The reason for a death penalty

[CFLarsen]

The doctrine of precedent is a judicial practice that promotes the virtue of certainty and predictability in judge-created common law. This can occur at the expense of Justice.

If bad law - i.e., a case with an unjust result - becomes binding precedent, then injustice is hardwired into the common law. This happens. Typically, it happens when societal norms change while the law remains statically bound to a precedent that is no longer palatable. The means to change this are twofold: 1)Over-ruling the precedent and thus establishing a new precedent, or 2)Legislation.

Common law countries are trending more and more towards codification, so legislation is frequently the tool of choice. But even legislation can be open to common law interpretation.

I didn't say that precedent was final, set in stone.

 

[D'rok]

I didn't say that precedent was final, set in stone.

You said it was Justice. It isn't. Justice often requires breaking with precedent.

 

[D'rok]

The fallacy of the perfect rule book continues to spread.

I'd be tempted to call it woo.

D

I agree. Damn that Napoleon! Maybe Hegel was right after all?

I don't know how rigid things are getting in the USA, but aside from Quebec, there's still a reasonable amount of flexibility in the law up here.

 

[D'rok]

That is to assume that the only kind of compensation is to the individual who is executed. I reiterate that while the unjust loss of an individual life is a terrible mistake, it is not, a given that it is the worst possible mistake.

Completely irrelevant. Unless you are saying that it is a worse mistake to not execute a monster than it is to execute an innocent. That just leads right back to the moral impasse.

No, it shows that errors can have tremendous consequences regardless of the direction of the errors.

Which is also completely irrelevant to the question of capital punishment. Errors like OJ happen regardless of the sentence he would face if convicted.

I disagree. While the trial and sentencing phase of the justice system are separate phases, they are still part of the same case. If you render the wrong verdict, then you have, by definition, rendered the wrong sentence.

Still irrelevant to the core issue. Rendering the wrong sentence occurs whether or not murder is punished with death or with imprisonment. The murderer either unjustly escapes death, or he unjustly escapes imprisonment. It wouldn't matter if he unjustly escaped a harsh scolding - the sentence does not affect the error.

The goal of the legal system is (or at least should be, IMO) to improve society. Unless you can make the case that keeping a convicted murderer alive always improves society, then I do not believe you can logically make the case that you should always render a sentence that keeps a murderer alive. Such is the problem with absolutes.

It sure is. I could flip that right around on you:
Unless you can make the case that executing a convicted murderer never harms society, then I do not believe you can logically make the case that you should ever render a sentence that executes a murderer.

But I wouldn't do that, because that argument is just as specious as the inverse.

There is no "proof" of anything outside of math, but it would be statistically staggering to suggest that a single condition (the superior consequences of a life sentence versus a death sentence) has prevailed throughout the entire history of the legal system. The odds against that are astronomical.

True. The standards in criminal justice are those of "reasonableness". I am not convinced beyond a reasonable doubt that execution, on a balance of probabilities, benefits society.

It cannot be overcome as long as you accept the axiom that destroying a human life is the worst possible thing that one can do in a society. I do not accept that axiom. I accept it as usually true, but not always.


I will agree that there are almost certainly cases that I am more morally troubled by allowing very dangerous creatures to live than I am by killing them.

It always comes down to the moral impasse. I am more troubled by killing the innocent than I am by not executing the deserved. And I can only avoid killing the innocent by never executing the deserved. Unfortunate, but true.

 

[Tricky]

Completely irrelevant. Unless you are saying that it is a worse mistake to not execute a monster than it is to execute an innocent. That just leads right back to the moral impasse.

I'm saying it can be. It is not a moral impasse, it is recognizing that there are a wide variety of situations which may demand different actions.

Which is also completely irrelevant to the question of capital punishment. Errors like OJ happen regardless of the sentence he would face if convicted.

Yes, but for some reason, anti-death penalty people seem to be sanguine about the permanent effects of these errors, or so it appears to me.

Still irrelevant to the core issue. Rendering the wrong sentence occurs whether or not murder is punished with death or with imprisonment. The murderer either unjustly escapes death, or he unjustly escapes imprisonment. It wouldn't matter if he unjustly escaped a harsh scolding - the sentence does not affect the error.

