws "would pose reputational risks to New Zealand by resulting in international criticism".

The ministry has told the Government that no parole for the worst murderers — a National election policy — would enable "indefinite detention without the possibility of release", and would probably violate two human rights conventions monitored by the United Nations.

Act's "three strikes" policy, which imposes a life sentence with a minimum non-parole period of 25 years on the third "strike" offence, "may result in disproportionate sentences that could also breach the human rights obligations assumed by New Zealand (and most other countries)"....

Depending on how three strikes laws are implemented, they may indeed be unwise and unjust. The same might even be true of life without parole for some murderers — consider someone who is guilty of a mercy killing, or of killing in revenge against a brutal attack on his child (when such a killing is planned over an extended time, it probably would be murder rather than manslaughter). These, though, would be rare cases, especially as to the "murderers with previous [violent] convictions" that seem to be involved in this situation.

But I would pretty strongly resist any attempt to have our laws on these subjects be governed by "human rights conventions" that chiefly represent the views of elite lawyers in Western countries rather than of American voters, constitution-makers, or even judges (who at least have been appointed and confirmed by American elected officials and could in time be replaced by American elected officials). I would hope that New Zealand would take a similar view.

It's also important to keep in mind that the "international law"-based argument against the death penalty wouldn't be limited just to the death penalty, and in fact might end up being deployed against the very punishment that is often urged as a reason why the death penalty is unnecessary.

Hans Bader (mail) (www):
This is part of a very disturbing trend.

Spain, for example, won't hand over terrorists to us, unless U.S. prosecutors promise not to seek life imprisonment without parole.

Some liberal judges who most oppose the death penalty -- like Ninth Circuit judge Harry Pregerson -- also are very hostile to life without parole.

I suspect that if the death penalty were ever banned in the U.S., many death penalty opponents would switch gears to fighting life imprisonment without the possibility of parole.

That eliminates part of the cost argument for getting rid of the death penalty, since the armies of lawyers who currently delay death sentences might shift, in part, to fighting the imposition of life without the possibility of parole.
3.19.2009 1:31pm
Kazinski:
If New Zealand wants to set higher standards for itself than the rest world then let them. There is no reason for a rush to the lowest common denominator of sentencing standards.
3.19.2009 1:41pm
martinned (mail) (www):
I guess compared to the death penalty, LWOP is the lesser of both evils. They are both evil, though, since they both have little or no purpose other than to exact retribution. Both allow society to get its pound of flesh, that's it.

In addition, the argument above has also been made in Dutch law, which does allow for LWOP, though it is only imposed rarely. (i.e. about once or twice a year) It has been pointed out that the Dutch law on prisons states that one of the purposes of a prison sentence is to get the prisoner to better their life. Arguably, that forbids a life sentence unless parole is possible.
3.19.2009 1:45pm
Charlie (Colorado) (mail):

I guess compared to the death penalty, LWOP is the lesser of both evils. They are both evil, though, since they both have little or no purpose other than to exact retribution. Both allow society to get its pound of flesh, that's it.


I'd nominate this as the dumbest thing I've heard this week, but the competition is really tough.

In any case, though, it's incorrect: LWOP has one salutary result. It removes from the rest of society a dangerous person who otherwise might well do it again.
3.19.2009 1:55pm
Richard Aubrey (mail):
No surprise here.
The anti-cap pun folks point to LWOP as the humane alternative.
I'm convinced they have already composed, printed, collated and stapled their arguments about ending LWOP.
IOW, they're liars.
No surprise here.
3.19.2009 1:56pm
Dave N (mail):
I am not in the least surprised. As a death penalty prosecutor, I have been long aware that the next step for many death penalty opponents is to go after life without parole.

Indeed, we can see the genesis of it now, in both the actions of the ACLU and Amnesty International, in opposing sentences of life without parole for juveniles.

I have no doubt that if capital punishment were abolished nationwide tomorrow, the next target would be LWOP.
3.19.2009 2:00pm
JamesWN (mail):
@martinned (
Why is it eevil that society inflict revenge on a murderer -- assuming that no mitigating circumstances about the murder were discovered during sentencing?
Society is entitled to choose one penological theory over another. What irks me in particular with the human rights argument is the claim that the choice of penological theory should shorten the criminal's debt to society.
There is another irrebuttable argument in favor of LWOP -- that keeping a convicted criminal behind bars serves the purpose of incapacitation.
3.19.2009 2:03pm
1Ler:
"They are both evil, though, since they both have little or no purpose other than to exact retribution"

Wouldn't take that logic too far, friend. Without retributive limitations, petty theft could easily turn into life imprisonment. So I certainly think you're wrong to deem it "evil."
3.19.2009 2:03pm
Michael Ejercito (mail) (www):
We now know what the true motives of death penalty opponents are.

They do not want to protect innocent people from execution.

They do not want to protect the sanctity of human life.

They just sympathize with murderers.
3.19.2009 2:08pm
Anthony A (mail):
So certain "progressives" believe that New Zealand's policies violate international treaties, etc.

But do they? Which human-rights conventions do such policies supposedly contravene? What are the actual statements in those conventions?

Why should we, or the NZ Government, believe a functionary whose job is kissing foreigners' a***s on the issue of NZ's international reputation, when the evidence suggests that a country's reputation doesn't depend much on how effective its professional diplomats are?

On the other hand, it's entertaining to conceive of an International Convention on the Rights of Victims of Crime which would punish (with a severe tongue-lashing) states which fail to lock up murderers for long periods of time, or which fail to catch and prosecute criminals.
3.19.2009 2:10pm
Kirk:
The Ministry of Foreign Affairs and Trade says such breaches would affect New Zealand's ability to influence other countries.
Hmmm, where's the "narcissism" tag?
3.19.2009 2:10pm
Dave N (mail):
Martinned,

I think life without serves two purposes beyond retribution: it acts to both protect society and to punish offenders who commit horrendous crimes or who have proven through repeated conduct that they are incapable of living free in society.

I find none of these reasons for LWOP to be "evil." As I have said in other contexts, there are people some people who are so evil that I don't care if they drool uncontrollably and don't remember what planet they live on; they have forfeited their right to ever live free.
3.19.2009 2:15pm
A. Zarkov (mail):
martinned:

You seem to live in a world of abstractions far removed from the reality of human existence. The reason we have the state take retribution against those who have wronged us is to replace private vengeance with an orderly and rational public vengeance. Like it or not people want vengeance and you are not going to change that. If the state won't do it for them they will do it for themselves.

Let me ask you this question. Do you think humans have any kind of inborn nature, or do you think we are born as a completely blank slate? I think this is the threshold question that separates your thinking from many of us.
3.19.2009 2:16pm
A. Zarkov (mail):
I wonder how anti-death penalty judges would act if they became the target of a murderous campaign against them. I suspect they would discover the utility of deterrence pretty quickly and hand out very severe sentences including capital ones.
3.19.2009 2:19pm
martinned (mail) (www):

In any case, though, it's incorrect: LWOP has one salutary result. It removes from the rest of society a dangerous person who otherwise might well do it again.

There is another irrebuttable argument in favor of LWOP -- that keeping a convicted criminal behind bars serves the purpose of incapacitation.

Hardly. If that's the point, there is no need to exclude the possibility of parole beforehand. The task of a parole board is to examine whether the prisoner deserves to be released, and whether it would be safe to do so.
3.19.2009 2:20pm
JamesWN (mail):
Mohammed Bouyeri killed Theo Van Gogh in cold blood. But fortunately, the Netherlands is one of the snobbish European nations following martinned's nonevil penological theory.
Of course, keeping Bouyeri in jail for the rest of his life without the possibility of parole is more evil than letting him loose on the streets in 2030.
And what follows after LWOP has been abolished? Abolition of harsh conditions of confinement.
Look to Denmark, where the multiple serial killer Peter Lundin (his conviction in North Carolina is reported as State v. Lundin. NO. 931SC1065) is granted unsupervised intercourse with women whom he has established a penpal relationship.
Not only was Lundin allowed unsupervised (sexual) intercourse, he even conceived a child during his confinement without having to pay any child support obligations.
European penal policy is a joke.
3.19.2009 2:22pm
Wilpert Archibald Gobsmacked (mail):
Anthony A sez:
On the other hand, it's entertaining to conceive of an International Convention on the Rights of Victims of Crime which would punish (with a severe tongue-lashing) states which fail to lock up murderers for long periods of time, or which fail to catch and prosecute criminals.
I'm waiting for the UN to convene that convention. Should be coming along any day, now. Holding my breath. Wait for it. Just a few m................
3.19.2009 2:25pm
martinned (mail) (www):
@A. Zarkov: I think we as a people/species/society should strive to move past our baser instincts as much as possible. Of course the people want vengeance, but that doesn't mean the - note this next word - justice system should give it to them.

