Crime and Punishment, Points to Ponder.


The guys over at Vox are arguing about the death penalty again.  As usual, everyone is wrong but me.  I’ve explained this before, but perhaps I need to explain it again.  Here are the highlights:

1.  Vox fears that a government that has the authority to kill its citizens will do so for bad reasons.  Sorry, dude.  That train has left the station.  When the government and those in political power refuse to accept any barrier on the exercise of their authority, it hardly matters if they have statutory authority to kill citizens or not.  If they can kill you with a drone strike because your name is on a list, or because you are sitting next to a guy whose name is on a list, it’s all the same.  If they can decide that they have the authority to shoot down a high jacked civilian jet liner full of passengers, killing everyone on board and the only due process they get is the circuit logic of the AMRAAM missile, then the last thing you need to worry about is the lawful exercise of the death penalty in the courts.

2.  The death penalty is not a deterrent. In general, all criminals believe they will get away with their crimes so they don’t fear jail or death penalties.  The purpose of prison is not punishment or rehabilitation.  It is to separate the criminal from society so that society doesn’t have to suffer additional crimes and the costs associated with those crimes.  The purpose of the death penalty is to permanently separate someone from the rest of the peaceful population so that peaceful population can continue living in peace. 

3.  Life in prison does not permanently separate violent people from society.  Those people continue to behave violently against other prisoners.  Those other prisoners are incapable of escaping their tormentors and cannot depend on the state to protect them.  The state has a moral obligation to protect them from other violent people. 

4.  The employees of the prison are also endangered by the continued existence of people who are too violent to be allowed to live.   While those employees have a choice to be there, logically, SOMEONE has to have that job or the state cannot operate a prison.  To the extent that the prison system needs employees, the state (employer) has a legal and moral obligation to protect its enployees from predictable harms in the workplace.  Getting shanked by a lifer is a predictable harm.

5.  If a criminally violent killer is released from prison some day, there is a larger than zero chance that that person will kill someone else.  That person had a right to self-preservation.  The state had a legal and moral obligation to defend that right.  I suspect that the number of such innocent people killed by released killers is far higher than the number of innocent people executed by the state.  Pick your evils carefully.  This should be a simple choice.

6.  The Innocence Project is a scam.  They do not “Prove Innocence” by using DNA.  Their “new evidence” doesn’t get seen by a jury, doesn’t get cross examined, and it doesn’t erase the previous jury trials and appeals.  DNA by itself cannot convict or exonerate.  It is just a piece of evidence that in the larger context convinces a jury.  

7.  There is no guarantee in the legal system to prevent a witness from giving false testimony, either knowingly or in error. 

8.  The absurdly long appeals processes afforded to convicted criminals are not a built-in design of the system.  They are choices.  Choose differently.  John Alan Mohammed (DC sniper), put to death in only 7 years.  Same for Timothy McVeigh.  In cases where guilt is obvious, there is not reason why this can’t be even sooner.  The only cases that merit extensive appeals are when the criminal was not caught at the scene and there is a possibility of mistaken prosecution. 

9.  The choice to kill a violent offender or preserve him indefinitely is not a cost-based decision.  The part of the equation that is never considered is the potential damage that is avoided when he is put to death and never gets the chance to harm someone else.  Nor do his friends on the outside get to intimidate or kill witnesses in his name.  nor do future terrorists get to take hostages to trade for him.  Nor can a future judge or governor buckle to political pressure and release him back into the community.

10.  It is an undeniable fact that the system isn’t perfect.  Thousands of innocent people are going to die every year.  A tiny fraction of them will be by the state, using due process and depending on flawed juries of stupid people because all the “smart” people can’t be bothered to be on a jury.   But on the balance, I claim (unprovably) that fewer innocent people will die if violent criminals are put to death by the state as soon as possible (under 5 years), than if there is no death penalty.  If you REALLY want to ensure an innocent man doesn’t get executed, serve on his jury.

11.  It is every bit as much of an injustice that an innocent man would be locked away for his entire life in the company of other violent offenders as it would be to execute him the day after he is found guilty.  You can make the claim the swift punishment would be a mercy.

12.  There is no defense against a corrupt government taking upon itself the power of life and death over its citizens and using that power without limits on even the most innocent.  To deny the benefits of capital punishment to society based on that fear which cannot be mitigated or prevented, is not logical.