I disagree most strongly. The sentence should reflect the crime. If sentencing does not match the crime, then the good to society is lessened.

It sure is. I could flip that right around on you:
Unless you can make the case that executing a convicted murderer never harms society, then I do not believe you can logically make the case that you should ever render a sentence that executes a murderer.

You could flip it around only if I claimed that you should always excecute murderers, which I have gone to great pains to explain that I am not saying. I am not making an absolute statement, as you are when you say we should never execute murderers. So no, that flip doesn't work.

But I wouldn't do that, because that argument is just as specious as the inverse.

I must misunderstand what you are saying then, because it seems to me you are saying that we should never, under any circumstances, execute murderers, regardless of the consequences. Either that or you are saying the choice to not execute murderers is always more beneficial to society. Either way, you are making an absolute statement which does not recognize special cases.

True. The standards in criminal justice are those of "reasonableness". I am not convinced beyond a reasonable doubt that execution, on a balance of probabilities, benefits society.

In most cases, I would agree with you, but I wish to allow room for special cases. I have tried to make it very clear that I am very much against widespread use of the death penalty. It is usually not the best solution, in my opinion. In spite of that, I've been accused of having a "lust for blood". But I consider the source. I don't think you are saying that at all.

It always comes down to the moral impasse. I am more troubled by killing the innocent than I am by not executing the deserved. And I can only avoid killing the innocent by never executing the deserved. Unfortunate, but true.

Yet you will still take the chance of killing the innocent by allowing an incurable homicidal maniac to remain alive. Our prison system is no more infallible than our justice system. You cannot guarantee that he will not kill again, in spite of your best efforts. There is only one way to be sure of that. Unfortunate, but true.

 

[D'rok]

Yes, but for some reason, anti-death penalty people seem to be sanguine about the permanent effects of these errors, or so it appears to me.

Even if true, it doesn't make a case either for or against capital punishment.

I disagree most strongly. The sentence should reflect the crime. If sentencing does not match the crime, then the good to society is lessened.

I said the sentence does not affect the error. Talking about miscarriages of justice at the trial stage just has no bearing whatsoever on arguments for or against capital punishment.

You could flip it around only if I claimed that you should always excecute murderers, which I have gone to great pains to explain that I am not saying. I am not making an absolute statement, as you are when you say we should never execute murderers. So no, that flip doesn't work.

I must misunderstand what you are saying then, because it seems to me you are saying that we should never, under any circumstances, execute murderers, regardless of the consequences. Either that or you are saying the choice to not execute murderers is always more beneficial to society. Either way, you are making an absolute statement which does not recognize special cases.

You're right that my flip doesn't really work. What I'm trying to say is that the conclusion that murderers should never be executed is not predicated on the position that this will always benefit society. It's entirely possible that in particular circumstances, the opposite could be true. It's a question of probabilities and balance. I am convinced beyond a reasonable doubt that, on a balance of probabilities, executing people is bad for society, and that executing innocent people is even worse. In other words, those particular circumstances where letting someone live may be more harmful than killing them are, when balanced against the evils of executing the innocent, unimportant.

In most cases, I would agree with you, but I wish to allow room for special cases. I have tried to make it very clear that I am very much against widespread use of the death penalty. It is usually not the best solution, in my opinion. In spite of that, I've been accused of having a "lust for blood". But I consider the source. I don't think you are saying that at all.

You clearly aren't displaying bloodlust. Crom is disappointed in you.

Yet you will still take the chance of killing the innocent by allowing an incurable homicidal maniac to remain alive. Our prison system is no more infallible than our justice system. You cannot guarantee that he will not kill again, in spite of your best efforts. There is only one way to be sure of that. Unfortunate, but true.

Yes. But for the same reasons as above, I find this potential moral evil to be less troublesome than the moral evil of executing the innocent.

 

[Tricky]

I said the sentence does not affect the error.

I suppose it is a matter of semantics. To me, the error includes the consequences of the error. The more severe the consequences, the bigger the error. I can see it argued either way though.

Talking about miscarriages of justice at the trial stage just has no bearing whatsoever on arguments for or against capital punishment.

