Life vs. Death

Sunday, September 25th, 2011

I keep seeing death penalty supporters make arguments similar to this one:

The death penalty is irreversible, and in the case of a miscarriage of justice there can be no reparation to the condemned . . .

There are rejoinders: someone who is wrongly executed cannot ever be compensated, but can someone who was wrongly imprisoned for 10 years ever truly be compensated in any meaningful way? Punishment of the innocent is terrible to contemplate whatever the punishment, and yet society must punish and will always be imperfect.

Everyone who makes this argument should spend 20 minutes with a few people who were convicted of a capital crime, then exonerated and released after a decade or more in prison. I obviously can’t speak for every exoneree, but I’ve spoken to many. And I’d wager a good deal of my next paycheck that every one of them will tell you that (a) they’re pretty darned happy they weren’t executed, and (b) there’s a huge difference between incarcerating an innocent person and executing one.


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69 Responses to “Life vs. Death”

  1. #1 |  pam | 

    strike that 2nd legally.

  2. #2 |  c andrew | 

    Mike T wrote,

    Frankly, it might also be time to start discussing something even more radical: merging the civil and criminal courts into one unified legal system that would allow private parties to convene grand juries and bring their own civil-criminal charges against public employees.

    Mike, I’ve been advocating for about 20 years that we ought to allow criminal juries, once they’ve rendered a verdict in the trial at hand, to re-convene as a grand jury and indict anyone in the process they’ve just witnessed for malfeasance, including police, prosecutors and judges.

    Since jury members are not part of a permanently constituted group, we could thereby avoid the type of regulatory capture that occurs in almost every other instance of trying to hold the State responsible, eg., Citizen Review Boards (for cops) and the like.

    I don’t think that it would solve all the problems, but I think that it would help remove some of the insulation from reality that these actors currently enjoy.

    And such an indictment would remove immunity from the person in question for both criminal and civil motions.

  3. #3 |  Deoxy | 

    I’m friends with a kid doing life without. It’s no different than a living death sentence. etc

    This is an argument FOR the death penalty, pam. Indeed, it is essentially the argument that Radley is arguing AGAINST at the top!

    IMO opinion, as a death penalty supporter*, the ONLY argument that holds any water to me is that the system does too poor a job of determining guilt and innocence – that it is insufficient to the task. As best I can tell, that is the only argument that holds water to any well-reasoned death penalty supporter.

    The state sanctioning execution? Well, who should sanction it instead? Because it needs sanctioning in certain cases. The callus and casual murderer? Yeah, gone from society. Permanently.

    It is inherently and always unjust? Um, ok, we have nothing to talk about. We are talking past each other.

    Can’t be undone? Yeah, that’s the point.

    What is needed here is to engage pro-death penalty advocates about making the system work better in general.

    THIS. Oh bloody yes, THIS. Come tell me that the death penalty is evil, blah blah blah, and, unless I’m in the mood for debate-team-style rhetorical sparring, I’m done with you. There’s no reason to listen any further – we have a deep philosophical disagreement.

    But grant me that there are horrendously evil people in the world who need killing, but show me where the current system lets them off, or (most especially) gets the wrong person in their place, and that it needs improvement SO THAT the guilty are properly punished and the innocent properly not punished, and we can discuss how to make the system better.

    As long as you rail against the death penalty itself, you’re not going to get anywhere. That’s a philosophical point.

    Leave the death penalty on the table, just try to improve it’s application (even better, just try to improve justice in general), and you’ll have a lot more allies – actual improvement can be made. Even if you really ARE against the death penalty, I fail to see how having it applied only to those who actually are guilty of heinous crimes would not be a massive improvement over the current system.

  4. #4 |  Deoxy | 

    *I’ve wavering on the brink of the Ron Paul position – state-sanctioned execution for certain crimes is moral, but our actual system is not too error prone to make use of it.

    That’s what I mean about leave it on the table – there’s a very large block of the population that you’re not going to convince philosophically.