That's the problem I have with Judge Cassell's efforts for victim's rights, for example: the criminal justice system doesn't exist to represent the victim. It represents society as a whole. Making the whole thing relatively impersonal and formal is unsatisfying to the victim, but it benefits society by assuring that mistakes are avoided as much as possible, and that reason is given a chance to dominate over base instincts throughout.

Re: tabula rasa, I'd have to say that it is an implausible hypothesis, unless one were to water it down considerably. That said, the purpose of the law is to restrain our "inborn nature", not to encourage it.
3.19.2009 2:27pm
martinned (mail) (www):
@JamesWN: I'm afraid you've been misinformed. Mohammed B received a life sentence. Let me quote the wiki in case you don't believe me:


On 26 July 2005, Bouyeri received a life sentence without parole.

Life imprisonment is the most severe punishment in the Netherlands and is always without parole. Bouyeri is only the 28th person to receive this punishment since 1945, excluding war criminals. A life sentence is ordinarily seen only with multiple-homicide cases, but a new law introduced in 2004 also makes the sentence applicable for leaders of terrorist organisations. In addition, the Wet terroristische misdrijven ("terrorist crimes law", in effect since August 10, 2004), also states that, if there is a terrorist motive for a crime, the term can be increased by half. Imprisonments ordinarily in excess of 15 years can be upgraded to life imprisonment, as was the case with Bouyeri.
3.19.2009 2:29pm
Anthony A (mail):
Well, if the Netherlands has life without parole, then surely it's not against any international conventions.

The question remains on what grounds does the NZ foreign ministry base its claim, and how valid is that claim. Or is this just some bureaucrat trying to embarrass a government he doesn't like?
3.19.2009 2:33pm
PatHMV (mail) (www):
It is a shame that "international law" has become synonymous with this sort of meaningless, undemocratic garbage. Those who believe in any sort of "international law" (I don't, myself) really ought to take a more active role in shutting these people up and getting them to stop claiming cover of "international law" for their political goals.
3.19.2009 2:34pm
Dan Simon (mail) (www):
New Zealand is hardly alone. In Canada, when capital punishment was abolished (or rather, when the abolition was confirmed by parliamentary vote) in 1987, the maximum sentence whad been set to imprisonment for life, with no parole for a minimum of twenty-five years. Almost immediately, activists began complaining that twenty-five years was too long, and the Supreme Court ruled that convicted murderers had a legal right to a parole hearing after fifteen years.

The bottom line, as I've argued many times before, is that in the vast majority of cases, opposition to capital punishment is simply opposition to punishment, targeted--somewhat dishonestly, for tactical reasons--at the most severe punishment available. I sympathize with the sentiment--punishment is awful, after all, and I really do wish it never had to be imposed. But setting public policy based on that sentiment, however understandable it may be, is nevertheless a recipe for disaster.
3.19.2009 2:38pm
ShelbyC:

since they both have little or no purpose other than to exact retribution. Both allow society to get its pound of flesh



isn't preventing recidivism and deterance a purpose of them both?
3.19.2009 2:38pm
martinned (mail) (www):
@Anthony A: To my knowledge, neither the death penalty nor LWOP are illegal under (global) international law. The death penalty is forbidden by the 6th and 13th protocols to the European Convention on Human Rights, but, to my knowledge, not by any global treaty or other source of law.
3.19.2009 2:39pm
...Max... (mail):
martinned: how can society as a whole be represented? What is it, anyway? IANAL thus I tend to think of justice system as a safe[r] and [more] predictable alternative to peer-to-peer conflict resolution with fists, sticks and six-guns. It would appear that, in criminal cases, representation of victims -- actual and potential -- is the business of the prosecution. Representation of the accused is the business of the defense. The rest of the justice system ensures that the framework within which it occurs is equitable. You can argue that society (whatever it is) is served by the system, but I can't see the representation angle.
3.19.2009 2:40pm
Floridan:
While I don't necessarily disagree with EV's point in this post, I do think his use of the term "elite lawyers" is, at best, a distraction.

In fact, I would consider many of the lawyers who are a part of the Conspiracy to be among the profession's "elite."
3.19.2009 2:41pm
Blue:
This should be absolutely no surprise to anyone. LWOP is absolutely next on the target list. Then it will be long sentences. Then it will be prison conditions harsher than outside conditions.

I don't, honestly, see any end to the diminishment of punishment in the penal system should the criminal advocates get their way.
3.19.2009 2:41pm
PatHMV (mail) (www):
martinned,

You entirely ignore the long-term impact on society of removing the "emotions" and the victims so entirely out of the proceedings. Government exists because people cede power to them, to do things on their behalf which otherwise the people would do themselves. If government is seen as inadequate to protect us from criminals (without government, we would each be responsible entirely for our own self-protection and retribution), then popular support for that government, the very legitimacy of that government, will fall.

Penal policy shouldn't be 100% about the victim, of course, and their emotional and other interests, but neither should the goal be 100% removal of ALL emotional factors.

Your position is, ultimately, logically flawed as well. Who determines what is "objectively" just? There is no universally-agreed upon definition for what constitutes justice in general, much less as applied in particular circumstances. Even if one were to accept, for the sake of argument, that a term of imprisonment should be for only as long as is necessary to reduce the risk of re-offending to, say, below 5%, there is no way to actually objectively calculate that likelihood. If you expand the legitimate scope of imprisonment as to also include its deterrent effect on others, then you're entirely in the realm of speculation. There's no such thing, ultimately, as "objective" in any of this. Yes, we can and should remove emotion as much as possible from the issue of "did X commit the crime of Y by taking the actions A, B, and C?" But what to DO about that crime, once it's determined that X committed it, that inherently depends on value judgments. And in a democracy, it is the people of the country that get to make those value judgments, not self-righteous, ignorant, jet-set elites in far-off places.
3.19.2009 2:42pm
A. Zarkov (mail):
martinned:

Of course the people want vengeance, but that doesn't mean the - note this next word - justice system should give it to them.

Why should the justice system not give it to them? Don't you see that if people don't get pubic vengeance they will extract it themselves? How do you propose we avoid private vengeance? You admit that humans have a nature and that nature includes the need for vengeance, but yet you propose we frustrate that need and simply endure the consequences
3.19.2009 2:44pm
JamesWN (mail):
@martinned (
Well, Mohammed Bouyeri was sentenced to life imprisonment which is not equivalent with LWOP. So unless life in Bouyeri's case actually means LWOP there remains the possibility that he will be out before his natural death.
This, according to my own penological theory, is pure evil.
3.19.2009 2:44pm
Michael Ejercito (mail) (www):
What is wrong with vengeance? God uses vengeance when he sends sinners to burn forever in the lake of fire.
3.19.2009 2:45pm
martinned (mail) (www):
Adding to my previous comment, there are a series of UN General Assembly Resolutions calling for a moratorium on the death penalty. (Most recently UNGA res. 63/168.) Such resolutions, however, are not binding. Occasionally, they are taken by the courts as evidence of the existence of a norm of unwritten international law, but that certainly doesn't apply here, given the number of votes against (46, 34 abstentions) and the clear emphasis with which countries like the US continue to insist on the legitimacy of the death penalty.
3.19.2009 2:45pm
A. Zarkov (mail):
I invite people to speculate on why the left seems to oppose all but the mildest of punishments? Are they afraid that they themselves will end up getting punished one day and want to play it safe? Or does this opposition come from a deep seated antipathy to traditional western values. Do they want criminals to help them destroy the culture they hate so much?
3.19.2009 2:52pm
JamesWN (mail):
Even though Wikipedia states that life imprisonment in The Netherlands is equivalent with LWOP, there remains confusion over whether executive clemency may b granted.
For example, in the Nordic countries, the law provides for life imprisonment, but there is apparently no categorical bar to clemency under all circumstances.
3.19.2009 2:53pm
...Max... (mail):
Well, wanting to play it safe is a legitimate interest given the overwhelming power of the state over individual... but I'd say that it would be much more important to restrict the ability to inflict punishment rather than the range of punishments that can be inflicted. To me personally the difference between not being convicted and serving a year in prison is much bigger than between ten years in prison and death penalty. The latter two are, effectively, unthinkable. At the same time I'd much rather see a dangerous murderer hanged than kept behind bars for ten years only to be released back to ply his trade afterwards.
3.19.2009 2:59pm
martinned (mail) (www):
@JamesWN: Since I figured you might say that, I quoted that section of the wiki-page. No parole for mr. Bouyeri.

@A. Zarkov: It's also in people's nature that they occasionally feel the urge to shoot someone. Are you arguing that society should shoot instead? How about sex in the street, if the urge strikes someone? Should that be allowed? Our ability to ignore our (base) instincts is what separates us from the animals. Let's be glad about that.

