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Death Penalty: Let’s Be Honest
Jonah Goldberg has an excellent piece today on the dishonesty of the opponents of the death penalty. He highlights two points: (1) opponents create the situation (costs of litigation and associated administration) which they argue should be a basis for discarding the death penalty, and (2) they call it “unconstitutional” when the death penalty is actually written in the constitution (see 5th Amendment). They also point to the numbers of individuals on death row that have been determined to be innocent prior to their delayed executions. That is not an argument against the death penalty unless you really believe we cannot do a better job in investigating and adjudicating the innocence or guilt of people. Is it better to house an innocent person in jail for the rest of their life than to execute them? After all, eliminating the death penalty may actually reduce support for post-conviction innocence proceedings.
One can have a principled argument against the death penalty — but none of the ones put forward are actually that. The real question in my mind is one of relative value: Is the accused’s life of more value than the victim’s? If your answer is “no” you cannot be against the death penalty. You can be for better investigative and prosecutorial rules — eliminate practices that evoke false confessions, make the prosecutors focus on justice instead of political favor — you can be for limiting the penalty to those cases only where a life is taken, and you can be for quick and relatively painless executions, but you cannot be for the eliminating the death penalty altogether.
Remember that the alternative to a broken criminal justice system is not a more humane justice system — it is a system of private revenge and self-help. So if you break the system with unprincipled arguments you get private action. You cannot consistently value the life of the killer over that of the killed and maintain a justice system that is the sole purview of the state.
Published in General
Jonah Goldberg’s article is incredibly shallow. The death penalty is expensive because of the appeals process, a process that must be long, expensive, and exhaustive to ensure the correct person is executed. Cherry-picking the Facebook killer is not helpful to the discussion, and neither is assigning blame to the ACLU. This is one area where the ACLU is correct: if we are going to kill someone, they deserve an exhaustive appeals process.
A quick google search shows that an oft quoted stat is 88% of criminologists believe that the death penalty provides no deterrent to violent crimes.
The death penalty is clearly constitutional; the 5th amendment states “No person shall be…deprived of life, liberty, or property, without due process of law.” The taking of life by government is clearly allowed by the Constitution.
If a Christian, you must accept that it is also moral. If God thought the death penalty appropriate in the Old Testament, then it cannot be immoral.
However, none of this is to say that the death penalty is good, practical policy for the United States in 2017. Killing the wrong person is not worth the risk, especially in light of the facts that execution is more expensive than just locking them up and that experts do not believe it prevents other crime any more than prison.
“Is the accused’s life of more value than the victim’s? If your answer is “no” you cannot be against the death penalty.”
No, the killers life is not of more value than the victim’s, but what does that have to do with anything? As Ben Shapiro always says, it’s possible for 2 things to be true at once. I don’t believe the killer’s life is more valuable, and I also don’t believe the death penalty is an effective policy in terms of cost, risk, and lack of deterrence.
Agreed. Also, the accused is not necessarily the actual murderer.
The possibility of making a mistake is what keeps me ambivalent about the death penalty. Granted, personally I would rather be executed than confined to prison for the rest of my life. But at least confinement keeps the possibility open that mistakes can be rectified.
I’ve come to oppose the death penalty because of the way it’s been abused in this country. Suspects have routinely been threatened with the death penalty if they didn’t confess, and some innocent people have spent time in prison as a result.
I agree. I have no doubt that there are honest prosecutors and honest labs. Unfortunately there are others. Worse, there has been bad science used unwittingly and with good intentions in capital cases.
If, which I hope and pray I am not, I am ever called to serve on a potential death penalty case, I will have some very serious questions in the penalty phase.
My own thinking on the death penalty was formed by an extreme case: Eichmann. I concluded in my teens and still think that execution was the only appropriate sentence for him. Having conceded that, I cannot categorically oppose capital punishment.
I agree with this. You can believe that the victim’s life is more, equal, or less precious (cause the accused is still alive and not the victim??? Don’t agree with that idea!) than the accused and your opinion of the death penalty can be still be for, neutral, or against for many reasons.
Do we really have to accept that everything God thought was appropriate in the Old Testament is moral? God does a lot of the killing Himself, which I guess is OK because He giveth, He taketh away–but theft? Incest? All kinds of chicanery?
Exactly.
On the main point of the post, I agree with the two statements
I will focus on the first and my reasons for deciding on the death penalty.
I agree that the idea that the death penalty is bad because it costs a lot of resources is not a good reason in itself. However, as is pointed out here
there is good reason to be thorough in many cases, although I disagree that it must always be the case.