    You can show them the problems of the current system, and they can come to a point where they don’t want executions to be carried out right now for lack of certainty, but you won’t ever convince them that it is inherently immoral.

  5. #5 |  supercat | 

    #23 | CyniCAl | “So, because there’s the possibility that a person who is wrongly convicted and sentenced to life has less of a chance of exoneration than a person who is wrongly convicted and sentenced to death, the death penalty should persist?”

    I guess I would put it in terms of priorities. Which would be worse: a government executing one innocent person per year, or a government wrongfully imprisoning 1,000 innocent people per year for ten years each? If a government is doing both, which problem should merit more attention?

    I would posit that the number of people exonerated from death row implies that at least one of the following two problems exists and needs to be fixed:

    -1- An outrageous number of innocent people are being wrongfully convicted of crimes at all levels.

    -2- The government stacks the odds against defendants especially badly in death-penalty cases, which are supposed to have the strongest protections.

    The only way that anyone could argue that the number of people being wrongfully convicted of crimes at all levels isn’t outrageously high would be to argue that for some reason the wrongful-conviction percentage for death-penalty cases is higher than for other crimes. While that may be true, that in and of itself would indicate a problem which needs to be fixed.

    Were it not for the existence of the death penalty, it would be very difficult to get a meaningful and persuasive lower bound on the percentage of wrongful convictions for crimes at all levels. If a state has sentenced 100 people to death and 5 are exonerated, that’s a much more compelling demonstration of a 5%+ wrongful conviction rate than would be a finding of 50 wrongfully-convicted people among the general prison population, since one could respond to the latter statistic by suggesting that the people who worked to exonerate those 50 people chose inmates whose guilt was most doubtful, unlike the people who work to exonerate death-row inmates whose doubt is supposedly most certain.

  6. #6 |  JohnJ | 

    I don’t think that’s fair. The argument is whether it’s more merciful to execute someone slowly through imprisonment or more quickly. You’re creating a false comparison by only looking at those who’ve been exonerated while living, but people on death row have been exonerated before being executed too. What about those who weren’t proven innocent until after they died from languishing in prison? That’s the fair comparison, and I bet they’re not as grateful as you think.

  7. #7 |  Brian Scanlon | 

    One of the purposes of the death penalty is that it satisfies our society’s hunger for ritual murder. A public liturgy of death.

    This need has nothing to do with justice, with deterrence of future murders, with “closure” (whatever that means), or with any other of the many reasons that get trotted out every time someone gets executed.

    We have to keep society safe from dangerous convicted criminals. In the the US this could clearly be done by keeping the criminal in jail. For the rest of his life if necessary. But that would deny us the ritual killing that so many Americans delight in. Note for example the cheering that Gov. Perry received when he said that 200+ executions did not trouble him. Note also that we have brought back torture that something this so-called Christian nation can approve of.

  8. #8 |  JOR | 

    If you want to determine whether it’s more humane to kill someone or imprison them for a set amount of years, just give all the prisoners the opportunity to commit suicide without interference (or perhaps offer to kill them “humanely”). All the ones that kill themselves will be the ones who preferred death to life in prison for however long their terms were.

    There goes the whole “argument”.

  9. #9 |  JOR | 

    “I guess I would put it in terms of priorities. Which would be worse: a government executing one innocent person per year, or a government wrongfully imprisoning 1,000 innocent people per year for ten years each? If a government is doing both, which problem should merit more attention?”

    False premise: People against the death penalty around here are not also against imprisoning innocent people (or for that matter, people who are “guilty” of victimless crimes).
    Related: Anyone around here, to say nothing of Radley Balko, “gives more attention” to the death penalty than legal system corruption in general.

    Come on. This sort of thing is just so internally stupid on its face, how can anyone take it seriously?

  10. #10 |  JOR | 

    “Leave the death penalty on the table, just try to improve it’s application (even better, just try to improve justice in general), and you’ll have a lot more allies – actual improvement can be made.”

    No. You’ll have a few more allies (and lose a few allies), who are at least as politically irrelevant as you are. That’s not something worth abandoning principle for.