@PatHMV: Let me just quote some of your remarks, to make my reply more understandable:


If government is seen as inadequate to protect us from criminals (without government, we would each be responsible entirely for our own self-protection and retribution), then popular support for that government, the very legitimacy of that government, will fall.

This is output legitimacy, one aspect of the overall concept. I would like to emphasise that I've said nothing about the argument that severe punishments reduce crime. To the extent that this could be shown, it would be an acceptable argument for very long prison sentences, though not for the death penalty. I'm not sure though, what the additional deterrent effect is of excluding parole compared with the possibility of requesting parole after serving a couple of decades.


Penal policy shouldn't be 100% about the victim, of course, and their emotional and other interests, but neither should the goal be 100% removal of ALL emotional factors.

I'm not sure. Over here in the Netherlands, where we have no juries, criminal trials are a lot more sober (and short) than US trials. (The Mohammed B trial lasted just two days, for example, with the court's ruling handed down two weeks later.) Adding to this a right to speak for the victim or, in this case, the victim's family, seems unlikely to make them feel better. But maybe I'd talk differently if I'd been the victim of a serious crime.


Your position is, ultimately, logically flawed as well. Who determines what is "objectively" just?

The people, through their elected lawmakers, and the courts based on carefully developed jurisprudence.


And in a democracy, it is the people of the country that get to make those value judgments, not self-righteous, ignorant, jet-set elites in far-off places.

On this we certainly agree.
3.19.2009 3:00pm
Bob from Ohio (mail):
Why punish murderers at all?

The Dutch convict doctors of murder and then do not punish:


Dr Chabot was convicted under Article 294, therefore, not because the defence of necessity could not apply in a situation where a patient's suffering was of the kind experienced by Ms B. Rather it was because he had not ensured that Ms B was actually examined by another doctor before he assisted her suicide.

Despite finding Dr Chabot guilty, in view of 'the person of the defendant and the circumstances in which the offence was committed', the Supreme Court declined to impose any punishment.



Since the Supreme Court ruling in the Chabot case, the Dutch courts have inspired further controversy in two cases in which doctors ended the lives of severely disabled infants, who were in severe pain and were expected to die within months. In April 1995 the District Court in Alkmaar found Doctor Henk Prins formally guilty of the murder in 1993 of a baby girl who had been born with a partly formed brain and spina bifida, by giving her a lethal injection after consultation with her parents and other doctors. The court refused, however, to punish the doctor. In November 1995 the Amsterdam Appeals Court affirmed the lower court's decision.(163) It did so on the basis that the doctor had adhered closely to the guidelines that regulate active voluntary euthanasia, had acted at the explicit request of the child's parents, and generally had behaved 'according to scientifically and medically responsible judgments, and in line with ethical norms'. A week later, the District Court in Groningen reached an almost identical conclusion in another case where a doctor had been charged with murder for administering a lethal injection to a severely disabled baby.



Yet murders spending life in prison is "evil".
3.19.2009 3:00pm
Clayton E. Cramer (mail) (www):

I guess compared to the death penalty, LWOP is the lesser of both evils. They are both evil, though, since they both have little or no purpose other than to exact retribution.
I agree: this is one of the dumbest statements I've read all week.

There are people whose are utterly incapable of stopping their impulse to do evil. Many child molesters are repeat offenders, no matter how many times they are arrested, convicted, sent to prison, and counseling. There are rapists who clearly cannot stop what they are doing. What's the alternative to locking them up for life?
3.19.2009 3:03pm
Nathan_M (mail):

Almost immediately, activists began complaining that twenty-five years was too long, and the Supreme Court ruled that convicted murderers had a legal right to a parole hearing after fifteen years.

You write that like there is a potential ambiguity to the law or there is some possibility the courts in Canada are wrong. That is not the case, the Criminal Code is very clear.


745.6 (1) Subject to subsection (2), a person may apply, in writing, to the appropriate Chief Justice in the province in which their conviction took place for a reduction in the number of years of imprisonment without eligibility for parole if the person

(a) has been convicted of murder or high treason;

(b) has been sentenced to imprisonment for life without eligibility for parole until more than fifteen years of their sentence has been served; and

(c) has served at least fifteen years of their sentence.


Contrary to what you say, in most cases offenders who apply under this section are not granted a parole hearing.
3.19.2009 3:07pm
epeeist:
What, no comment about U.S. 3 strikes laws?

What International Human Rights standards are supposed to be infringed by LWOP? I haven't reviewed the ICCPR and Convention against Torture recently, but I don't recall having read about any such interpretation elsewhere.

Although I am strongly opposed to the death penalty, it's primarily because of the number of wrongful convictions I read about even in e.g. U.S. and Canadian legal systems (people being freed on DNA or other strongly exculpatory evidence after 5, 10, 15, 25 years), etc. not moral objection to execution per se (though I certainly agree there are some murderers who as noted in the original post seem more deserving of sympathy than others so in some cases I would also object on that basis). So I do find it annoying when people lump all objectors into the same boat.
3.19.2009 3:14pm
martinned (mail) (www):
@JamesWN: Under art. 558 of the Dutch Code of Criminal Procedure, a royal pardon is possible for any criminal sentence. I can tell you more about Dutch law and practice in this area, but do you really want me to?
3.19.2009 3:14pm
Kazinski:
Martinned:
and the clear emphasis with which countries like the US continue to insist on the legitimacy of the death penalty.

Because in the United States the people are sovereign, in countries like New Zealand, UK, France, they don't let the people vote on things like the death penalty or prison sentences.

In California and Washington, which pioneered the Three Strikes laws, they were initially implemented directly by the ballot. The Hard Time for Armed Crime law in Washington was also implemented by a direct vote of the people.

We try not to let the elites tell us what to do, or what to think.
3.19.2009 3:15pm
martinned (mail) (www):
@Bob from Ohio: Do you have a problem with euthanasia in general, or just with this ruling in particular?

@Clayton: As noted, anyone who continues to be a threat should not be paroled. That doesn't mean their ability to petition for parole should be eliminated altogether.
3.19.2009 3:17pm
rosetta's stones:
Bleh..... lawyer penology talk. All I can say is no judge or politician should ever be caught on the wrong side of a case involving violent crime recidivism, or it will stick to you.

Prompts some questions for political and judicial candidates here though.

Do you advocate the introduction of international norms and laws to overide those originating domestically?

Will you actively seek them out?

Will you consider them if presented to you?

Have you ever visited Davos?
;)
3.19.2009 3:17pm
PatHMV (mail) (www):
martinned said:

Adding to this a right to speak for the victim or, in this case, the victim's family, seems unlikely to make them feel better. But maybe I'd talk differently if I'd been the victim of a serious crime.


I can assure you, based on significant professional experience in this area, that you almost certainly would.

A few years ago, part of my job duties for our state's governor included reviewing and advising him on clemency applications. I went to numerous hearings of the pardon board, and talked to a lot of victims (and a lot of criminals and their families as well). For many victims, the pardon hearing was the very first time they ever had a chance to tell their story, to tell a court of any kind what this criminal had done to them, the effect he had had on their lives. The experience was invariably cathartic, and the victims felt much, much better just because somebody listened to them.

I had the same experience as a prosecutor. I reached a plea agreement with a particularly loathsome "white collar" criminal, who had stolen the life savings of a hard-working family. As part of the deal, I insisted on a sentencing hearing, to give the victim and his family an opportunity to testify, in open court, about the damage this monster had done to the victim and his entire family. I encouraged the victim's siblings to attend (part of the money stolen was their father's inheritance, and the siblings for years believed the victim to be in cahoots with the criminal, causing even MORE damage to the entire family). I can assure you that they felt MUCH better just for having had the opportunity to speak. In fact, the scum-bag criminal probably got a year or two less on his sentence because we gave the judge some discretion by having the hearing, whereas I could undoubtedly have required the criminal to agree to a specific term slightly longer than what he was actually given. I discussed that possibility with the family, and they most certainly preferred the opportunity to testify.

As I've told you before, we punish crimes BOTH for their impact on society (breach of the king's peace) AND for their impact on the individual victims.

It's interesting that many people who don't think victims should have any rights in criminal proceedings, and shouldn't be heard at all, also think we shouldn't ever prosecute criminals who commit "victimless" crimes (not saying that's you, martinned, as I don't know where you stand on victimless crimes).
3.19.2009 3:21pm
martinned (mail) (www):
@Kazinski: Do yourself a favour, read the constitution. Here's what James Madison said about those horrible elites. (Federalist NO. 10)


The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended.

The effect of the first difference is, on the one hand, to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation, it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose.

