Category: Crime and Punishment

American Digest

A tip of the New Year's hat to the proprietor of American Digest for his link to my recent post on the paradoxes of illegal immigration.  Via his site I came to the Powerline post, A Week's Worth of Self-Defense.  For repelling a home invasion, and separating soul from body in a manner most efficient, there is nothing quite like a shot gun loaded with double aught buck shot.

Speaking of home invasions, there was one in Mesa, Arizona recently.  The invader shot to death a young mother who was alone except for her infant and her grandfather.  A reporter described it as a "home invasion gone badly."

As opposed to what, a home invasion that went well?  And what would that be, one in which there was only a rape, and terrorization of the occupants of the house, and property damage, and the stealing of property?

One more reason to oppose liberals is that they have a casual attitude towards criminal behavior, an attitude betrayed by the sort of egregious and widespread misuse of language just cited. 

For more on the casual attitude towards crime, with a link to the inimitable Dalrymple, see Britain and the Barbarians.

What Ever Happened to Bernie Goetz?

Bernard Goetz, mild-mannered electronics nerd, looked like an easy mark, a slap job.  And so he got slapped around, thrown through plate glass windows, mugged and harrassed.  He just wanted to be left alone to tinker in his basement.  One day  he decided not to take it any more and acquired a .38 'equalizer.'  And so the black punks who demanded money of him on the New York subway in December of '84 paid the price to the delight of conservatives and the consternation of liberals. To the former he became a folk hero, to the latter a 'racist.'  It was a huge story back then.  One of the miscreants, James Ramseur, has been found dead of an apparent drug overdose.

Ramseur was freed from prison last year after serving 25 years for a rape, according to NBC NewYork.com. He was one of four black teens shot by Goetz on a train on Dec. 22, 1984, in a shooting that earned Goetz the nickname of "subway vigilante" by city newspapers.

Meanwhile Goetz, 64, flourishes and runs a store called "Vigilante Electronics."

A heart-warming story on this, the eve of Christmas Eve.

Death Penalty, Abortion, and Certainty

Some opponents of the death penalty oppose it on the ground that one can never be certain whether the accused is guilty as charged.  Some of these people are pro-choice.  To them I say: Are you certain that the killing of the unborn is morally permissible?  How can you be sure?  How can you be sure that the right to life kicks in only at birth and not one  minute before?  What makes you think that a mere 'change of address,' a mere spatial translation from womb to crib, confers normative personhood and with it the right to life?  Or is it being one minute older that confers normative personhood?  What is the difference that makes a moral difference — thereby justifying a difference in treatment — between unborn human individuals and infant human individuals?

Suppose you accept the general moral prohibition against homicide.  And suppose that you grant that there are legitimate exceptions to the general prohibition including one or more of the following: self-defense, just war, suicide, capital punishment.  Are you certain that abortion is a legitimate exception?  And if you allow abortion as a legitimate exception, why not also capital punishment?

After all, most of those found guilty of capital crimes actually are guilty and deserving of execution; but none of the unborn are guilty of anything.

My point,then, is that if you demand certainty of guilt before you will allow capital punishment, then you should demand certainty of the moral permissibility of abortion before you allow it.  I should add that in many capital cases there is objective certainty of guilt (the miscreant confesses, the evidence is overwhelming, etc.); but no one can legitimately claim to be objectively certain that abortion is morally permissible. 

Can One Consistently be Pro-Life and Pro-Death Penalty?

This topic just won't go away.  Recent example:

[Texas Governor Rick] Perry’s identification as a strong supporter of “a culture of life” and what he called the “ultimate justice” of capital punishment, however, raises some potentially thorny questions about the meaning of being “pro-life.” In campaign season, the question is whether American voters, especially voters who identify as “pro-life,” are going to raise concerns about why Perry’s position doesn’t represent what some Catholic theologians call “a consistent ethic of life,” opposition to both legalized abortion and capital punishment.

The above-mentioned Catholic theologians are most likely just confused.  There is no defensible sense in which it is 'inconsistent' to be both pro-life and pro-death penalty.  I prove this here.

Britain and the Barbarians

Commentary by Theodore Dalrymple.  You may have noticed that liberals have a exasperatingly lenient and casual attitude toward criminal behavior:

A single example will suffice, but one among many. A woman got into an argument with someone in a supermarket. She called her boyfriend, a violent habitual criminal, "to come and sort him out." The boyfriend was already on bail on another charge and wore an electronic tag because of another conviction. [. . .]  The boyfriend arrived in the supermarket and struck a man a heavy blow to the head. He fell to the ground and died of his head injury. When told that he had got the "wrong" man, the assailant said he would have attacked the "right" one had he not been restrained. He was sentenced to serve not more than 30 months in prison. Since punishments must be in proportion to the seriousness of the crime, a sentence like this exerts tremendous downward pressure on sentences for lesser, but still serious, crimes. 

