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June 27, 2005

Fisking Prager

Dennis Prager is one of my favorite talk show hosts. I've been honored to fill in for him once, on his national program, in September of 2004. It was an unforgettable experience. He's an impeccably gracious and supremely witty man, a peerless intellectual in the world of talk radio, and a genuinely inspirational public speaker.

But he's got at least one thing wrong.

In this article, from some time ago, Prager writes about the death penalty:

A couple of weeks ago, three New Hampshire prisoners, one a convicted murderer, escaped from prison. What if the murderer had murdered again? On whose hands would the victim's blood have been?

One of the most common, and surely the most persuasive, arguments against capital punishment is that the state may execute an innocent person. One reason for its effectiveness is that proponents of capital punishment often do not know how to respond to it.

And unfortunately for the proponents, Prager supplies them with nothing.

Let me iterate here - I can only find one reason to oppose capital punishment. Most of the anti-death-penalty arguments are completely specious.

But there's always the big clinker - the possibiliity (indeed probability) that the state will (and has) executed an innocent person. And that overrides all of the good reasons to execute prisoners. No contest.

That's a shame. For while the argument is emotionally compelling, it is morally and intellectually shallow.

First of all, there is almost no major social good that does not lead to the death of innocent individuals. Over a million innocent people have been killed and maimed in car accidents. Would this argue for the banning of automobiles? To those whose criterion for acceptable social policy is that not one innocent die, it should.

The difference is that driving is a voluntary act with assumed risk. Getting snatched off the street by the police, wrongly convicted and executed is not a reasonable assumed risk for members of a society.
If it were proven that a strictly enforced 40-miles-per-hour speed limit on our nation's highways would save innocent lives, should we reduce highway limits to 40 miles per hour? Should all roller coasters be shut down because some innocents get killed riding on them?

Anyone whose criterion for abolishing capital punishment is saving innocent lives should be for a 40-mile-per-hour speed limit and for abolishing roller coasters.

Prager is mixing policy and mechanics - in other words, mixing an overall, high-level concept with the nitty-gritty of the details of an issue. The policy issue: It's bad to execute innocent people. The mechanical issue; we have to keep murderers who are not sentenced to death actually in their prisons. One is an ideal - and for the credibility of our legal system, it has to be as absolute as possible - that the innocent should not be made to suffer, both on principle and as a matter of fact. The other is a standard of daily implementation; keep prisoners from escaping.

Beyond that, the speed limit and roller coasters involve the normal frictional risk of day to day life; executing the innocent involves using the entire power of the state to pervert the justice system (and abrogate the policy that executing the innocent is an evil we must avoid). There is no comparison.

The abolitionist argument that an innocent might be killed is false for a second reason. Far more innocent people have already died because we did not execute their murderers. The abolitionist has convinced himself, and a sincere but gullible public, that only a policy of capital punishment threatens innocent lives, while abolition of capital punishment threatens no innocent lives. That is entirely untrue.
And entirely absurd of Prager to claim.

I know of nobody who opposes capital punishment who doens't want to make absolutely certain that there is no possibility for the convict to get back into society - ever.

Murderers who are not executed have murdered innocent people -- usually fellow prisoners. And the very real possibility of escape from prison means that murderers threaten far more innocent lives than capital punishment does.
Well, naturally. That is pretty much the definition of murder; someone who doesn't deserve to die, does so. It's a strawman.
So here is the bottom line: If the escaped New Hampshire murderer had murdered someone, would opponents of capital punishment have acknowledged that the blood of that victim was on their hands? I doubt it. They believe that only advocates of capital punishment can have blood on their hands, when and if the state executes an innocent person. But they, the abolitionists, somehow have no blood on their hands when a convicted murderer murders an innocent.
Poppycock. That's true of the abolitionists who advocate no punishment for murderers. Let me know when you find one!
As a proponent of capital punishment, I fully acknowledge my moral responsibility for any innocent person executed by the state.
I'm sure the innocent appreciate that.
It is time that the abolitionists confronted their responsibility for every innocent already murdered and yet to be murdered by murderers who should have been executed. Or at least let them drop this false argument and state the truth: They believe murderers should never be killed.
Buncombe.

I'm a concealed carry activist. I think robbers, rapists and kidnappers should be met by a hail of gunfire from the law-abiding; they should thank their lucky stars that the police have arrived. I think the "innocent" should have teeth; they should be a pack, not a herd. I think that in an ideal world no murderers would go to death row because some brave civilian or cop shot them in the face in self-defense before they could even be arrested.