I can't see why not. From personal experience, it is impossible to keep the thought of punishment out or your mind even during the trial phase of a court case. If you can, you're a very special person. But as I say, the case includes both trial and (if necessary) sentencing.

You're right that my flip doesn't really work. What I'm trying to say is that the conclusion that murderers should never be executed is not predicated on the position that this will always benefit society. It's entirely possible that in particular circumstances, the opposite could be true. It's a question of probabilities and balance. I am convinced beyond a reasonable doubt that, on a balance of probabilities, executing people is bad for society, and that executing innocent people is even worse. In other words, those particular circumstances where letting someone live may be more harmful than killing them are, when balanced against the evils of executing the innocent, unimportant.

Well, I do understand your position, but I do not share it. I am not convinced of my correctness beyond a reasonable doubt, but at present, I have not been deconvinced by this line of discussion. Maybe I will be some day. Certainly it is entertaining and enlightening to discuss it with reasonable people.

You clearly aren't displaying bloodlust. Crom is disappointed in you.

I suppose I must put on the damn armor and go rape and pillage to keep Crom happy. *sigh*. Same old same old.

Yes. But for the same reasons as above, I find this potential moral evil to be less troublesome than the moral evil of executing the innocent.

I feel you are too sympathetic to the "innocent" convicted criminals. I believe it is more important to worry about the rights of the victims and potential victims of crimes, and I feel that in some cases, the death penalty accomplishes this. Not all. Not most. Not even many. But some.

 

[CFLarsen]

You said it was Justice. It isn't. Justice often requires breaking with precedent.

Schmemantics.

 

[Darat]

I did. What am I missing?

...snip...

Comprehension.

 

[Darat]

Schmemantics.

No Claus it's a very important distinction - you argued that for justice to be done requires keeping to precedent, but that is not justice. Justice is doing the right thing at the right time for the right reasons.

Even though it may be very clear under the law and precedent if you do crime X, punishment Y should follow holding to taht regidly can in fact be a example of injustice rather than justice.

The law is an imperfect tool as we can only codify the world to a certain degree, to wish to establish the codification you have argued for in this thread would be to remove the concept of justice from the legal system.

That is why the distinction D'rok the Lacone is emphasising is not "semantics" but a very important distinction. Following the law to the letter does not ensure justice. (Albeit pragmatically day-to-day it may most of the time help to ensure justice is carried out.)

 

[CFLarsen]

No Claus it's a very important distinction - you argued that for justice to be done requires keeping to precedent

But not forever.

 

[bigred]

Maybe not literally, but you can restore their liberty and compensate them for your mistake.

"So sorry you spent the last 20 yrs in jail but here's a nice chunk of change to 'compensate.' "

I don't think so.....

 

[Suddenly]

I feel you are too sympathetic to the "innocent" convicted criminals. I believe it is more important to worry about the rights of the victims and potential victims of crimes, and I feel that in some cases, the death penalty accomplishes this. Not all. Not most. Not even many. But some.

A very dangerous game. I'm more worried about government that will take someone's liberty or life based on such pragmatism. I see too much of it to really feel safe.

Other than it being the prison nobody escapes from, the death penalty serves mainly as retribution, which is a valid concern given the very human need for same. Calling such things an appeal to base instincts oversimplifies and denies human nature.

The big elephant in the room is that our system of criminal justice is badly broken and there is nobody in a hurry to fix things. We base innocence and guilt on antiquated notions that vastly overstate eyewitness testimony and the somehow magical ability of a common juror to tell whether someone is lying by watching them speak. Nerves cause people to do funny things, and lack of intelligence causes people to say funny things under cross-examiniation. Meanwhile most state witnesses have testified a million times and have had classes on how to testify.

Many jurisdictions allow for foresnic "science" that has no objective basis yet claims 100% reliability. Crime labs are often under the oversight of law enforcement.

And so on. I used to defend it, but I'm a bit wiser these days.

Here's a quick example of what I mean by broken:

(NYT article... may need registration)

Judge Laura Denvir Stith seemed not to believe what she was hearing.