This brings me to the ACLU. I disagree with Kyle here. Even though I freely admit that in general it is good to have a watchdog making sure that the courts don’t slack of, I think trying hard to defend someone like this facebook killer would be wrong. Don’t get me wrong, I would have a lowly defense lawyer take the case and make an argument, just without any tricks, truth is the goal, not a specific outcome. Also, once the case is finished, if done with absolute certainty, then I would have a token appeal to check for new evidence in 6 months or so, and then immediate execution assuming nothing new was found.
Despite the fact that we need very rigorous processes in most cases since most cases aren’t black and white. When cases aren’t as clear, that is when you need to be thorough.
However, all that being said, life in prison is no better. If someone on death row is entitled to appeals and investigations, then everyone in prison for life should be entitled to the same. Thus, it is plain to see that execution should be no more expensive than prison since execution is less expensive than prison and the investigations should be the same cost.
After all, finding an innocent on death row is just as bad as finding an innocent in prison for life. In fact, one could argue that life in prison is more cruel. With death, it is simple and clean. With prison, it is protracted and has other consequences. It may turn a good person bad to be in prison and that is much worse in my mind than possibly allowing someone to repent who committed a crime. To have someone killed unjustly but in a good cause is bad, but not the end of the world.
To keep people in prison but create a system where justice is not served is much worse in my mind.
My personal experience is that even in the heat of the moment, worry about prospective punishment can influence action. It does mine – I regret to say I’ve curtailed how hard I defended myself against a molester because I was the one worried about being punished, if my response were thought “disproportionate”.
Moreover, premeditated murder – not only in the heat of the moment – is considered the graver offense.
That said, people may not always consider death, especially if it’s swift death, the greatest threat. Personally, if I had to spend life in prison, I’d volunteer to be executed, if they’d let me.
My take on this is that if we have a right to self-defense (I expect every conservative here believes that) and if the victim had succeeded in defending themselves, than the perpetrator would be dead without a trial.
Arm everyone.
Sunk costs are sunk, after all, even when that cost is your innocent life. And unfortunately, unsunk preciousness of life only belongs to the ones still alive.
I think pre-meditated would consider the likelihood of getting caught and if that is meaningful to them. Persistence in pursuit by LE and sticking to the original sentencing (none of this “out early for good behavior” nonsense) could be a deterrence.
Crimes of passion, I agree with our discretion in how we handle those as different than pre-meditated. Pre-meditated murder is a different ball game.
I think it would be perfectly fair to continue with a trial by jury and, upon a guilty verdict, have the judge provide appropriate options for punishment to the victims and let the victims mete out the sentence.
This isn’t revenge, as it still has an impartial law enforcement and jury system pursuing justice, but it also allows the victims release.
This is also what I would expect. Also, I hear that a lot of violence is committed by people who face death every day like gang members. Death penalty is not effective as a deterrent to them.
However,
I think these two cases are worthy of very rigorous thought about how we deal our system. It’s hard to say that the death penalty doesn’t affect anyone. Given that, I wouldn’t rule it out entirely.
Of course, I would also make less criminals of innocents. As said by:
This is an ideal I can get behind. Unless there is proof of premeditated actions or setup, self defense should have no trial, only investigation.
Also,
This is an interesting point. I don’t see a conclusion, but I agree that life is precious even if less precious, it still has worth. I think criminals lives are less precious than the innocents’, but that is just my opinion.
In regard to financial costs, reintroduce corporal punishments and that alone will save countless money otherwise spent on our ridiculous penal system. Clean up litigation incentives and you save more.
People think corporal punishment is cruel only because they consider it in isolation. Consider it in relation to years of imprisonment, separated from all who care about you and all you care about, marked for life as a criminal and forever barred from voting. What a recipe for reintegration! Or you can take your licks and be on your way within weeks (after healing)… either without scars (we can do that now) or with the reminders of your crime placed where only you can see them.
But no, physical pain — which becomes just a dim memory within weeks or months — is so much worse than caging a man for decades and condemning him for life! Our judicial system flew off the rails long ago.
I have some doubts about this method as it might allow for glory seekers to take death when not appropriate. It seems like it could lead to suicide by guilty verdict and I don’t like that.
However, in clear cases, I would agree that this could work. Especially in the most obvious cases one could allow a condemned person to forgo appeal or some such thing. However, that would open up the threats and forced admissions and forced selection of death that would create even more problems.
So, all in all, I think just making punishments without considering what a guilty person wants is better.
I don’t disagree that an innocent person’s life is worth more, only that a life already taken no longer has any value to preserve once it’s well and truly taken, no matter how much more it was worth than the taker’s life before it was taken, since it no longer exists. So the lifetaker’s life being worth less than the life he took is not, by itself, justification for executing the lifetaker. Whatever benefit we get from executing murderers, it’s not repayment for the life taken, since that is impossible.