P.S. Please accept my apologies in advance if this sparks some great "What would the Founding Fathers do/say?"-discussion...
3.19.2009 3:22pm
Putting Two and Two...:
I actually went back and checked the archives to see if Prof. Volokh offered a similar defense of local jurisdiction in his thread about the Saudi grandmother sentenced to lashing and deportation.

No defense. No condemnation either. Just an intro.

I'm sure an "elitist" Westerner would have had something to say about it. No "elitists" around these parts, of course.
3.19.2009 3:24pm
martinned (mail) (www):
@PatHMV: I think if I were a victim, I think I'd feel like an idiot talking to this criminal (=idiot), wasting my own time and everybody else's. In those rare cases where a civil suit is possible, that would certainly make me feel better. (Which is why Dutch criminal trials already have the possiblity of combining the trial with a civil suit, thus sparing the victim the need or the expense of starting a separate case.)

As for victimless crimes, the absence of any harm should certainly be a strong indication that the behaviour in question should not be illegal. (Cf. J.S. Mill &friends) That's why I am quite pleased that things like euthanasia and prostitution are legal here.
3.19.2009 3:26pm
Clayton E. Cramer (mail) (www):

I invite people to speculate on why the left seems to oppose all but the mildest of punishments? Are they afraid that they themselves will end up getting punished one day and want to play it safe? Or does this opposition come from a deep seated antipathy to traditional western values. Do they want criminals to help them destroy the culture they hate so much?
Three diffferent reasons, often held by different sets of leftists:

1. If crime is caused by the evils of our capitalist system, then the capitalists should be punished for their actions, not the poor victims of the evil system that forces them to be criminals.

2. Limited contact with actual victims of serious crimes. It is very easy to get focused on how bad things are for the monsters when you don't see people trying to pick up the shattered pieces of their lives.

3. At least in the United States and Britain, the criminals are disproportionately blacks. It is very easy if you are a leftist, guilt-ridden about the wealth that Mommy and Daddy left you (think Stewart Mott) or more rarely, that you created yourself (think Barbara Streisand), to imagine that because punishment disproportionately falls on blacks, therefore punishment as a concept is wrong.

California Supreme Court Chief Justice Rose Bird was an especially absurd example of this. I have never been a supporter of the death penalty, but I can remember being especially infuriated by one of her dissents. It involved a guy who had been sentenced to death for breaking into an old woman's apartment, raping her, then murdering her. Bird's dissent explicitly argued that because he was an illiterate, arguably retarded black man, the majority should be ashamed of what it was doing. His race was completely irrelevant to the case. Bird's implicit message, like that of most leftists, is that a black man just can't control the urge to rape and murder, and therefore shouldn't be judged by the standards of white people.

What makes this especialy absurd is that in the U.S., at least, the victims are also disproportionately black. So all this rich leftist guilt ends up putting black people in especially bad circumstances, as the monsters who prey on other blacks are released. You will notice that the same sympathy and concern doesn't ever seem to be present for neo-Nazis who commit hate crimes.
3.19.2009 3:27pm
David M. Nieporent (www):
@A. Zarkov: I think we as a people/species/society should strive to move past our baser instincts as much as possible. Of course the people want vengeance, but that doesn't mean the - note this next word - justice system should give it to them.
Perhaps you should note that word. It's not the "rehabilitation system." It's the justice system. Punishment is not mere "revenge," but a part of justice. In fact, Kant argued that it was a wrong not just to society or to the victim, but to the wrongdoer himself not to punish him.
3.19.2009 3:35pm
Clayton E. Cramer (mail) (www):

Clayton: As noted, anyone who continues to be a threat should not be paroled. That doesn't mean their ability to petition for parole should be eliminated altogether.
The history of parole boards in California, both because of leniency and because of equal protection challenges, is one of the reasons that California went to determinate sentencing.

Time dims memories, and eventually, the victims and their survivors are not around to protest when monsters are released. Does anyone seriously think that Charles Ng will ever be suitable for parole? What about the monster who tortured to death a two year old girl while raping her? (I've forgotten his name, but Bird did her best to make sure that he didn't get death, arguing that his diaries, filled with fantasies of raping children, shouldn't have been seized during a search. (Although the tool marks from the channel locks on the toddler's leg was sufficient proof.)

We'll parole Charles Ng to your neighborhood, Martinned. We'll hope that he doesn't make the news again.
3.19.2009 3:37pm
Anthony A (mail):
martinned - "As noted, anyone who continues to be a threat should not be paroled. That doesn't mean their ability to petition for parole should be eliminated altogether."

Where one can trust the parole board to actually make reasonable judgements which take into consideration the benefits to society of keeping someone locked up, that may be reasonable. In California, there isn't any basis for that trust, given the past record. We still have parole boards, but we do sentence some criminals to sentences which do not allow parole.

Oh, and euthenasia is *not* a victimless crime. I generally believe that if there isn't provable harm to a particular individual (or legal person), that the criminal law is not the right way to repress the activity, but an action which leaves someone dead is rather hard to call "victimless".
3.19.2009 3:39pm
martinned (mail) (www):
@David M. Nieporent: But does that mean that revenge alone is enough justification for the punishment, if other common justifications, including rehabilitation, should prove inapplicable?

(I hope that nothing I've written here rules out retribution altogether as a justification for punishment. The section you quoted certainly didn't. I just don't think it is enough unless additional justification exists.)
3.19.2009 3:39pm
DangerMouse:
I invite people to speculate on why the left seems to oppose all but the mildest of punishments? Are they afraid that they themselves will end up getting punished one day and want to play it safe? Or does this opposition come from a deep seated antipathy to traditional western values. Do they want criminals to help them destroy the culture they hate so much?
3.19.2009 2:52pm


It comes from a simple hatrid of middle class, traditional values. Libs hate the idea of a nice, well ordered society that has little crime - it's too "conformist" to them, too 1950s. They love rebellion and disorder against "the man" because they believe that a society that is clean, neat, traditional, ordered, and law-abiding is a farce. That sort of society is inherently patriarchial, privilged towards whites and the "ruling class", and a complete sham. The so-called "law abiding" people are themselves the crooks, who oppress innocent women, children, minorities, sexual deviants, etc.

That's why libs are always protesting. Its why libs always denounce the founding fathers as worthless slaveholders. It's why libs think rebellion is inherently good. This is a moral issue for them. By rebelling against a whitebread, conformist traditional society, people are "breaking free" and "being true to themselves."

Libs don't necessarily like crimes like murder, per se. Their level of outrage depends on whether the perpetrator and the victim is a person who can be deemed a supporter or an "oppressed person" of the traditional power structure. If the perpetrator is a person who can be deemed a supporter of the traditional power structure, like a white man who goes to Church, then libs want to throw the book at that person and burn him at the stake. However, if the perpetrator is "oppressed" by the traditional power structure, then the excuses for criminal behavior will multiply.

So yes, it is hatrid of the culture and of western values.
3.19.2009 3:41pm
IPLawyer:

"New Zealand's ability to influence other countries."




lolz
3.19.2009 3:41pm
martinned (mail) (www):
@Clayton E. Cramer &Anthony A.: If parole boards are broken, fix them. Why not bring the question before a proper court? Why not mandate that the victims be heard? Why not even put the question to a jury? (When I looked up the law on pardons earlier, I noticed that the convicting court has to be heard about any later pardon request. In a number of other circumstances, too, it is the convicting court who decide on the release of the prisoner under Dutch law.)

@Antony A.: If we agree to a boxing match, is that a (victimless) crime? Someone (most likely me) will certainly end up K.O... Seriously: how is someone who gives consent a victim? In tort law, this is called volenti non fit injuria.
3.19.2009 3:45pm
NowMDJD (mail):

They are both evil, though, since they both have little or no purpose other than to exact retribution.

It is predictable that certain people will be recidivists. For example, there is a triad of bedwetting, cruelty to animals and fire-starting that is highly predictive of a career of violent crime cannot be modified by treatment. At least in such cases, the perpetrator should be kept in prison for life. Another example of someone who should not be paroled might be someone who kills for political or religious motives. Nothing such a person says to a parole board will be credible, and they are unlikely to feel remorse or to abstain from ideologically-motivated violence.

I would emphasize that parole is not pardon or clemency. In the US and its states even prisoners imprisoned for life without possiblility of parole can be released by executive act. This is a remedy if circumstances warrant.
3.19.2009 3:45pm
PatHMV (mail) (www):
martinned, if criminal justice is not about providing justice to the victims, why does the "victimless" nature of certain crimes matter? The people in their collective judgment have determined that some actions injure society as a whole and the participants in that crime. If criminal justice is all about society and none about the individual victims, then there's no logical reason to punish "victimless" crimes any less.