A prosecutor was trying to block a death row inmate from having his conviction reopened on the basis of new evidence, and Judge Stith, of the Missouri Supreme Court, was getting exasperated. ''Are you suggesting,'' she asked the prosecutor, that ''even if we find Mr. Amrine is actually innocent, he should be executed?''

Frank A. Jung, an assistant state attorney general, replied, ''That's correct, your honor.''

That exchange was, legal experts say, unusual only for its frankness.

We could call this an isolated incident, but the real problem is that:

Jeremiah W. Nixon, Missouri's attorney general, said Mr. Jung's response to Judge Stith was a legally correct answer to an inflammatory hypothetical question. The point Mr. Jung was trying to make, he said, is that there must come a time when cases can be closed.

She's right. We can talk about appellate review until blue in the face, but the law only concerns itself with procedure. The only question is whether there is a fair trial. Absent absurdly drastic cases, a jury verdict of guilt is final. You are guilty. This is why it seems cases get reversed on technical grounds; in reality that is all an appeals court considers.

Popular outcry of those aware of the Amrine case and the like is moving the system in a better direction... but even when new evidence is overpowering a court has very wide latitude to disregard it.

 

[Tricky]

I hear what you are saying, Suddenly, and I agree that questionable cases shold not result in the death penalty. There are some, however, which are so clear cut and so heinous as to be beyond any reasonable doubt either in the guilt of the defendant or in their danger to society. Yes, they are rare, as the death penalty should be.

 

[Suddenly]

I hear what you are saying, Suddenly, and I agree that questionable cases shold not result in the death penalty. There are some, however, which are so clear cut and so heinous as to be beyond any reasonable doubt either in the guilt of the defendant or in their danger to society. Yes, they are rare, as the death penalty should be.

I have no problems with the death penalty per se, more the implication of ends justifying the means w/r/t potential victims is the dangerous game I refer to.

Here is an example. I'm handling an old murder case. Guy was convicted on circumstantial evidence and lots of it. He either killed these people or it is all a mind-boggling coincidence. Out of nowhere comes a confession from a serial killer on death row. The serial killer knows a bunch of detail about the crime, he was in the state at the time, and the murders fit his MO completely. Completely fits with all of it being a boggling coincidence.

Should be a new trial. The problem is the client scared the heck out of everyone. He is known to physically attack his attorneys, he threatens attorneys and others that "I know where you live and have friends on the outside that owe me favors", and when sentenced (life/no parole), he promised to kill pretty much everybody involved if he managed to get out. His prison record is spotty, spends a lot of time in solitary, which doesn't help.

So, we have a convicted murderer, good chance he is wrongfully convicted, but he's off his rocker and a total danger to various persons were he let on the street. No surprise, the judge bends over backwards to make legal finding denying a new trial. The judge wouldn't even let him in the courtroom for the hearing, insisted he be present only via videoconference.

Right and wrong is too big of a question for me in these kinds of cases. I just do my job.

It is a bit of a head-scratcher though. A very dangerous game.

 

[Zarathustra]

From an anthropological point of perspective, Execution addresses nothing of the root causes of criminality in a society, other than to starkly point out the fact that it is in the denied reality of such a society; an expression of state sanctioned revenge.

 

[bigred]

state sanctioned revenge.

...ie, justice. While not the same thing of course, revenge and justice are old dancing partners.

This is about a fitting punishment for a crime. Some feel there are cases when captial punishment fills the bill, while others don't, that's all.

 

[Halcyon Dayz]

IMO justice was invented to replace revenge.

All those blood feuds must have had a disruptive effect in the earliest civilisations.
By having the State doing the killing the blood with be on the hands of an immune party.
(Which is actually the reason why in Saudi-Arabia executioners are always Africans, they don't belong to any of the tribes.)

I would like to think that we had grown a bit more sophisticated and mature over the last 5 millennia.
Justice should serve to protect society and its members, not necessarily to make them feel good.

 

[Tricky]

I have no problems with the death penalty per se, more the implication of ends justifying the means w/r/t potential victims is the dangerous game I refer to.