It's hoping for a bit much, of course. Convicted murderers should die; I don't care how, in prison or by lethal injection, it makes no difference. But since the option of protecting the innocent doesn't itself spring a murderer from prison (incompetent guards might, as in Prager's example - remember, policy versus mechanics), there's a moral imperative to assure the innocent is not in turn murdered by the state.

Keeping a prisoner in maximum security for 40 years costs less than 20 years of death row appeals, and it has the benefit of not killing the innocent. Ever.

Where's the moral problem?

Posted by Mitch at June 27, 2005 06:02 AM | TrackBack
Comments

My view is: If I get killed crossing the Mississippi on a shoddy State-built bridge that collapses, or am mistakenly executed by the State, I'm just as dead. I'd rather give the victim's family the result that most of them would like. Death penalty mistakes are so utterly rare, that I don't think it's much of an issue. God will know what happened. That's what I care about.

Posted by: RBMN at June 27, 2005 09:02 AM

Accidents and deliberate execution are very different things.

And while God will know the truth, that doesn't help the people that the wrongly accused leave behind.

If there were no reasonable alternative, that'd be one thing. But there IS. Life without parole is both absolute and reversible.

Posted by: mitch at June 27, 2005 09:11 AM

Oh, and as to this: " I'd rather give the victim's family the result that most of them would like. "

What? Finding out someday that the wrong person was executed, and so the real killer is walking free?

Posted by: Mitch at June 27, 2005 09:12 AM

> Finding out someday that the wrong person
> was executed, and so the real killer is
> walking free?

That's a group that could hold their national convention inside a Yellow Cab.

Posted by: RBMN at June 27, 2005 09:26 AM

So how many is acceptable?

Posted by: mitch at June 27, 2005 09:32 AM

Mitch, how do you address the very real situation of prisoners being murdered in jail? I suspect their families are just as grief-stricken to have their non-violent brother or husband killed as are those whose family member was gunned down in the street.

By allowing mad-dogs life in prison, we are by default executing others upon whom they prey, others who do not deserve execution.

Posted by: Pious Agnostic at June 27, 2005 10:56 AM

One innocent person executed is too many, when as Mitch says there is the equally effective alternative of life w/o parole. We can't really know how rare the instances of innocents getting executed are, not 'beyond a shadow of a doubt.' Historically it's probably higher than we'd like to admit; currently it's probably low and getting lower. But it's not perfect.
As for the safety of the non-violent offender when locked up with a murderous animal, it's a very valid concern and must be handled better by the system.
Of course one way to do this is to keep the pot dealers out of prison and keep the violent criminals in longer, but that's a different argument, perhaps for a different day.

Posted by: chriss at June 27, 2005 12:48 PM

Nice try, but no cigar. Instead of refuting Prager's argument, you illustrate the dichotomy on which it is based.

You are FOR the State's allowance of lethal self-defense as applied by the law-abiding, but AGAINST the law-abiding's lethal self-defense as applied by the State. These are two halves of the same walnut. In this representative republic, the law-abiding and the State are one and the same.

If it is immoral to kill the attacker after his arrest, trial, conviction, and exhausted appeals, how can it then be moral to kill him WITHOUT his arrest, trial, conviction, and exhaustive appeals?

To be morally opposed to the death penalty as applied by the State, the mere exigencies of your circumstance cannot then be substituted to determine innocense or guilt. You are in effect arguing the death penalty is immoral EXCEPT in your particular circumstance as a law-abiding citizen, irregardless of the State.

All Prager is saying is let's be consistent. If we are prepared to execute the death penalty BEFORE the trial, then we must be prepared to execute the death penalty AFTER the trial. Afterall, what morality is it that argues Timothy McVeigh must die but Charles Manson gets 3 hots and a cot?

Did the victims of the OKC bombing receive justice? Or did Sharon Tate?

Posted by: Eracus at June 27, 2005 01:14 PM

Eracus,

Your argument hinges on one key misstatement: "If it is immoral to kill the attacker after his arrest...".

It is not! By definition, killing *the attacker* is just. But what if you don't kill "the attacker"? By definition, it is nearly impossible to kill in justifiable self-defense by mistake...

...but self-defense is a side issue, a tangent by which I may have clouded my thesis. On point: I think that the death penalty is a moral option, except when the innocent is executed - and that is, in turn, utterly immoral.

I have no problem executing Charles Manson - the facts of his guilt seem pretty inescapable. McVeigh, either - although I think he took a lot of information to the grave we could have used.