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About Professor Hale

Currently living in Virginia
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8 Responses to Crime and Punishment, Points to Ponder.

  1. Tarl says:

    1. The death penalty is much less of a concern than drone strikes or shooting down airliners, because the government is under much less time pressure when it implements the death penalty. If they start implementing the death penalty within days or weeks of the conviction (which in fact, they used to do) then I’ll worry about this.

    2. It is a deterrent. [no it isn't. The fact that capital crimes are still being committed proves that it is not a deterrent. In fact, capital crimes are even being committed in prison] If the only purpose was separation, then life without parole would be good enough.[ Again, As long as they are alive, someone might parole them, or they might escape, or the Innocent project might get them released or they might continue to kill other people in prison. ] (Except the bedwetters are coming after LWOP as well as the death penalty. They are pretty much against ALL forms of punishment.)

    3. Prisoners tormenting other prisoners, meh. [ A prisoner sent to prison for a few years to pay for a nonviolent crime is paying his penalty by being separated from his family and losing the freedom to persue his normal life. The increased chance of being ass-raped or killed while in prison is not part of his penalty. If it were then those aspects would also be controled by the state to ensure everyone has their fair share of ass-raping/ being murdered. All prisoners are in the custody of the state. The state becomes responsible for their safety.]

    4. You mean like the California prison guards who make six figures? Cry me a river. [What they get paid is a separate issue. No matter what they get paid or what state they live in, if you intend to have a prison system to lock up anyone, for any length of time, with or without a death penalty, you have to have employees. The employer is responsible for protecting the employee from known workplace hazards. Hanible Lechtor is a known work place hazard. Putting him to death saves the lives of several guards who will be killed when he escapes.]
    5. Agree!

    6. Agree!

    7. Agree!

    8. Agree!

    7. (should be 9) Agree!

    8. (should be 10) Agree!

    9. (should be 11) Agree, and again, liberals are attacking LWOP as “unjust” as well.

    10. (should be 12) Agree!

  2. Φ says:

    Wait a sec . . . the coexistence of murder and the death penalty demonstrates that SOME murders are not deterred by the death penalty. It doesn’t demonstrate that NO murders are so deterred. But it’s harder to measure the murders that don’t happen.

  3. Re: Innocence Project. I mostly see the effect of these guys’ work when it comes to rape convictions. Yes it is but one piece of evidence among many, but if the semen doesn’t fit, it seems one must post-hoc acquit. The reluctance to re-open cases given exculpatory evidence is remarkable, albeit understandable (embarassing to the State, prosecutor, police, etc).

    “If you REALLY want to ensure an innocent man doesn’t get executed, serve on his jury.”

    Dead on, no pun intended. Many gripe about how juries are only manned by those not smart enough to dodge the summons, yet they scheme to avoid service themselves. However, they (the gripers) do have a point, in that jurors are routinely thrown off for expressing FIJA sympathies, or for being law-and-order types.

    “A tiny fraction of them will be by the state, using due process and depending on flawed juries of stupid people”

    I have bed-wetter tendencies when it comes to the death penalty, because I have a hard time with what you describe above. The statistical surety that some innocents are slain because of an imperfect system operated by imperfect people makes me quite uncomfortable. I am further uncomfortable with the utilitarian argument you present (far far far fewer killed by the State than by private citizen-criminals, etc), when the moral case (death for an innocent) is glossed over.

    Granted, ‘uncomfortability’ isn’t a logic-based argument, but since when is a conscience logical?

  4. Yes. Very hard to measure events that were avoided. I have also heard the arguments that just having a death penalty guarantees that some jurors will aquit an obviously guilty man so that they don’t have his blood on their conscience. The additional blood the guilty man then goes on to shed isn’t their problem. I know of several people who I think logically NEED to be ended. What restrains me? Is it the probability of getting caught? Or the added probability of going to jail for the rest of my life? Or the marginal additional possible penalty of being killed by the state? Maybe what restrains me is the idea that i think morally that murder is wrong. Criminals commit crimes because they believe they can get away with it, and thus avoid the penalties. So the size and severity of the penalties do not deter the criminal any more than having any large penalty. Death is not marginally a worse penalty than life in prison (dying in prison by natural causes). The human mind does not calculate its end that distinctly and make judgements based on that distinction.