So several things need to be done, among them the reform and even dismantlement of the educational and social-security systems, the liberalization of the labor laws, and the much firmer repression of crime.

The sentence I bolded is very important. This is why a ban on the death penalty is very foolish besides being morally obtuse.  But there is no common sense on the Left, so much so that contemporary liberalism is arguably more of a mental aberration than a cogent  position on social and political questions.

Flash Mobs

Another indicator of the decline of the West.  And another argument for concealed carry.

And of course there is a Pee Cee taboo on mentioning any of this:

The hateful murders of Matthew Shephard, who was gay, and James Byrd, Jr., who was black, were memorialized with national legislation. When similar crimes are committed by blacks against whites, they are greeted with ignominious silence. Just ask your friends how many of them are familiar with the murder of Channon Christian and Christopher Newsome, or David Graham. How many are familiar with Hoang Nguyen, who was killed in a senseless "game" called the knock-out game, in which mostly black attackers attack mostly non-black victims?

Alan Dershowitz on the Casey Anthony Trial

Here it is in toto with my comments in blue.

"This case [is] about seeking justice for Caylee . . . ." So argued the prosecutor in the Casey Anthony murder case. He was wrong, and the jury understood that.

A criminal trial is never about seeking justice for the victim. If it were, there could be only one verdict: guilty. That's because only one person is on trial in a criminal case, and if that one person is acquitted, then by definition there can be no justice for the victim in that trial.

Dershowitz is making an important point, but I wonder if his formulation isn't untenably extreme.  The important point is that a criminal trial can issue in the correct result whether or not justice is achieved for the victim.  If the correct result is an acquittal, then of course there is no justice for the victim in that trial.  But if the correct result is a conviction, then there is justice for the victim in that trial.  So why does D. say that a criminal trial is NEVER about seeking justice for the victim?  It seems to me that what he should say is that a criminal trial is not first and foremost about seeking justice for the victim, but about making sure that the defendant is not wrongly convicted.  Surely D. does  not want to suggest that criminal proceedings have nothing to do with justice.

The glory of our system of justice is the (defeasible) presumption of innocence:  the accused is presumed innocent until proven guilty.  This puts the burden of proof in a criminal trial where it belongs, on the state.  The prosecution must prove that the defendant is guilty; the defense is under no obligation to prove that the defendant is innocent.  In a criminal proceeding all the defense has to do is raise a reasonable doubt as to the guilt of the accused.

This is not well- or widely-understood.  Did you see The O'Reilly Factor last night?  The sweet Laura Ingram, who has been to law school, couldn't get through to the pugnacious and pig-headed O'Reilly.  He seemed not to understand the bit about presumption of innocence and burden of proof, nor did he seem to appreciate that the probative bar in a criminal trial is set very high:  the accused must be shown to be guilty beyond a reasonable doubt and not merely by a preponderance of the evidence.

A criminal trial is neither a whodunit nor a multiple choice test. It is not even a criminal investigation to determine who among various possible suspects might be responsible for a terrible tragedy. In a murder trial, the state, with all of its power, accuses an individual of being the perpetrator of a dastardly act against a victim. The state must prove that accusation by admissible evidence and beyond a reasonable doubt.

Yes indeed.

Even if it is "likely" or "probable" that a defendant committed the murder, he must be acquitted, because neither likely nor probable satisfies the daunting standard of proof beyond a reasonable doubt. Accordingly, a legally proper result—acquittal in such a case—may not be the same as a morally just result. In such a case, justice has not been done to the victim, but the law has prevailed.

This is basically right, but it should be pointed out that 'reasonable doubt' is a vague phrase. It would seem that at some point the probability that the defendant committed the murder would be so great that it becomes unreasonable to doubt that the defendant did it. Or is Dershowitz claiming that certainty is required for a legally proper conviction?

Ask yourself whether the following scenario would raise a reasonable doubt.  Jones is charged with murder.  His defense is that he has an identical twin brother who was kidnapped at birth but has recently surfaced in order to pin the murder on Jones.  No one is able to cast doubt on Jones' story: the defendant's parents are dead, the birth records were lost or stolen, etc.  There are credible eye witnesses that testify under oath that they saw Jones do the dastardly deed. But what they saw, of course, is consistent with the identical twin's having committed the crime. (Example adapted from James Cargile, "On the Burden of Proof," Philosophy, January 1997, p. 77)

 This scenario shows, I think, that it is not certain that Jones did the foul deed.  But ought this defense raise a reasonable doubt?  I would say no.  It is just too far-fetched and improbable.  So certainty cannot be required for a conviction.  If so, then probability would seem to be relevant, contrary to what Dershowitz claims.