Of course, I have no way of knowing how you, personally, would behave should you be the victim of a crime. All I can say, having seen a LOT of victims, is that I've never met any who approach it as you think you would. It's not about financial recompense (the only point of any civil suit), it's about getting JUSTICE for yourself and the wrong done to you. Of course it's impossible to actually bring back the life of a murder victim, or to be "un-raped," or even to remove the trauma of "just" being robbed at gun- or knife-point. But victims can and almost always do (in my experience) feel better, feel a bit restored, when justice is done and the guilty parties are punished because of the harm they did to that victim, particularly when the victim has a formal opportunity to describe that harm.

Not all victims want to, of course. Some are too traumatized and, like the courageous Elizabeth Feitzl, do not want to have to confront their abuser again. But most feel empowered by the opportunity to confront those who did them harm.
3.19.2009 3:45pm
Michael Ejercito (mail) (www):

His race was completely irrelevant to the case. Bird's implicit message, like that of most leftists, is that a black man just can't control the urge to rape and murder, and therefore shouldn't be judged by the standards of white people.

One reason Bird was not retained.

That same argument could be used to "justify" the abolition of legal protections for black people.
3.19.2009 3:50pm
...Max... (mail):
@PatHMV:

It's interesting that many people who don't think victims should have any rights in criminal proceedings, and shouldn't be heard at all, also think we shouldn't ever prosecute criminals who commit "victimless" crimes

What about an inverse correlation: if one assumes that the standing of the prosecution comes primarily from representing the victims (wasn't that a common situation in 17-th century England? When victims represented themselves in criminal matters, and were responsible for arresting the perpetrator and bringing him to the magistrate?) then victimless crimes are a misnomer as such.
3.19.2009 3:50pm
martinned (mail) (www):
@DangerMouse: Even though I hardly think I qualify as a "leftist", I would offer that the desire for revenge is more of a working class phenomenon than a middle class one. In my experience, most ordinary law-abiding middle class citizens don't have the stomach for anything too severe.
3.19.2009 3:50pm
PatHMV (mail) (www):
Clayton, amen. After enough time passes, the focus almost always turns to the "poor prisoner," and memories of the crime itself blur in the distance... often because the lives of even the survivors of the murders are shortened because of what was done by that "poor prisoner" to their loved one.

Oftentimes, the reason the criminal has been a "model inmate" is because he thrives in the ordered, structured, controlled world of prison. This is demonstrably (based on recidivism rates) NOT an indication that they will fare well (i.e., avoid further crime) on the outside.
3.19.2009 3:51pm
Michael Ejercito (mail) (www):

His race was completely irrelevant to the case. Bird's implicit message, like that of most leftists, is that a black man just can't control the urge to rape and murder, and therefore shouldn't be judged by the standards of white people.

One reason Bird was not retained.

That same argument could be used to "justify" the abolition of legal protections for black people.
3.19.2009 3:51pm
martinned (mail) (www):
@PatHMV: It is difficult to see how a crime with no victim can be a crime against society. Certainly any (violent) crime is a breach of the King's Peace, allowing/requiring the King to have the criminal prosecuted in the King's Courts. In that manner, the gap was bridged in medieval England (and later) between prosecution by the victim and prosecution by the King's officers, as well as between prosecution in the "moot" and prosecution in the King's courts.

In a sense, every violation of (criminal) law is an offence of which society is the victim, entitling it to approach the courts as the aggrieved party. The decision as to what acts should be forbidden by criminal law is properly guided by the question of harm.
3.19.2009 4:01pm
keypusher64 (mail):
I couldn't find anything on the New Zealand foreign affairs ministry website, but the article says this:


The Ministry of Foreign Affairs and Trade says such breaches would affect New Zealand's ability to influence other countries.

The ministry's advice, obtained by the Herald under the Official Information Act, says passing the laws "would pose reputational risks to New Zealand by resulting in international criticism".

The ministry has told the Government that no parole for the worst murderers - a National election policy - would enable "indefinite detention without the possibility of release", and would probably violate two human rights conventions monitored by the United Nations.

Act's "three strikes" policy, which imposes a life sentence with a minimum non-parole period of 25 years on the third "strike" offence, "may result in disproportionate sentences that could also breach the human rights obligations assumed by New Zealand (and most other countries)".

"[This is] potentially in violation of New Zealand's obligations not to arbitrarily deprive individuals of their liberty and not to employ cruel, inhuman or degrading treatment," the ministry said.

The two measures are before Parliament in National's Sentencing and Parole Reform Bill.

National has apparently not heeded the advice, which was given two weeks before the bill was introduced in February.

(Emphasis added). Might be an eager-beaver lawyer at the ministry who wrote the "advice" and then passed it on to the newspaper when the government decided not to pay attention.

Here are the treaties allegedly violated:


The Foreign Affairs officials said the measures would most likely violate the UN-monitored International Covenant on Civil and Political Rights and the Convention against Torture and other Cruel Inhuman or Degrading Treatment or Punishment.



I liked this quote:


David Garrett, the Act MP who designed "three strikes", said he wanted to know what countries the Foreign Affairs officials believed would be offended.

"They shoot people in China for much less and we have just concluded a free trade agreement with them. And we can't be offside with the Yanks because half their states have three strikes."
3.19.2009 4:01pm
martinned (mail) (www):

The Foreign Affairs officials said the measures would most likely violate the UN-monitored International Covenant on Civil and Political Rights and the Convention against Torture and other Cruel Inhuman or Degrading Treatment or Punishment.

I wonder how that would work. I can't think of anything in either the ICCPR or the Anti-Torture Convention that would lead to this conclusion.
3.19.2009 4:14pm
Richard Aubrey (mail):
Danger.
What you said. Years ago, when my kids were small, I happened to mention to a lefty that I was pleased as could be that I lived where my kids could toddle off to the ice cream shoppe with a couple of bucks in their grubby mitts all by themselves.
"You must live in a racist area."
It was WRONG that my children were not permanently at risk. WRONG to be safe. WRONG to not have to worry.
3.19.2009 4:15pm
parolee:
The possibility of life without parole is also a deterrent. By removing that possibility from the sentencing table, you encourage those who were previously deterred to reconsider the punishment calculus. Because crime is less costly as a result, criminals consume more of it. The true evil is the likes of martinned airily dismissing such deterred crimes as "serving no purpose."
3.19.2009 4:17pm
NickM (mail) (www):

There are people whose are utterly incapable of stopping their impulse to do evil. Many child molesters are repeat offenders, no matter how many times they are arrested, convicted, sent to prison, and counseling. There are rapists who clearly cannot stop what they are doing. What's the alternative to locking them up for life?


Complete castration puts a significant damper on future sex offenses.

Oh, and the child rapist/murderer you're thinking about was Theodore Frank.

Nick
3.19.2009 4:20pm
martinned (mail) (www):
@parolee: Not exactly. You're begging the question, since I don't believe the elimination of the possibility of parole significantly (in the statistical sense) deters crime over and above a normal life sentence.
3.19.2009 4:21pm
keypusher64 (mail):
Here is the Act Party's website, complete with a video of Mr. Garrett giving a speech, with an apparently unconscious woman behind him.


/Act

Act also wants to legalize spanking. I am thinking of emigrating to NZ just so I can vote for these people.
3.19.2009 4:23pm
parolee:
More like you're begging the question, since you assume it doesn't. Elimination of parole is a putative cost. Economic logic dictates that when something is more costly to consume, people consume less of it. Therefore at least some criminals will be sufficiently deterred by the prospect of life without parole as a consequence.

Your belief to the contrary is unargued for, and thus begs the question. It also happens to be a specious kind of evil.
3.19.2009 4:27pm
DangerMouse:
Even though I hardly think I qualify as a "leftist", I would offer that the desire for revenge is more of a working class phenomenon than a middle class one. In my experience, most ordinary law-abiding middle class citizens don't have the stomach for anything too severe.

Working class &middle class people are not at odds here. This is the "What's the Matter with Kansas" issue: why working class people tend to vote their cultural values instead of the (supposedly) superior economic liberal ones. Both working class people and middle class people want a safe, structured environment to raise children in. But the libs who are usually out of touch upper-middle class people or elite rich people, with no concept of the danger of festering crime, think that it's sexy to have a rebellious criminal set that upsets "the man" and causes friction against traditional society. Liberals are soft on crime to the extent that crime can help assist them in attacking western values. But God forbid if one of their designated oppressed is the victim of a crime by one of those who benefit from Western society. In that case, it'd be Bonfire of the Vanities all over again.
3.19.2009 4:40pm
A.C.:
Is deterrence that unpopular? I agree that rehabilitation is important, which is why I think we need separate prisons for some offenders who are less "hardened" that the general prison population. And I have no problem about societal vengeance or getting closure for the victim.