    It’s best to just stick to principle and be a crazy radical. Aim for radicalism and you’ll achieve gradual, imperfect change – if you’re lucky. Aim for gradual, imperfect, pragmatic change, and you won’t achieve a fucking thing no matter how lucky you are.

  11. #11 |  Boyd Durkin | 

    The argument is whether it’s more merciful to execute someone slowly through imprisonment or more quickly.

    How did you get this as the argument?

  12. #12 |  JOR | 

    “The same applies to the situation of using deadly force against, for instance, a home invader, which is also a choice not to be made lightly.”

    A home invader is not innocent. But sure, someone could mistake someone for a home invader who isn’t. And if they kill that person on that mistaken assumption they’re guilty of deliberately killing an innocent person, and should be treated accordingly. People who execute innocent prisoners are not treated accordingly.

  13. #13 |  TC | 

    Ya know if prosecutors were held truly responsible for some of the shit they pull to make themselves look better, ta hell with that criminal. I’ll git reelected n shit.

    Send an innocent man to the gallows, you git to change places with him/her!

    End of line!

    Take away their protections, like they take away yours, we would see something resembling a JUSTICE system return to our country.

  14. #14 |  jdb | 

    I haven’t had the pleasure of reading #42’s posts before, but I sense that he’s a rare literary talent renowned for his Byzantine inclinations.

    There is no such thing as a “living death sentence” outside of the existentialist sense in which we’re all marching toward death. The removal of a particular few rights by imprisonment is not comparable with execution, particularly in a nation that affords lwpp convicts the opportunity to continue their educations or intellectual development.

  15. #15 |  Fritz | 

    John Stuart Mill wrote,

    Much has been said of the sanctity of human life, and the absurdity of supposing that we can teach respect for life by ourselves destroying it. But I am surprised at the employment of this argument, for it is one which might be brought against any punishment whatever. It is not human life only, not human life as such, that ought to be sacred to us, but human feelings. The human capacity of suffering is what we should cause to be respected, not the mere capacity of existing. And we may imagine somebody asking how we can teach people not to inflict suffering by ourselves inflicting it? But to this I should answer—all of us would answer—that to deter by suffering from inflicting suffering is not only possible, but the very purpose of penal justice. Does fining a criminal show want of respect for property, or imprisoning him, for personal freedom? Just as unreasonable is it to think that to take the life of a man who has taken that of another is to show want of regard for human life. We show, on the contrary, most emphatically our regard for it, by the adoption of a rule that he who violates that right in another forfeits it for himself, and that while no other crime that he can commit deprives him of his right to live, this shall.

  16. #16 |  JohnJ | 

    #61 | Boyd Durkin: “How did you get this as the argument?”

    The only realistic alternative being offered is life in prison. While there are those who argue for various kinds of third ways, I haven’t heard what I consider a reasonable one. But maybe that’s just me.

  17. #17 |  supercat | 

    #59 | JOR | //False premise: People against the death penalty around here are not also against imprisoning innocent people (or for that matter, people who are “guilty” of victimless crimes).//

    If you really think that’s what I was trying to say, then you grossly misunderstood me. My argument is that if one’s goal is to minimize the harm done by unjust convictions, that goal could be more effectively achieved by using the false-conviction rate in death-penalty cases to raise public outrage over false-conviction rates in general, than by merely using it to argue against the death penalty. I by no means wish to imply that Randy Balko or anyone else who argues against the death penalty doesn’t care about wrongful convictions in non-capital cases, but I think it likely that abolishing the death penalty would make it harder to raise public awareness and outrage about conviction rates in general, and certainly believe that the time and effort spent trying to abolish the death penalty could be more effectively spent other ways.

  18. #18 |  PEG | 

    Thanks for linking to my post. I’ll note that I go on to say that these rejoinders are imperfect and if you disagree with them I won’t.

  19. #19 |  John Thacker | 

    So, does the same argument mean that waterboarding and Gitmo are infinitely preferable to the current policy of just killing suspected terrorists with troops or drones?