For thousands of years, Western society has insisted that it is better for 10 guilty defendants to go free than for one innocent defendant to be wrongly convicted. This daunting standard finds its roots in the biblical story of Abraham's argument with God about the sinners of Sodom.

Abraham admonishes God for planning to sweep away the innocent along with the guilty and asks Him whether it would be right to condemn the sinners of Sodom if there were 10 or more righteous people among them. God agrees and reassures Abraham that he would spare the city if there were 10 righteous. From this compelling account, the legal standard has emerged.

That is an important point that those who wish to suppress every vestige of our Judeo-Christian heritage ought to think about.

That is why a criminal trial is not a search for truth. Scientists search for truth. Philosophers search for morality. A criminal trial searches for only one result: proof beyond a reasonable doubt.

Again, this strikes me as an extreme way of putting an otherwise excellent point.  Does the good professor mean to suggest that there is no search for truth in a criminal trial?  And does he really want to suggest that proof and truth have no relation one to the other?  Does he think that proof beyond a reasonable doubt does not make it more likely than not that truth has been reached?

A civil trial, on the other hand, seeks justice for the victim. In such a case, the victim sues the alleged perpetrator and need only prove liability by a preponderance of the evidence. In other words, if it is more likely than not that a defendant was the killer, he is found liable, though he cannot be found guilty on that lesser standard.

dershowitz

AP

That is why it was perfectly rational, though difficult for many to understand, for a civil jury to have found O.J. Simpson liable to his alleged victim, after a criminal jury had found him not guilty of his murder. It is certainly possible that if the estate of Caylee Anthony were to sue Casey Anthony civilly, a Florida jury might find liability.

Exactly right.

Casey Anthony was not found innocent of her daughter's murder, as many commentators seem to believe. She was found "not guilty." And therein lies much of the misunderstanding about the Anthony verdict.

True, she was found 'not guilty.'  That is the correct terminology.  And to be found not guilty is not the same as to be innocent.  The misunderstanding of some commentators is to think that being found not guilty is an affirmation of the defendant's innocence.  The finding of 'not guilty,' however, is nothing more than the judgment that the evidence for conviction was insufficient, that the defendant was not proven guilty beyond a reasonable doubt.  That is of course consistent with the defendant having committed the crime with which she is charged.

This misunderstanding is exacerbated by the pervasiveness of TV shows about criminal cases. On television and in the movies, crimes are always solved. Nothing is left uncertain. By the end, the viewer knows whodunit. In real life, on the other hand, many murders remain unsolved, and even some that are "solved" to the satisfaction of the police and prosecutors lack sufficient evidence to result in a conviction. The Scottish verdict "not proven" reflects this reality more accurately than its American counterpart, "not guilty."

'Not proven' is actually a better and more accurate phrase. 

Because many American murder cases, such as the Casey Anthony trial, are shown on television, they sometimes appear to the public as if they were reality television shows. There is great disappointment, therefore, when the result is a verdict of not guilty. On the old Perry Mason show, the fictional defense lawyer would not only get his client acquitted but he would prove who actually committed the murder. Not so in real life.

The verdict in the Casey Anthony case reflected the lack of forensic evidence and heavy reliance on circumstantial inferences. There was no evidence of a cause of death, the time of death, or the circumstances surrounding the actual death of this young girl. There was sufficient circumstantial evidence from which the jury could have inferred homicide. But a reasonable jury could also have rejected that conclusion, as this jury apparently did. There are hundreds of defendants now in prison, some even on death row, based on less persuasive evidence than was presented in this case.

Juries are not computers. They are composed of human beings who evaluate evidence differently. The prosecutors in this case did the best they could with the evidence they had, though I believe they made a serious mistake in charging Casey Anthony with capital murder and introducing questionable evidence, such as that relating to the "smell of death" inside the trunk of Casey Anthony's car.

The defense also made mistakes, particularly by accusing Ms. Anthony's father of sexually abusing her. Although they leveled this unfounded accusation in an effort to explain why Casey had lied, it sounded like the kind of abuse excuse offered to justify a crime of violence. But a criminal trial is not about who is the better lawyer. It is about the evidence, and the evidence in this case left a reasonable doubt in the mind of all of the jurors. The system worked.

Capital Punishment and Deterrence

Bill Keezer e-mails:

With respect to capital punishment: When I was a lab-tech at Ball State University, one of the professors was telling me about a demonstration of static electricity he did at the state prison in Pendleton, IN. He was using a Van de Graaff generator to create long, spectacular sparks and light neon tubes off the fingers of volunteers. The key thing in what he told me was a con asked him, “Can you fix the chair?” meaning of course could he prevent the electric chair from killing a person.