But there's always the question of how you deter the very worst offenses, especially murder as a follow-on to some other serious felony. How do you deter a rapist or kidnapper from killing the victim to remove the witness? There has to be a penalty for murder that is a lot worse than the one for rape or kidnapping. And you start getting into some very serious penalties at that level.

The goal isn't necessarily to throw people in jail forever. It's to get them to refrain from committing murder in the first place.
3.19.2009 4:52pm
Michelle Dulak Thomson (mail):
martinned,

As for victimless crimes, the absence of any harm should certainly be a strong indication that the behaviour in question should not be illegal. (Cf. J.S. Mill &friends) That's why I am quite pleased that things like euthanasia and prostitution are legal here.

I'd say that euthanasia is a bit over-legal there. When the formal protocol involves consent of the patient, but disabled infants are routinely killed, someone's not treating the protocol as though it means anything. And maybe you think that the unconsenting dead are better off dead, but it's stretching language to say that an act that kills someone who didn't consent to be killed is "victimless."
3.19.2009 4:56pm
A. Zarkov (mail):
martinned:

You keep avoiding the issue. How we do avoid private vengeance is the state won't do it? You seem to think that if the state declines to do vengeance then private parties will simply just forget about it. What will you do when frustrated parties refuse to play your game? You keep telling me that vengeance is base and therefore must be suppressed by the all knowing modern state. I don't think we can outlaw vengeance any more than we an outlaw prostitution.
3.19.2009 5:05pm
A. Zarkov (mail):
Martinned comments provides more evidence that Europe is a doomed continent. It no longer has the will to resist evil and fight for anything. Europe even lacks the will to reproduce. The North Africans will swarm over your continent and out breed you.
3.19.2009 5:09pm
A.C.:
Well, in the UK the planned way to outlaw private vengeance (or even self-defense in the middle of an attack) is to disarm the population. However, there will always be some kind of knife and something that can be used as a club. Strong individuals and determined groups can do all sorts of things with items like that.
3.19.2009 5:11pm
parolee:

Is deterrence that unpopular?

Of course deterrence is important. Notwithstanding the incoherent ramblings of those who airily assume away cost-factoring behaviour on the part of criminals.

If they want to claim that life without parole is an insignificant imposition that isn't costly and therefore doesn't actually deter, then they belie their own argument that life without parole is a moral evil and an imposition on the criminal. If it costs the criminal nothing, it cannot be as huge a penological evil as it is made out to be, nor is it an imposition on him.

martinned's position is therefore not only logically inconsistent, it is exceedingly silly.
3.19.2009 5:18pm
autolykos:
Meh. Appealing to rationality (and supposedly against our base instincts) doesn't add anything to the argument for me.

As a strictly rational matter, I can't think of any reason why a person who willfully and unlawfully takes the life of another deserves to continue living. Call it whatever you want - fairness, justice, porportionality, whatever - but I've yet to hear any answer to the question of why the criminal deserves more than their victim and why the criminal should be allowed to continue to enjoy their life when the victim is unable to do so. Now, I understand concerns about the reliability of the justice system vis a vis the death penalty, but those do nothing to argue for offering parole to those criminals.
3.19.2009 5:27pm
Clayton E. Cramer (mail) (www):

If parole boards are broken, fix them. Why not bring the question before a proper court? Why not mandate that the victims be heard? Why not even put the question to a jury?
Parole boards (at least in most American states) are appointed by the governor, and therefore represent elite sentiment. Hence, they are intrinsically broken for the reasons that I mention above: the desire to see decent people punished for having forced the real victim (rapists, murderers, and robbers) to do what he did.

And the question was before a jury. Guilty or innocent? Juries know (at least roughly) what the range of punishments available to the judge is in non-capital crimes. They saw the evidence. They heard either from the victim, or saw the crime scene photos. They know whether this is someone that needs to be locked up for life or not. Why bring in another jury to decide this point, who hasn't seen the victim or the evidence? Becuase then the objective is to release the monster again, and resume the injury.

Leftist thinking, because it denies that there are absolutes of any sort, finds it easy to justify that the victims are criminals and the criminals are victims. Hence, your philosophy.
3.19.2009 5:35pm
Clayton E. Cramer (mail) (www):

Complete castration puts a significant damper on future sex offenses.
But not subsequent violent crimes. I recall that someone that Governor Huckabee pardoned for rape (because he felt so bad about the fact that a mob had castrated the rapist while awaiting trial) committed murder after his release, in another state.
3.19.2009 5:39pm
nzdave:
Martinned:


To my knowledge, neither the death penalty nor LWOP are illegal under (global) international law. The death penalty is forbidden by the 6th and 13th protocols to the European Convention on Human Rights, but, to my knowledge, not by any global treaty or other source of law.


Actually, the Second Optional Protocol to the ICCPR bans the death penalty.
http://www.unhchr.ch/html/menu3/b/a_opt2.htm

Although all of Europe and the rest of the Anglosphere (Australia, NZ, Canada, UK) are signatories to the protocol, the US (as well as most countries in Africa and Asia) are not, and reserve the right to implement the death penalty (see http://en.wikipedia.org/wiki/File:ICCPR-OP2-map.PNG)
3.19.2009 5:55pm
rosetta's stones:
"Martinned comments provides more evidence that Europe is a doomed continent. It no longer has the will to resist evil and fight for anything. Europe even lacks the will to reproduce. The North Africans will swarm over your continent and out breed you."
................................................

I'm laughing uproariously at this post, and I'm still trying to figure out why. Not that I disagree with all of it, but the absolutist and apocalyptic tone of it is just hilarious!

This post is fully self contained. We have a problem identified, its root cause, an interim result, and then an ultimate status. All in one spare paragraph. I dig the efficiency.
3.19.2009 6:00pm
h0mi:

If parole boards are broken, fix them.


Why the need (or desire) for parole boards in the first place? Why isn't a "life sentence" a life sentence? Why is a prison sentence of, say 15 years, allowed to be shortened after the fact?
3.19.2009 6:14pm
Bob from Ohio (mail):

That's why I am quite pleased that things like euthanasia and prostitution are legal here.


Infants and mentally unbalanced people are murdered. The doctors who murder get no punishment.

That is not evil, its something to be proud of.

Murderers are sent to prison for life, that's evil.
3.19.2009 6:50pm
Dave N (mail):
h0mi asked:
Why the need (or desire) for parole boards in the first place? Why isn't a "life sentence" a life sentence? Why is a prison sentence of, say 15 years, allowed to be shortened after the fact?
First a definition. Parole is generally a way for prisoners to gain release from prison before full expiration of their sentences. The parole board releases these prisoners, usually with conditions, and usually with continued supervision by the state in the form of parole officers.

If a parolee violates the terms of parole, the parolee is returned to prison to complete the underlying sentence.

The federal government has abolished parole. That means that federal prisoners must serve 85% of their sentences before they can be released (credits for the remaining 15% can be earned for good behavior and what not).

Most states have parole. Parole is generally considered an act of grace, meaning that no prisoner has a right to parole. Parole board discretion is generally channeled through laws, some of which curb discrtion significantly and others that give the parole board almost unfettered discretion.

Why have parole? First is cost. Housing medium and maximum security inmates is very expensive, somewhere on the order of $40,000 a year, per prisoner. In tough economic times, like now, prison budgets are often cut. Parolees, on the other hand, cost significantly less (not $0 because of the cost of the parole agency and its officers).

Second, if there is no parole, inmates complete their sentences and are released. There is no one at all watching them. The federal government has lessened this impact through the concept of "supervised release," where released prisoners are still supervised after fully completing their sentences, but most states do not have a similar system.

The idea behind parole is that by having parole officers supervise recently released inmates, the risk of recidivism is lessened because there is some government authority looking over the former prisoners' shoulders while they reintegrate into society.

I hope this rather simplified explanation helped.
3.19.2009 6:54pm
A. Zarkov (mail):
rosetta's stones:

"This post is fully self contained. We have a problem identified, its root cause, an interim result, and then an ultimate status. All in one spare paragraph. I dig the efficiency."


I could give you a long winded essay full of references, demographic statistics, the usual qualifications and weasel words, quotations from government leaders and pointers to the proposed EU constitution and finally a list of recommended books. But this is a blog thread, not a masters thesis-- why not cut out the fluff and get to the essence in as few words a possible?
3.19.2009 7:00pm
epeeist:
Re castration:

Wrongful rape convictions seem to have been in the news recently. That's a good reason in my opinion not to impose mutilation for any crime as a punishment (and again, my death penalty objection).

As for parole, legislators -- not courts, LEGISLATORS -- set laws regarding parole. The theory is (and I agree with this in principle) is that if e.g. someone is sentenced to 10 years in prison, if they go directly from prison to outside with nothing in between, they're more likely to reoffend. If they go from prison to parole, chance of reoffending is less. So except for life sentences/LWOP situations, if someone is eventually going to get out of prison, I want whatever will reduce the chances of that person reoffending. If a halfway house, parole, learning a trade in prison, having a prison library, whatever, decreases the chance of reoffending, great. If having television available as a reward for good behaviour helps mean that not every single prison has to be a supermax and imprisonment costs less money and the prisoner may learn the value of obeying rules, great.

