Saturday, August 13, 2005

On Capital Punishment

Scott Scheule, of Catallarchy fame, (as well as Life, Liberty, Property) linked to an abstract of a paper by Joanna Shepherd entitled Deterrence versus Brutalization: Capital Punishment's Differing Impacts Among States. Here’s a bit of it:

My results have three important policy implications. First, if deterrence is the objective, then capital punishment generally succeeds in the few states with many executions. Second, the many states with numbers of executions below the threshold may be executing people needlessly. Indeed, instead of deterring crime, the executions may be inducing additional murders: a rough total estimate is that, in the many states where executions induce murders rather than deter them, executions cause an additional 250 murders per year. Third, to achieve deterrence, states must generally execute many people. If a state is unwilling to establish such a large execution program, it should consider abandoning capital punishment.

As most everyone knows, the debate about the so-called ‘death penalty’ is one that divides people along ideological lines. On one side, there are “traditional conservatives” (theo-cons); on the other side, there are the “liberals” (neo-libs—aka compassionate collectivists). The former is fer it, while the latter is agin it.

As it happens, Justice John Paul Stevens, reputed to be the ‘most liberal’ member of the High Court (Republican nominee—Gerald Ford), recently waded into the frey by casting doubt on the propriety of Capital Punishment (CP).

Stevens said DNA evidence has shown "that a substantial number of death sentences have been imposed erroneously."

"It indicates that there must be serious flaws in our administration of criminal justice," he said.


He said the jury selection process and the fact that many trial judges are elected work against accused murderers. He also said that jurors might be improperly swayed by victim-impact statements.

Again, disagreement about this is nothing new, so I’ll not presume to settle the matter in a blog post. However, against my better judgment, I’m going to ‘step in it’, so to speak.

Alright, essentially, what we have here…is a failure to communicate. That is: to some, CP is a natural means of effecting justice (eye for an eye, tooth for a tooth). Others hold that CP is a barbaric violation of “human rights” . While still others take a more consequentialist stance, in that they believe that eliminating a murderer can only benefit society. There are undoubtedly more nuanced positions, but I think that these are fairly representative of modern cultures in general. This may or may not be surprising, but I disagree with all of the above. Let’s take them in succession, shall we?

The “eye for an eye” justification is (A) egregious and vindictive (B) mired in arbitrary religiosity. By that reasoning, parents ought to kill their children via ‘stoning’ as punishment for disobedience, as per the Law of Moses.

The “human rights” point of view is absolutely preposterous. It presupposes that “humanity” (all humans collectively) have rights. Nonsense. It’s quite clear that only individuals have inherent rights, which pertain to life, liberty and property.

The consequentialist position is nothing if not practical. The exact reference escapes me, but I vaguely recall a quote from a (mythical?) sheriff from the Wild West (circa late 19th Century) that goes something like this: He’s not being hanged for a particular murder…he’s hanging for being the type of man that would commit murder. In other words, CP might be an effective preventative measure. But then there’s that pesky problem of proof and evidence.

The primary question in my mind is: would I be willing to accept a ‘death sentence’—at the hands of the state—even though I were innocent of the crime…just to preserve the principle that CP ostensibly represents? Moreover, do I think that the state is sufficiently competent to determine ones fate? My answer is a resounding NO!

Back to the article on Justice Stevens. Not surprisingly, SCOTUS nominee, John G. Roberts, got an honorable mention.

Stevens wrote that 2002 Atkins decision, which was joined by O'Connor. One of the three dissenters was Chief Justice William H. Rehnquist, who hired Roberts as a law clerk in 1980.

A year later, as a Justice Department lawyer, Roberts wrote in a memo that the availability of federal court appeals, "particularly for state prisoners, goes far to making a mockery of the entire criminal justice system."

Stevens, however, laid out the case for close review of appeals, pointing to "special risks of unfairness" in capital punishment.

Umm…since when do appeals constitute a “mockery of the entire criminal justice system”? Perhaps Mr. Roberts was referring to those who are ‘obviously guilty’. But who ultimately makes that determination? Why, none other than twelve fallible individuals who, incidentally, are urged on by the state’s attorney. Now, don’t misunderstand my position here. For I tend to agree with what Neal Boortz often says: one is not innocent until proven guilty, but rather, one is guilty as soon as one commits a crime. There is no disputing that. The problem lies, for me at least, with the phrase: “beyond a reasonable doubt”. In the context of CP, this is simply too problematic, in that it’s invariably subjective. There are no “do overs” with successful executions…death is permanent.

One more reference to the ‘Stevens piece’. Tell me, how does the following strike you?

"[CP] doesn't appear to be shaping up as a major issue," said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, a pro-death penalty group.


According to the anti-capital punishment Death Penalty Information Center, more than three dozen death row inmates have been exonerated since 2000.

Said Scheidegger, "I wouldn't say that 20 or 30 cases out of 8,000 constitutes a broken system."

Sure, those odds are fine for inanimate objects. But what if one of your loved one has been wrongly accused of a capital crime? What if the innocent one on trial is you? No, the power to kill civilians is not that which the state ought to have, regardless of the crime. Hell, think of how they handle finances and education! Do you really think that the state ought to be empowered to extinguish the life of a free individual?

If not execution, then what punishment is appropriate for those that are, in fact, guilty of murder? To me, confinement for life—the complete loss of liberty—sounds pretty damn harsh. With a ‘life sentence’ though, there remains the possibility of future exoneration, if in fact one has been wrongly convicted. There’s no need to take my word for it; just check out the Innocence Project.