I suppose to the extent that a real repayment could be made, it would be not to the dead victim, but those still living who have been victimized by the victim’s irrevocable and unplanned disappearance from their lives. Weregeld is for those still living, and many modern people find the idea of paying money to make restitution for a murder odious anyhow, perhaps because it suggests that life isn’t precious enough or that enterprising would-be murderers could save up for whatever murders they intend to commit.
Well, to be fair to those squeamish about corporal punishment, several of the more, ah, memorable forms of corporal punishment are also designed to maim or publicly disfigure. Aside from obviously maiming punishments like branding and amputation, bastinadoing, for example, while it can be accomplished in a way designed to cause temporary but intense pain, can also be accomplished in a way (the falaka method) likely to cause long-lasting mobility impairment.
To tell the truth, if pain without lasting injury can easily become a dim memory, I wonder if some of our aversion to using corporal punishment is worry that it wouldn’t deter or immobilize criminals for long enough. After all, a miscreant at large in the world, already forgetting the pain of a punishment which left him with no lasting impairment, isn’t safely locked up from the rest of us! Golly, I’m in a cynical mood tonight…
I see it’s already been said, but the problem I have with this argument is that it presumes the possibility of a level of perfection we’re not going to obtain. It reminds me of some arguments that I’ve had over immigration. Me: “You can’t have open borders and a welfare state.” Open Borders Supporter: “Well, we shouldn’t have a welfare state.”
As conservatives, I think most of us believe that some people are going to do bad things, like commit murder.
Sadly, “bad things” can also be committed by policemen, judges, and the folks in white lab coats. Personally, I don’t want any innocent person to die based on accident or the malice of those in power.
I can understand why others think otherwise, but I no longer think the sacrifice is merited.
(By the way, it was another thread on Ricochet that brought me around to this POV.)
Is the accused’s life of more value than the victim’s? If your answer is “no” you cannot be against the death penalty.
This is why I have never become a “whole-cloth” pro-lifer. That position misses this point entirely. I would only modify your second position by adding “and maintain logical consistency in your ethic system.” Wordy, I know.
I don’t agree with the death penalty. However any person doing life in prison can choose to be euthanized.
Death penalty doesn’t work as a deterrent, people still continue killing each other. I view death penalty as a means to take vicious killers out of society forever.
There are crimes so horrific that there can be no forgiveness from society.
It deters the H out of that particular murderer. I am not so pro-death penalty as I once was, but for murders, especially those where the killer exhibited cruelty , and guilt is established beyond reasonable doubt, it seems to me the only just punishment.
Given the reluctance to abandon the judicially created doctrine of qualified immunity and the reluctance to impose sufficient sanctions in the event of prosecutorial (0r investigative) misconduct – it is a wholly rational belief to accept that we cannot “do a better job in investigating and adjudicating the innocence or guilt of people.”
By this I mean, the people responsible for investigating, analyzing and prosecuting the case should be exposed to the same judgement in the event they engaged in misconduct. The phrase, “you bet your life” comes to mind.
So while I am morally in favor of a death penalty, I am becoming more reluctant to believe in the ability of the state to do it right.
The case of Cameron Todd Willingham, among others, has lessened my ardor for execution except in cases that are (pardon the expression) clean kills.
The jury is still out on this one. There are arguments pro and con regarding the deterrent effect.
Even the WaPo admits a deterrent effect. Then, ignoring their previous story, they retract, but in the process of retracting, they lie. So judge for yourself.
Personally, I think the 2007 story is more accurate and its subsequent visit to the memory hole is for the same reason the NJ traffic study remains suppressed.
I prefer the Singaporean System. It lacks the more notable features that Midge objects to.
Didn’t David Grossmann also provide evidence of a significant deterrent effect in his study of psychology of killing back in the late 90’s?
I am much in accord with this comment. There are far too many instances where prosecutors and investigators have been too eager to “solve” a crime when the objective evidence was not there. I believe that as a society we need to be civically and morally educated to prize liberty so much that we accept the notion that “better 10 men go free than 1 man be unjustly incarcerated.” We also need a better innocence review process so that clear mistakes can be more easily rectified. It is maddening that the system is so stacked against considering post-conviction exoneration.
This weakness in our system is an argument for restricting the death penalty to certain cases, but not for eliminating the death penalty in all cases.
Life imprisonment creates risk for the guards and other prisoners. In the case of escape, pardon or clemency, it creates risk for the general population