If the death penalty is not a deterrent, then the question is meaningless.

Right.  Of course the death penalty is a deterrent.  The only interesting question is why liberals don't or won't admit it.  Part of the explanation is that liberals won't admit that criminals are for the most part rational, not insane, and that there is such a thing as evil, and what it presupposes, freedom of the will.  It is characteristic of liberals to speak of murders as senseless, as in the case of the mother of one of the Long Island pharmacy shooting victims.

But the murders made all the sense in the world.  Dead men tell no tales.  That piece of folk wisdom supplies an excellent reason to kill witnesses in the absence of any strong incentive not to do so.   In one sense of 'rational,' a rational agent is one who chooses means conducive to the end in view.  If the end in view is to score some swag and not get caught, then it is perfectly reasonable to kill all witnesses to the crime especially given the laxity of a criminal justice system in which the likelihood of severe punishment is low. 

Liberals are  promiscuous in their use of the 'disease model.'  For example, they typically believe that alcoholism is a disease, a view refuted by Herbert Fingarette in Heavy Drinking: The Myth of Alcoholism as a Disease (University of California Press, 1988).  They also misuse the word 'addiction' in connection with nictoine use, as if one could be addicted to smoking.  Suppose you smoke a couple packs a day and I offer you a million dollars if you go one month without smoking.  Will you be able to do it?  Of course.  End of discussion. For more on the noble weed, see Alcohol,Tobacco, and Firearms.  It is the same on Planet Liberal with criminals: they must be 'sick,' or 'insane.' Nonsense.  Most are eminently sane, just evil. 

And because criminals are most of them sane and love life, the death penalty is a deterrent.  That is just common sense and there is a strong, albeit defeasible, presumption in favor of common sense views, a presumption that places the burden of proof on those who would deny it.  I will be told that we need empirical studies.  Supposing I grant that, who will undertake them?  Liberal sociologists and criminologists?  Do you think there just might be a good reason to suspect their objectivity?   In any case, here are references to studies which show that CP is a deterrent.

But whether CP is a deterrent is not the logically prior question, which is:  what does justice demand?  Deterrent or not, certain crimes demand the death penalty.  Fiat justitia, ruat caelum.

Farrell, “Tookie,” Hannity and Colmes, and Bad Arguments

My last post ended with a reference to "Tookie" Williams.  Here is a post from the old Powerblogs site dated 29 November 2005:

I just viewed the Stanley "Tookie" Williams segment on Hannity and Colmes. Williams, co-founder of the L.A. Crips gang, and convicted of four brutal murders, faces execution on December 13th in   California.  Here is a description of one of his crimes. 

What struck me was the low level of the debate. Actor Mike Farrell, as part of his defense of Williams, and in opposition to the death  penalty in general, remarked that "we shouldn't lower ourselves to the level of the perpetrators of violent crime." The implied argument, endlessly repeated by death penalty opponents, is something like this: Since killing people is wrong, the state's killing of people is also wrong; so when the state executes people, it lowers itself to the level of the perpetrators of violent crime.

Now this argument is quite worthless. If it were any good, then, since incarcerating people is also wrong, the state's incarceration of people is wrong. And so on for any penalty the state inflicts as
punishment for crime.

The trouble with the argument is that it proves too much.  If the argument were sound, it would show that every type of punishment is impermissible, since every type of punishment involves doing to a person what otherwise would be deemed morally wrong. For example, if I, an ordinary citizen, demand money from you under threat of dire consequences if you fail to pay, then I am committing extortion; but  there are situations in which the state can do this legitimately as when a state agency such as the Internal Revenue Service assesses a fine for late payment of taxes. (Of course, I am assuming the moral  legitimacy of the state, something anarchists deny; but the people who give the sort of argument I am criticizing are typically liberals who believe in a much larger state than I do.)

So the 'argument' Farrell gave is quite worthless. But Hannity let him escape, apparently not discerning the fallacy involved. Farrell and Hannity reminded me of a couple of chess patzers. One guy blunders, and the other fails to exploit it.

But that's not all. Alan Colmes jumped in with the canard that people who are pro-life should also be opposed to the death penalty, as if there is some logical inconsistency in being pro-life (on the abortion issue)  and in favor of capital punishment for some crimes. I refute this silly 'argument' here.

Even more surprising, however, is that Sean Hannity then committed the same mistake in reverse, in effect charging Farrell with being inconsistent for being pro-choice (which he grudgingly admitted to being after some initial prevarication) and anti-capital punishment.