Now, there's no reason why it couldn't be say that the law was 10 years = 10 years prison followed by 5 years parole, rather than say 10 years = 5 years prison followed by 5 years parole (if good behaviour, etc.), that's just a policy choice. It's also an economic choice. Imprisoning people costs money, there are a whole bunch of factors that go into sentencing and everyone has their biases. I think crimes against persons (assault, sexual assault, child abuse, etc.) aren't punished severely enough compared with crimes against property like burglary (so either crimes against persons should be punished more harshly, or crimes against property more leniently, or both, in my view), and drug crimes are punished disproportionately harshly in most cases. Someone else could reasonably disagree with me.
3.19.2009 7:02pm
ReaderY:
Why not end their suffering by mercy-killing them? Isn't this the sort of suffering mercy killing is designed to alleviate?
3.19.2009 7:18pm
Peter Metcalfe (mail):
Technically the analogous sentence to life without parole in New Zealand is Preventive Detention (which can be imposed on repeat violent and sexual offenders) and the parole board can only release such prisoners if they are convinced they do not pose a danger to the community.
3.19.2009 9:22pm
Desiderius:
Not content with merely spending other peoples money, the international elite has expanded into compromising other people's safety in pursuit of a society in which they can be proud slightly less ashamed.
3.19.2009 10:06pm
Desiderius:
martinned,

"As noted, anyone who continues to be a threat should not be paroled. That doesn't mean their ability to petition for parole should be eliminated altogether."

I'm sympathetic here, but at the same time given the performance of actual parole boards, I think we're either asking for trouble (lax/incompetent parole boards) or imposing cruel and unusual punishment on the most dangerous class of criminals in giving them the false hope that such a petition would be approved.

There exists a point at which society has to face the reality that the freedom of some human beings compromises the freedom of too many others for the former debit to outweigh the latter credit.
3.19.2009 10:16pm
mischief (mail):

since they both have little or no purpose other than to exact retribution.


The entire purpose of punishing the criminal is to exact retribution. Insofar as your purpose is anything else, you commit a monstrous injustice.

You can legitimately select between punishments based on their other effects once you have determined they all serve this purpose, but this one comes first.

If you do not, then


As noted, anyone who continues to be a threat should not be paroled.


logically requires that a shoplifter should get life in prison whenever it appears likely he will reoffend. Who could possibly object? The only possible objection is that it is disproportionate retribution for the crime, and you've already rejected retribution as a legitimate motive.
3.19.2009 10:33pm
Owen Hutchins (mail):

No surprise here.
The anti-cap pun folks point to LWOP as the humane alternative.
I'm convinced they have already composed, printed, collated and stapled their arguments about ending LWOP.
IOW, they're liars.
No surprise here.


Not picking on you in particular, you just happened to be the first idiot to try and tell me how I think on this issue. Way to go with that broad brush, the lot of you.
3.19.2009 10:44pm
ArthurKirkland:
This thread suggests that many who post n this precinct are strong for prosecution and accountability and punishment with respect to crimes.

I gather from other threads, however, that those plausibly accused of certain war crimes -- arranging torture, for example -- constitute an exception to this approach.

Can anyone explain?
3.19.2009 11:02pm
Seattle Law Student (mail):
There are a few things that I would like to know more about this issue. What fraction of felons convicted of a life sentence are subsequently released on parole, and what is the average length of the sentence they did serve? How do recidivism rates change with regard to the age of the released convict? Do the lessening security costs of housing an elderly inmate offset the increased medical costs?
3.19.2009 11:57pm
keypusher64 (mail):
ArthurKirkland

A hypocrisy charge requires a more work than that. There is not enough in your post to make up a straw doll, never mind a straw man.
3.20.2009 12:17am
Steve65:

@A. Zarkov: "I invite people to speculate on why the left seems to oppose all but the mildest of punishments?"

I think one reason is that when liberals think about the American goal of protection from government tyranny, they get confused and think that in all cases less power is better. They end up with no sense of perspective that government tyranny balances private tyranny and that many people have more tangible fear of the latter.

They may also worry that it's more about base emotional vengeance and forget about the other more utilitarian reasons for punishment.

But...

@A.Zarkov: "How we do avoid private vengeance is the state won't do it?"

By punishing private vengeance which deters future private vengeance.

And it's an exaggeration to say the state isn't doing it. If a victim sees that the criminal was punished are they somehow deprived of their vengeance because the state's reason for punishment was all of the non-vengeance reasons?
3.20.2009 12:19am
trad and anon (mail):
Working class &middle class people are not at odds here. This is the "What's the Matter with Kansas" issue: why working class people tend to vote their cultural values instead of the (supposedly) superior economic liberal ones. Both working class people and middle class people want a safe, structured environment to raise children in. But the libs who are usually out of touch upper-middle class people or elite rich people
This is getting way OT, but there is no trend of working class people voting Republican. In fact, working class people vote Democratic by enormous margins and the proportion of Republican voters increases monotonically with income. The idea that the Democrats are the party of the privileged and the wealthy is completely without support in fact. Republicans have been successful in promoting it, though: somehow they managed to brand the most privileged person in the world as a man of the people based on little more than a Texas accent.

The "What's the Matter with Kansas" issue was much more limited: why do working-class people in Kansas vote Republican? The Kansas working class is still much less Republican than the Kansas upper class.
3.20.2009 12:38am
Ken Arromdee:
Wrongful rape convictions seem to have been in the news recently. That's a good reason in my opinion not to impose mutilation for any crime as a punishment (and again, my death penalty objection).

This reason would apply to life without parole too (or even to five year sentences). You can no more give someone their lost years back than you can give them their body parts back.

Also, not all wrongful convictions will be discovered while the person is still alive and can be compensated in any way, however poorly. If the mere existence of any people at all who we've unjustly punished and not compensated bothers you, all punishments are like this.
3.20.2009 1:31am
Richard Aubrey (mail):
Owen.
Right. Picture me skeptical. If you are as you say you are, you'll need a hobby which doesn't require many friends, since the anti cap pun folks will drop you like a hot rock in pursuit of the pre-planned anti LWOP.
But picture me skeptical.
I mean, if cap pun goes away, what are you going to do to feel all wonderful and stuff?
3.20.2009 8:38am
A.C.:
My understanding is that the vote for liberal candidates, graphed by income, is sort of like a backwards J. It's highest among the poorest people, who would benefit most from liberal social programs. (Many of these may be students and the elderly rather than working-age poor, but the point still holds.) Then it drops steadily, and the conservative vote rises, until you get to the top few percent of the income distribution. At that point, the vote for liberals hooks back up again.

Which makes sense. People in the middle ranges do have enough to live decently, but often not all that much to spare for social engineering projects or walling themselves off from society. And they may have enough money to move 20 miles away from crime and social dysfunction, but they can't be sure their children will. They can educate their kids, but not buy them condos in gated communities or buildings with doormen. And they can never be sure that the things they move away from won't find them 20 miles away.

(Note that this applies to non-white people who move to suburbia as well as to white people. Most people who can manage it try to get out of bad neighborhoods.)

And so people in the middle are the ones most likely to lobby for law and order for ALL of society. Traditionally, they are also the same people who want safe drinking water for everyone and regular trash pickup too. And for many of the same reasons.

It's rather odd, actually, that law and order has become a conservative position while safe drinking water is a liberal one. Both seem like the same kind of issue to me.
3.20.2009 9:18am
Richard Aubrey (mail):
A.C.
You left out one point, which is that, in pursuit of things like safety and clean and orderly neighborhoods, the middle of the population is frequently referred to scathingly as racist or some such. So you need to add annoyance directed at their self-anointed betters.
Look back at who was pushing low-income housing in Yonkers. Yup. Rich white folks who wouldn't live within miles of the place and had gated communities to avoid the contagion. But they were confident enough of their own righteousness to call the citizens who would actually bear the consequences "racist".
3.20.2009 10:16am
NowMDJD (mail):

I don't believe the elimination of the possibility of parole significantly (in the statistical sense) deters crime over and above a normal life sentence.

This sounds like an empiric assertion. Do you know of any actual data pointing one way or the other?
3.20.2009 10:25am
NowMDJD (mail):

The idea behind parole is that by having parole officers supervise recently released inmates, the risk of recidivism is lessened because there is some government authority looking over the former prisoners' shoulders while they reintegrate into society.

Another reason is to encourage prisoners to behave themselves in prison. If you behave yourself, you have a chance to get released earlier. But only if the parole board thinks you'll behave yourself outside.

