that much as some monsters — recall that we began with a man who raped and murdered 20 children, and progressed to include Eichmann and various other Nazis — deserve a deliberately painful death, our society’s legal system (no matter what constitutional amendments there may be) can’t provide it.
What I found most persuasive about Mark’s argument was his points about institutions: about how hard it would be for a jury system to operate when this punishment was available, and how its availability would affect gubernatorial elections, legislative elections, and who knows what else. Even if enough people vote to authorize these punishments constitutionally and legislatively (which I’ve conceded all along is highly unlikely), there would be such broad, deep, and fervent opposition to them — much broader, deeper, and more fervent than the opposition to the death penalty — that attempts to impose the punishments would logjam the criminal justice system and the political system.
And this would be true even when the punishments are sought only for the most heinous of murderers. It’s not just that you couldn’t find 12 people to convict; it’s that the process of trying to find these people, and then execute the judgment they render, will impose huge costs on the legal system (for a few examples, see Mark’s post). Whatever one’s abstract judgments about the proper severity of punishments, this is a punishment that will not fit with our legal and political culture.
In any event, I much appreciate Mark’s instruction on this. Part of me wishes that I could keep disagreeing, out of sheer bullheadedness. But the fact is that he’s right, and I was wrong.
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