What people need to understand is that the two issues are logically independent. There is nothing inconsistent in Farrell's position. He could argue that the fetus simply lacks the right to life while   "Tookie" and his ilk possess the right to life regardless of what they have done. Nor is there anything inconsistent in Hannity's position. He could argue that the fetus has the right to life while a miscreant like "Tookie" has forfeited his right to life by his commission of heinous crimes.

So the logical level is low out there in the Land of Talk and I repeat my call for logico-philosophical umpires for the shout shows. But I  suspect I am fated to remain a vox clamantis in deserto.

Capital Punishment Again

Philoponus e-mails:
  
On this issue, we are on the same page–I think we should celebrate our agreements! In fact, I probably support a broader use of CP than you do. I think CP a condign punishment for things like aggravated sexual assault on a minor, aggravated assault with torture, etc.
 
I know people who are Amnesty International members. When they start on this stuff about wrongful executions, I stop them and demand a list of the people whom they think wrongfully executed in the U.S. in the last 20 years. Some facts please! They come up with NO credible cases. They talk about a somewhat mentally impaired killer executed in Texas and another in Florida, but these people admitted their killings and juries considered their impairment at trial. It is clear that  in the cases they point to what they disagree with is law which allows CP rather than a flawed trial process. The verdicts were good verdicts. I personally see absolutely no reason to consider lower than normal IQ an excuse or mitigation for egregious crimes.
  
Some people are just opposed to CP whatever the facts and arguments. Fortunately they are minority in most US states. The argument that CP in the US is killing the wrongfully convicted is getting very hard to sustain. 30 years ago when I took my first course in criminalistics, it was a much more persuasive argument, but the advances in the last 30 years have been huge. The scientific evidence that can be extracted from a crime scene is amazing. O. J. Simpson was very lucky!
  
The average U.S. Death Row innate gets 14 years to appeal his sentence. Project Innocence helps prisoners with any sort of reasonable appeal, and appellate courts even in TX, VA and FL are very generous in considering credible appeals. The standard in these courts is really "above and beyond a resonable doubt" if there is any grounds for doubt. No human institution can be perfect. Nothing can guarantee that a wrongfully convicted person won't be executed, but I think this result is VERY unlikely in the US these days. When someone tells me no one deserves to be executed, I feel obliged to treat them to a graphic murder-by-murder tour of the careers of Bundy, Gacy, and Mike Ross. People need to know exactly what these murderers did to women and boys. This inevitably ends the debate–they have no stomach for the facts.
 
Clarity will be served if we distinguish two claims that the CP-opponent could be making:
 
1. Even if there were no actual or possible cases of a wrongfully convicted person being executed, CP would still be an unjust penalty and should be banned.
 
2. Because there is the possibility of wrongful convictions, CP should be banned.
 
Like you, I cannot fathom how any rational and morally percipient person could embrace (1).  But I find (2) less objectionable, though I reject it as well.  I think the conservative must simply accept the possibility of wrongful executions and then argue that this possibility does not by a long shot outweigh the gross injustice of allowing the most vicious murderers to live on in comfort at tax payer expense for years. 
 
But I now want to point out that you seem to be contradicting something implied by what you were maintaining earlier.  Earlier, you denied that there is a difference between being found guilty and being guilty, even when all the procedural rules in a trial have been scrupulously followed.  That implies, however, that there cannot be a wrongful conviction.  But above you speak as if there can be wrongful convictions for capital crimes, adding that this is very unlikely. 
 
If you maintain against the CP-opponents that wrongful convictions are nowadays extremely rare, then by maintaining that you concede that wrongful convictions are possible (and not just in an anemic logical sense) and that therefore the property of being found guilty in a properly conducted trial of such-and-such charge is not identical to the property of being guilty of said charge. 
 
As for the broadened use of CP mentioned in your opening paragraph, consider arson.  A  man deliberately and maliciously sets a forest ablaze.  In the course of combating it, several firefighters lose their lives.  In addition, countless animals are either killed or deprived of habitat.  And there is property damage in the millions.  Doesn't CP at some point become a condign punishment?  I say yes.  What rational objection could one have to that?
 
It is indeed a strange world.  We in the West coddle the most vicious criminals.  In the Islamic lands hands are cut off for theft.  Both sides have lost their collective minds, though they are far, far worse.   They stone to death the woman caught in adultery and we wring our hands over the execution of a scumbag like 'Tookie' Williams.

Three Arguments Against Capital Punishment Rebuilt?

A  reader e-mails:

I wondered whether I could rebuild the three arguments against capital punishment that you claimed to have demolished in your post:

In 1), you say:

If the wrong person has been executed, that person cannot be restored to life. Quite true. It is equally true, however, that if a person has been wrongly imprisoned for ten years, then those years cannot be restored to him. So the cases are exactly parallel.