The possiblility of earlier release encourages prisoners to follow the rules. This makes life leass unplesant, and safer, for prison staff and for other prisoners. Not a small consideration.
3.20.2009 10:34am
A.C.:
Richard Aubrey -

Well, to be fair, there was a period in the mid-20th century when most of the disorder was in non-white neighborhoods and most of the people fleeing were white. But that was just one moment in time. In the early 20th century, and certainly before that, there were lots of disorderly white neighborhoods to flee. And for the past couple of decades, there have been plenty of non-white, lower-middle and middle-middle class people seeking a better life in suburbia.

The liberal position on this makes sense if your brain is permanently stuck in the 1960s. If not, not so much.
3.20.2009 10:49am
Richard Aubrey (mail):
A.C.
Not quite right. Not quite.
The point is not in fleeing--the Yonkers folks weren't talking about fleeing--but about allowing another sort of person in. It isn't a matter of fleeing to insist on law and order.
It isn't a matter of fleeing to oppose AA which disadvantages the good student who is not of the favored ethnic group.
It's not a matter of fleeing to support things like public nuisance laws against litter and noise.
It is, however, easy to be accused of racism for holding such positions.
I trust I've made it clear your lame attempt to change the subject is busted wide open?
3.20.2009 11:37am
epeeist:
To Ken Arromdee:

To suggest that imprisonment = mutilation because you can't give time back any more than body parts in cases of wrongful conviction? If you honestly believe that, why not bring back chopping off fingers, hands and blinding people for theft?

At least when someone has been wrongfully convicted they can be released from prison and given compensation, which though not fully adequate, is something.

There is also the factor, there are already situations in which people are pressured to accept a plea bargain even if factually innocent, for instance, plead guilty and we'll recommend 1 year, go to trial and we'll push for the maximum 20-year sentence (or whatever). I can't remember the details, but one wrongful conviction I read of recently, the guy had been sentenced to 25 years, he'd been offered (and rejected) a plea that would have involved zero prison time (but how hard was that to do?). Someone who knows he or she didn't do a crime may have enough faith that truth will win out eventually, but add mutilation to the mix and that's a lot stronger bargaining tool for a prosecutor.
3.20.2009 12:26pm
A.C.:
Richard Aubrey -

Um, why do you presume I disagree with you? I'm rejecting the liberal frame of reference on the issue, not yours. I think it was limited to a specific point in time, and that it was only partially true even then.

And I'm really rejecting it, not just railing about it. I'm saying I don't care if I get called a racist. I still think law and order are extremely important, and all the more so for people who can't use their money to escape. This includes people of all races, and it doesn't matter whether they are fleeing an existing problem or protesting importation of a potential new one.

Which was in response to somebody else's remarks claiming that only the rich care about that stuff.

Don't know how affirmative action fits into the crime discussion, though. That one's a tangent.
3.20.2009 12:33pm
Richard Aubrey (mail):
A.C.
The point about mid-twentieth century is completely false.
You might be right about the fear of false accusations of racism losing some of its punch, but I sure don't see it.
AA fits in because it's one of those items which brasses off the folks in the middle and for opposing which they are pilloried as racist. That's not a crime issue, but it's one of the things which splits the middle voting repub from the top and bottom.

There's a school district near where I live which has combined being a town with its own character and being a bedroom suburb. Plain vanilla, white bread, corn fed. Low income housing came in and now the bus which picks up those kids has a cop on it every day on account of fighting. Boy, you should hear the teachers and admins walking on egg shells speaking about the issue. School board meetings might be interesting.
3.20.2009 1:22pm
A.C.:
Are you alleging that lower middle class minorities like the disorder any more than white people do? I've seen no evidence of this. We're talking about the people who move heaven and earth to pay for Catholic school, and who are some of the most enthusiastic proponents of school vouchers. And I haven't exactly noticed that black cops have romantic, impractical ideas about criminals.

The way you deal with the racism charge is to make sure the coalition working to establish order is multiracial.

To put it another way:

Around 1910, the "order" coalition was a subset of white people, while the "disorder" coalition was poor white people, immigrant white people, and all non-whites.

Around 1968, the "order" coalition was most white people, while the "disorder" coalition consisted of many legitimate advocates of reforming race relations, many agitators and troublemakers, and a bunch of romantic liberals who declined to make any distinction between the two.

Around now, the "order" coalition is pretty much anyone who isn't in a gang or otherwise completely disfunctional. Black people with Ivy League degrees live in the White House. And the romantic liberals haven't changed their tune with regard to the troublemakers.

But 1968 was 41 years ago, and a whole lot of people have been thinking about the problem since then. The liberal position hasn't died out, and it probably won't until the people who hold it do, but it has a lot more competition now.
3.20.2009 3:08pm
Ken Arromdee:
At least when someone has been wrongfully convicted they can be released from prison and given compensation, which though not fully adequate, is something.

Compensation for mutilation also isn't fully adequate, but something.

There is also the factor, there are already situations in which people are pressured to accept a plea bargain even if factually innocent, for instance, plead guilty and we'll recommend 1 year, go to trial and we'll push for the maximum 20-year sentence (or whatever).

This of course is correct, but it's a problem with the justice system in general. Why do we even have such things as plea bargains? They don't benefit the accused at all, since they create incentives to pile on extra charges in order to plea bargain.
3.20.2009 3:40pm
craig (mail):
The UN's corruption being almost complete, "international law" is bound to be used to abrogate American rights. Once "defamation of religion" (read: criticism of Islam) is deemed an abuse of UN-conferred human rights, instead of itself being an exercise of freedom-of-speech rights, then the "international law"-based argument will end up being deployed against rights guaranteed by the Constitution.
3.20.2009 4:18pm
Desiderius:
trad,

Find some better data or, to save yourself some time, check the advertisements in the fashionably left NY Times. You're seriously out of date.
3.20.2009 8:03pm
Richard Aubrey (mail):
A.C.
"alleging" something? Try rereading my post.
Lower middle class don't like disorder. They are so traditional they squeak when they move.
It's the folks who need assisted living who are the problem. Many of them, too many, are where they are because of disorder in their lives, a reluctance to obey social rules, and a no reluctance to inflict their disorder on others.
Following social rules is necessary, if not sufficient, to being reasonably prosperous.
So, sport, you can claim I'm "alleging" something not PC.
I really don't care.
3.20.2009 10:19pm
whit:

Clayton, amen. After enough time passes, the focus almost always turns to the "poor prisoner," and memories of the crime itself blur in the distance... often because the lives of even the survivors of the murders are shortened because of what was done by that "poor prisoner" to their loved one


this was perfectly exemplified by an exchange between a pro-"tookie" anti-death penalty person and another that i read about.

the pro-tookie ninny claimed to have studied tookie's case intimately and was thus assured that he should not be put to death.

the person was asked to name just ONE of tookie's victims, then.

couldn't do so.

iow, it was ALL ABOUT tookie. his victims didn't even deserve the courtesy of having their names remembered, unlike tookie, a founder of one of the most evil criminal gangs ever, whose name was sympathically bandied about.

it's frigging disgusting.
3.20.2009 10:24pm
Richard Aubrey (mail):
whit
When Mumia was scheduled to give a graduation address by tape from prison at a hip small college, the vic's wife showed up.
The enlightened kids booed her.
Let's hear it for higher ed.
3.21.2009 12:18am
Richard Aubrey (mail):
whit
When Mumia was scheduled to give a graduation address by tape from prison at a hip small college, the vic's wife showed up.
The enlightened kids booed her.
Let's hear it for higher ed.
3.21.2009 12:18am
TCO:
Lawyers suck.
3.21.2009 5:47am
Rich Rostrom (mail):
Willie Horton was serving life without parole for murder, when Massachusetts decided to let him out on a weekend furlough.

Winston Moseley, the killer of Kitty Genovese (and two other women), had the death penalty reduced to life imprisonment. He later broke prison and committed a rape before being recaptured.

As for parole boards: in 1943, Paul "the Waiter" Ricca and several other Mob leaders were convicted of extortion and tax evasion. Less than four years later, they were all released by the Federal parole board.

Jack Henry Abbott was serving a 3-to-23 year sentence for murdering a fellow inmate when he broke prison, robbed a bank, and incurred a further 19 years. Six years later, he got the attention of Norman Mailer, who got him paroled.

Let's not forget pardons.

Roger Humphreys murdered his ex-wife and her boyfriend in 1973 (he shot them 18 times with a 2-shot derringer). He got 20-40 years. In 1978, Tennesee governor Ray Blanton pardoned him as a favor to Humphreys' father, a political crony.

In short, anyone who counts on prison authorities to keep murderers inside is deluding themselves.
3.23.2009 4:34am

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