    Example: When california enacted its three strikes law, the rate of first and second offenders did not in any way decrease. The number of third offenders fell off steeply. That looks like crime deterred. But in reality, neighboring states took a sharp increase in offenderes who had two previous convictions from california. They didn’t stop committing crimes, they just stopped doing them in California.

  5. A conscience that is not logical is based then on what? Fear? Love? Arbitrary random action? Even the first two have a logic of sorts.

    If we as a society are to have any sort of system for punishing criminal behavior then your conscience must accept that some inocent people will be accused unjustly by that system. Form it as best as you can to minimize those events but you are unlikely to prevent them. An unjust jail term of any length is still unjust and your conscience live with it. An unjust life without parole is every bit as unjust as death, maybe more sine with the death penalty the convict will get extra scrutiny in his case. But once he is LWOP, he is left to rot. Further, on death row, there is normally isolation which may indeed prolong his life. For some people, just being sent to prison is a death sentence.

  6. Tarl says:

    The fact that capital crimes are still being committed proves that it is not a deterrent.

    Do you really work for the Pentagon with this view of deterrence? The only people who insist that deterrents are worthless and don’t work unless they are 100% effective 100% of the time are Leftists who hate the military.

    [go back and read what I wrote again. Then think about it. I am not saying that imperfect deterence is pointless. I am saying that the marginal additional benefit of a death penalty as a deterrence is miniscule. Yes, I work in the Pentagon and yes I do know a lot about this. There is a deterrent value to the threat of war and an additional deterrent value to the use of nukes to anihilate your enemy. There is zero added deterrent value to proclaiming you intend to also use your 8" howitzers instead of just 155mm. There is zero added deterrent value on the margin for the possibility of death 10-15 years from now, more than what I can otherwise expect in that same period. ]

    What Phi said. And anyway, yes the death penalty does deter.

    http://www.heritage.org/research/testimony/the-death-penalty-deters-crime-and-saves-lives
    [Read it. You need to read it again. It suggests a correlation, NOT a causation. To prove your point you need to find someone who was committed to comiting a capital crime with full knowledge that if he was caught he would face life in prison but then turned away because he might get executed. ]

    What they get paid is a separate issue.

    Not really. They are more than adequately compensated for the risks they run. [That's not the point. Stay on target. Don't get distracted by your hatred of overpaid public employees. There are dangerouos jobs. Someone has to do them. But courts in America universally support the rule that an employer has an obligation to mitigate known harms. An employer cannot get out of providing safety glasses and hard hats by just paying everyone $3 more per week.]

    The statistical surety that some innocents are slain because of an imperfect system operated by imperfect people makes me quite uncomfortable.

    I am also uncomfortable that innocents are slain because manifestly guilty people are found not guilty for various reasons. [I agree]

    Criminals commit crimes because they believe they can get away with it, and thus avoid the penalties. So the size and severity of the penalties do not deter the criminal any more than having any large penalty.

    Again the problem is that people who were not deterred are very easy to count, whereas the number of people who were deterred is not easy to count. [Doubly hard to find those who were deterred by the threat of a gentle death administered at some future point at least ten years away but not deterred by the possibility of being beaten to death or shot to death during the crime by his victim or ass-raped to death for ten years in prison. I cannot imagine any credible way to test for this.]

    If we deter only the more intelligent and forward-thinking potential criminals, and only the more stupid and easily caught criminals commit offenses, that is all to the good.

    Death is not marginally a worse penalty than life in prison (dying in prison by natural causes).

    This is obviously not true because people on death row always seek to protract the appeals process for as long as possible. In effect, they are choosing life in prison over death, and thus death must be a worse penalty. [No. They are appealing because it costs them NOTHING and might work. It is a gamble with other people's money that might pay off. If they had to have a finger taken off with bolt cutters for every appeal they filed, including civil rights complaints about the quality of their food, i suspect they would all go to their deaths with ten intact fingers.]

  7. Also, they appeal because lawyers will get paid by your tax dollars. That is a rice bowl for such lawyers. They will do endless appeals whether the convict wants them or not. If the convict says “no” they will declare him incompetent and appeal anyway.

  8. heresolong says:

    hahahaha! Love the “fingers” comment. Thanks for today’s laugh.

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