I want to examine the nature of this idea that in both cases above the punishment cannot be reversed or restored in some sense. Some punishments can be reversed or restored in a reasonable sense: if the state wrongly fines me for a parking infringement, that fine can be refunded to me (plus interest/compensation as appropriate) in the event that I prove there was no parking infringement. The cases above are not like that: in the case of imprisonment, the punishment cannot be reversed because there is no sense in which someone can have ten years of their life restored; in the case of execution, the punishment cannot be reversed because there is no way in which the executed can be restored to life. But here's the crucial difference between these two cases and why you are wrong to say that the cases are 'exactly parallel'. In the case of imprisonment, reversal/restoration is impossible because of the nature of the punishment. In the case of execution, reversal/restoration is impossible in principle (because there is no longer any person and therefore no way in which their punishment can be reversed). Us liberals take issue with this a priori rejection of punishment reversal.

I don't think you are making your point as clearly as you might.  What you want to say is that, in the case of the unjust imprisonment, some compensation is possible whereas in the case of an unjust execution, no compensation is possible.  That is a good point, and I accept it.  The parallel is that in both cases something is taken away from the unjustly punished individual, something that cannot be restored: ten years of freedom in the one case, life itself in the other.  So there is an exact parallel with respect to what was taken from the individual by the punishment.  For in both cases what was taken away cannot be restored.  So if you say that the capital penalty is irreversible, and that that is your reason for opposing capital punishment, then I will say that, by parity of reasoning, imprisonment should also be opposed since it too is irreversible.  And then you have 'proven too much.'

To be found guilty is not to be guilty. So a reasonable justice system must have built into it mechanisms by which miscarriages of justice (which might be established in the light of new evidence, for example) can be compensated. Capital punishment removes such mechanisms which is partly why I reject it.

An interesting argument.  Perhaps it could put as follows:

a. Every just punishment allows for the possibility of rectification in the case of a false conviction.
b. No instance of capital punishment allows for the possibility of rectification in the case of a false conviction.
Ergo
c. No instance of capital punishment is just.

The argument is valid, and we both accept (b).  But this is equally valid:

b. No instance of capital punishment allows for the possibility of rectification in the case of a false conviction.
~c. Some instances of capital punishment are just .
Ergo
~a. Some just punishments do not allow for the possibility of  rectification in the case of a false conviction.

I support (~c) by invoking the principle that the punishment must fit the crime and that therefore some crimes deserve capital punishment.  If this doesn't convince you then I say that that the two arguments just given neutralize each other, in which case we have a stand-off.

Argument 2) I think probably boils down to an impasse. There are clearly punishments which, though they involve the state acting in a way that in other circumstances would be impermissible, society feels are acceptable: imprisonment (which under other circumstances would be kidnap), fines (which under other circumstances would be extortion). But there are other possible punishments which, though (because?) they would involve the state acting in a way that in other circumstances would be impermissible, society feels are unacceptable: the rapist is not raped, the arsonist does not have his house burnt down, the drunk-driver who kills a child does not have his own child killed by state-sanctioned drunk driver. You say capital punishment fits with the first class of punishments. I say the second.

That too is an interesting point.  We don't subscribe to the principle of 'an eye for an eye.'  Thus we don't gouge out the eye of the eye-gouger; we don't sodomize the sodomizer; set afire the bum-igniter, etc.  Your point, I take it, is that if we don't do these things, then we ought not kill the killer. But 'killing' is a generic term that covers a multitude of ways of killing:  one can kill by stabbing, poisoning, drowning, choking, dismembering, burying alive, detonating, etc.  So, while agreeing that we ought not stab the stabber, dismember the dismemberer, etc., it does not follow that we ought not kill the killer if the killing is done in a humane way.

I've heard it said that lethal injection is "cruel and unusual punishment," but that's risible.  Say that, and you've drained the phrase (which occurs in the U. S. Constitution) of all definite meaning.

I'd like to pick up on the deterrence point in argument 3). In order for capital punishment to be an effective deterrent I would argue that would-be criminals must a) fear death and b) be cognizant of the fact that some crimes are capital crimes. I don't mean that they must 'know' that some crimes are capital crimes in some vague, non-immediate sense, like the sense in which I know that three of Wittgenstein's brothers committed suicide – a fact I had not recalled for some time until a moment ago. No, I mean that would-be criminals must be aware of the fact that some crimes are capital crimes in strong sense: a sense in which a fact affects your actions. I would wager that a) is at least contestable: drug lords live under the distinct possiblity of execution, without due process or lethal injection, by rival drug lords but it doesn't seem to affect their actions. And b) is debatable in the sense that some crimes are crimes of passion, crimes committed whilst drunk or high or otherwise in a mentally-altered state ('So we should let them off?!' you say. No, of course not. But capital punishment is unlikely to deter them).