Here is an example. I'm handling an old murder case. Guy was convicted on circumstantial evidence and lots of it. He either killed these people or it is all a mind-boggling coincidence. Out of nowhere comes a confession from a serial killer on death row. The serial killer knows a bunch of detail about the crime, he was in the state at the time, and the murders fit his MO completely. Completely fits with all of it being a boggling coincidence.

Should be a new trial. The problem is the client scared the heck out of everyone. He is known to physically attack his attorneys, he threatens attorneys and others that "I know where you live and have friends on the outside that owe me favors", and when sentenced (life/no parole), he promised to kill pretty much everybody involved if he managed to get out. His prison record is spotty, spends a lot of time in solitary, which doesn't help.

So, we have a convicted murderer, good chance he is wrongfully convicted, but he's off his rocker and a total danger to various persons were he let on the street. No surprise, the judge bends over backward to make legal finding denying a new trial. The judge wouldn't even let him in the courtroom for the hearing, insisted he be present only via videoconference.

Right and wrong is too big of a question for me in these kinds of cases. I just do my job.

It is a bit of a head-scratcher though. A very dangerous game.

I've been hesitant to bring up this point because I don't want to appear to be prejudiced against people in prison, but this case that Suddenly mentions is too exemplary to ignore.

There really aren't very many innocents on death row. There are some, possibly too many, who are innocent of the crimes they were convicted for, but there's a pretty good chance that they are not nice people. Now I am not saying that because a person is a head case and violent that he deserves to die. I am saying that calling these persons "innocents" is... well... generous to a fault. It is rare, even in Texas, to send a person to death row who has no priors or no history of violence.

Usually when someone is sent to death row, it is because the crime is against someone who, to use popular parlance, didn't deserve it. Killing rival gang members or killing in a bar fight, or even killing a spouse's lover is not the sort of case where prosecutors seek the death penalty most of the time. Usually it is in cases with the proverbial "senseless killing". While it occasionally happens that a "senseless killer" is a person with no criminal history, such cases are as rare as white crows.

Does a person whose prior life of crime deserve to die simply because he is a bad person, rather than because he committed the crime of which he is charged? No. He does not. Thanks to people like Suddenly, they rarely do. Occasionally, but rarely. But is this same person truly deserving of the label of "innocent"? Well, we are all innocent in some ways and worldly in others. I'd say these guys are more worldly than most.

If errors are made, I prefer them to be made in favor of those who more truly deserve the adjective "innocent". Suddenly's example above shows that even if innocent of the crime with which they are charged, the defendants in such cases are often far removed from anything that we could reasonably call innocent in the general sense.

 

[digithead]

Then don't do it. Nobody is forcing anyone else to take the role of executioner. Sorry but while I'm all for whatever psychological assistance such a person wants/needs and not saying it should be disregarded, IMO that's a ridiculous reason not to implement capital punishment. Based on that logic, we shouldn't send them to jail either, because seeing people rot away bit by bit in jail is upsetting too. In fact no one should ever be punished if it's upsetting to the punishers, no matter how deserved.

Regardless of whether an occupation is voluntary or not, the U.S. still implements basic health and safety regulations to protect worker health. If something that threatens worker health can be eliminated with improvement to society, then it should be eliminated. Regardless of one's moral position on the capital punishment, the death penalty has been shown to have no deterrent effect, it costs more than lifetime incarceration, and it is riddled with racial and class bias in its application...

Plus there is a marked difference between imprisoning someone as an occupation and killing someone as an occupation...

And this is not a discussion of if someone should be punished but how someone should be punished. Ergo, the effects on staff administering the punishment should be addressed in policy...

I do research into this very area and correctional officer stress is one of the occupational hazards of the job. It is one of the reasons why it is so hard to recruit and retain officers. Administering the death penalty is another occupational hazard that could easily be avoided...

Also, the post-execution burden is not only shared by the correctional officers themselves but also by the wardens and prison officials supervising the execution, prison staff involved in support operations of the execution, the governor and his or her staff involved with denial or approval of appeals, etc...

And research shows that this burden expresses itself in higher divorce rates, substance abuse, and other stress disorders amongst those that administer the death penalty. If you didn't notice, these are things hurt families, disrupt our neighborhoods, and threaten our larger society..

Still think it's a ridiculous reason?