When I said that swift and sure execution  would have a deterrent effect I didn't mean for all. The examples you give are plausible.  How much deterrent effect?  Who knows.  But it would be a substantial one.

I love the blog.

Thank you for reading and for the response!

Three Arguments Against Capital Punishment Demolished

1. One could be called the 'epistemological' argument: it can't be known that one accused of a capital crime is guilty.  The argument sometimes takes this enthymematic form:

P2. Capital punishment is sometimes inflicted on the innocent.
Therefore
C. Capital punishment ought to be banned.

But this argument is invalid without the auxiliary premise:

P1. Any type of punishment that is sometimes inflicted on the innocent ought to be banned.

In the presence of (P1) the conclusion now follows, but  (P1) cannot be accepted. For if we accept it, then every punishment ought to be banned. For every type of punishment  has been at some time meted out to the innocent.  Obviously, to be found guilty is not to be guilty. Our first argument, then, suffers from probative overkill: it proves too much. I reject the argument for that reason, and you ought to too.

If the wrong person has been executed, that person cannot be restored to life.  Quite true. It is equally true, however, that if a person has been wrongly imprisoned for ten years, then those years cannot be restored to him.  So the cases are exactly parallel.  At this point liberals will often say things that imply that their real objection to capital punishment is that it is capital.  Well, yes, of course: it has to be.  For the punishment must fit the crime, and anything less than capital punishment for certain crimes violates the self-evident moral principle that I put in italics.  Justice demands capital punishment in certain cases.  If you don't agree, then I say you are morally obtuse.  On this issue which divides Right and Left either you see that justice demands capital punishment in certain cases or you are morally blind. End of discussion.  To argue with the morally blind is as pointless as arguing with the color-blind and the tone-deaf.

2. Another argument repeatedly given against capital punishment is that it involves doing to a person what in other circumstances would be deemed morally wrong. We could call it the 'consistency argument.'  The argument is that, since killing people is  wrong, then the state's killing of people is also wrong. The trouble with this argument, however, is that it, like the preceding argument, 'proves too much.'  

For if the argument were sound, it would show that every type of  punishment is impermissible, since every type of punishment  involves doing to a person what otherwise would be deemed morally wrong. For example, if I, an ordinary citizen, demand money from you under threat of dire consequences if you fail to pay, then I am committing extortion; but there are situations in which the state can do this legitimately as when a state agency such as the Internal Revenue Service assesses a fine for late payment of taxes.  (Of course, I am assuming the moral legitimacy of the state,     something anarchists deny; but the people who give the sort of argument I am criticizing are typically liberals who believe in a much larger state than I do.)

The state is a coercive entity that limits the liberties of individuals in all sorts of ways.  It has to be coercive to do its job.  If you hold that the state is practically necessary and morally justifiable, then you cannot reasonably balk at the state's killing of certain of its citizens.

If justice demands the execution of certain miscreants — and it does — then this justice must be administered by some agency.  It had better be an agency dispassionate and impartial hedged round by all sorts of rules and safeguards. Otherwise vigilantism.  The job falls to the state.

3. And then there is the 'cost' argument.   The idea is that capial punishment is not cost-effective. It is claimed that the benefit to society does not outweigh the cost. A utilitarian might be able to rig up such an argument, but I am not a utilitarian. The issue is one of justice. Justice demands capital punishment in certain cases, and it doesn't matter what it costs, or whether there is any benefit to society, or even whether there is any society to benefit. (Recall Kant's last man example.)

In any case, there is nothing necessary about high costs. They could easily be reduced. A limit could be set to appeals — and ought to be set to them. Endless appeals make a mockery of justice. And if   malefactors were executed in a timely fashion, the deterrent effect would be considerable. Thus the 'no deterrence' argument is also worthless in my opinion.  Apart from the suicidal, people love life — criminals included.  Swift and sure execution for capital crimes could not fail to have a deterrent effect.

I will add that if it could be shown that in some jurisdiction the capital penalty was not being applied fairly and justly (due to prejudice against people of Middle Eastern descent, let us say), then I would support a moratorium on the penalty in that jurisdiction. But this question is distinct from the question of principle.  That alone is what I have been discussing.

On Being Guilty and Being Found Guilty

Blogging has been good to me.  I have met a number of very interesting and intellectually stimulating characters via the blogosphere.  I had breakfast with four of them last Sunday morning: Peter L., Mike V., Carolyn M. and Seldom Seen Slim.  Topics included logic and existence, the concept of sin, the question why be moral, and the distinction between being guilty and being found guilty in a court of law.

Slim and I found ourselves in that dialectical situation known as a disputation or dispute.  Douglas N. Walton, a noted writer on informal logic, defines the term as follows. "A dispute is a dialogue in which one side affirms a certain proposition and the other side affirms the opposite (negation) of that proposition." (Informal Logic: A Handbook for Critical Argumentation, Cambridge UP, 2007, p. 60.)  I affirmed the proposition that to be found guilty/not guilty in a court of law is not the same as to be guilty/not guilty.  Slim affirmed the negation, namely, that to be found guilty/not guilty  is the same as to be guilty/not guilty.  The distinction strikes me a self-evident; but Slim denied it and I could not budge him from his position. 

While thinking further about the matter yesterday, the following argument occurred to me which strikes me as decisive.

Here are two questions we can ask with respect to burden-of-proof (BOP) considerations as they figure in our legal system.  First, why is a BOP assigned at all?  (One can imagine courtroom proceedings in which no BOP is assigned.) Second, why is it assigned to the prosecutor/plaintiff?  Part of the answer to the first question is because a decision must be made, a question resolved, a dispute adjudicated — and in a timely manner.  If there is no presumption on one side or the other, or, correlatively, no BOP assigned to the other side or the one, then in cases where the evidence is evenly balanced or unclear a decision might be not be achievable in a reasonable time.  But why lay the BOP on the state or the plaintiff or their respective representatives?  At least part of the answer to this second question is that we collectively judge it to be better that a guilty person go free than that an innocent person be wrongly convicted.

Now if Slim grants me this obvious point, then I have all I need to refute his assertion.  To prefer that a guilty man go free than that an innocent man be penalized and in some cases executed  is precisely to presuppose my distinction between being guilty/not guilty  and being found guilty/not guilty in a court of law.  He who denies this distinction removes the main reason for the presumption of innocence, a central pillar of our legal system.

Apparently, Slim thinks there is no objective fact of the matter as to whether or not a person accused of a crime is guilty of it or not.  He seems to think that a guilty verdict or an acquittal is what makes one either guilty or not guilty.  To my mind this is utterly preposterous.  It elides the obvious distinction between a fallible judgment about the way things are and the way things are.

My point goes through even if there is no distinction betweem morality and legality.  Suppose there is no distinction between a morally wrong killing of a human being  and a legally wrong killing of a human being, that the former collapses into the latter.  (Someone who holds this could argue that abortion is legal and so ipso facto moral.)  Even so, either Jones killed Smith in a legally proscribed manner or he did not — regardless of a court's verdict.  There are hard facts about what the law proscribes, and there are hard facts about Jones' behavior in relation to Smith.  Those two sets of fact taken together determine whether he is guilty or not guilty.

There is only one way I can imagine my distinction collapsing.  In the divine court, if such there be, there cannot be any discrepancy between being found guilty and being guilty, nor between being found innocent and being innocent.  The distinction would hold only on the intensional plane; extensionally there would be no possibility of a person beng found guilty/not guilty and being guilty/not guilty.  Here below, however, we are stuck with fallible courts.  And it is a curious form of idolatry to suppose that our fallible courts can do what only the divine court can do.

Peter Berger on Dominique Strauss-Kahn and the ‘Perp Walk’

Peter Berger, in Symbols of Tyranny in America, writes (emphasis added):

The “perp walk”, as far as I know, is a peculiar American institution. The police like to use it especially with high-status defendants, who would be particularly embarrassed by such public exposure. Beyond serving to enhance relations between the police and the press, the practice is also supposed to express democratic egalitarianism—look, we can do this to anybody—corollary: watch out, we could do it to you. The “perp walk” is what the sociologist Harold Garfinkel called a degradation ceremony.  It serves no legitimate purpose whatever. Its only purpose is to humiliate and to show the helplessness of the “perp”. It is an egregious offence against the presumption of innocence. I know of no similar practice in any other democratic country (though it has been common in China). A faint parallel may be the “dock” in British courtrooms, also suggesting that the “prisoner in the dock” is guilty, but it does not have the humiliation and helplessness inflicted on the accused.

Berger's is an excellent and thought-provoking article, but that the 'perp walk' serves no legitimate purpose is arguably false, and for the very reason that Berger himself supplies without endorsing, namely, that it expresses the egalitarianism of a judicial system in which the high and mighty are held to the same standards as the rest of us.  It is very important in a well-functioning society that the people believe that the law applies to all equally, that like cases are treated in a like manner regardless of the perpetrator's social or economic status.  The 'perp walk' lets the people see that even the likes of Strauss-Kahn are subject to the law.  So it does serve a legitimate purpose.

But I have to agree with Berger that it does offend against the presumption of innocence.  You can decide whether this consideration outweighs the other.