But the death-penalty states wind up releasing, on national average, 1-2 people a year from their Death Rows because their innocence was determined - in some cases, decades after their convictions; that's out of the hundreds, maybe a thousand or so (?) on death rows nationwide. It beggars the imagination to think that no execution of the innocent is possible today. If the cases are that imprecise (and there are reasons why death penalty cases are MORE error-prone than non-Death-Penalty ones), it seems only prudent to err on the side of caution.

If our government doesn't protect the innocent, then what good is it?

Posted by: mitch at June 27, 2005 01:34 PM

Re: mitch at June 27, 2005 01:34 PM

> But the death-penalty states wind up releasing, on national average,
> 1-2 people a year from their Death Rows because their innocence was
> determined - in some cases, decades after their convictions


Or, it means that the convict had an unapprehended accomplice who left DNA behind.

In the vast majority of the DNA-based prisoner releases it means that new and significant exculpatory evidence has been found that should have been shared with any jury deciding the case. Barry Scheck's "Innocence Project" finds exculpatory DNA evidence in old cases, and good for him, God bless him, but in most cases it doesn't prove innocence, per say. It proves that the trial wasn't as fair as it could have been with today's technology. That's what it proves.

Posted by: RBMN at June 27, 2005 02:20 PM

Mitch,

As morally repugnant as it sounds, the State sanctions the deaths of innocents all the time in a staggering plethora of venues, from the withholding of life support to the transport of troops to unlimited highway speeds. It is a function of policy of which the death penalty is no exception.

Life has risks. It is not a perfect world. Why the death penalty should be reproved by a higher political standard is unrealistic, and speaks mainly to the avoidance of responsibility based on this or that exceptional circumstance, that while abhorent, is also unpreventable.

We, the people, are the Government. We failed to protect Dru Sjodin. Is our Government therefore no good? Did we err on the side of caution for Dru Sjodin? Or for Alfonso Rodriguez? And while it appeals to our sense of decency to allow 10 guilty men to go free rather than to condemn an innocent man, what sort of society has Government wrought if 10 million guilty are free so that 1 million remain at their mercy?

The guy you shot in your garage might have been there to put out the fire. Should we all now therefore surrender our weapons because one of us has made a mistake? Or should we instead abide by the law as best as we can and accept our responsibility in an imperfect world?

Obviously, I agree with Prager and you and I may agree to disagree. The salient point I am making is that IF you are against the Death Penalty as policy, then you must put away your gun. For it is unprincipled for you to argue I cannot use mine through the agencies of the State, however imperfectly, while you may reserve yours for those circumstances in which you alone may see fit, however imperfectly.

Posted by: Eracus at June 27, 2005 03:15 PM

Eracus, a couple of points:

First, the state has the convict in custody. The attacker is, by definition, in the act of attacking, is not in custody, and poses an immediate threat.

Second, Alfonso Rodriguez was not previously convicted of murder. His being released has little to do with this discussion, unless you think the state should have the power to impose the death penalty on people who were not sentenced to it.

Prager has not given death penalty proponents anything they can use to change minds. Just something that death penalty proponents can use to convince each other that they are right.

I miss the good old days when conservatives and rabble-rousers were easily distinguished.

Posted by: Peter at June 27, 2005 05:40 PM

Mitch,
If the possibility of one innocent person ever losing their life argues against the death penalty, then why use a hail of bullets against the attempted act of murder? One of the bullets might strike an innocent bystander, might it not? How about high-speed chases to apprehend violent offenders? Too risky? I fail to see how justice can ever be served without some degree of risk. Beyond a REASONABLE doubt is our standard, not no doubt at all.
One of Prager's arguments for the death penalty that I really like is his argument for it as a deterrent. He questions whether a law allowing the penalty for murder to alternate (with the death penalty on Monday, life imprisonment on Tuesday, etc.) might not effect the incidence of murder on those different days...Anyone care to wager there would be a higher incidence of murder on the life imprisonment days? I wouldn't.

Posted by: Michael Croy at June 27, 2005 06:56 PM

Mitch,
If the possibility of one innocent person ever losing their life argues against the death penalty, then why use a hail of bullets against the attempted act of murder? One of the bullets might strike an innocent bystander, might it not? How about high-speed chases to apprehend violent offenders? Too risky? I fail to see how justice can ever be served without some degree of risk. Beyond a REASONABLE doubt is our standard, not no doubt at all.
One of Prager's arguments for the death penalty that I really like is his argument for it as a deterrent. He questions whether a law allowing the penalty for murder to alternate (with the death penalty on Monday, life imprisonment on Tuesday, etc.) might not effect the incidence of murder on those different days...Anyone care to wager there would be a higher incidence of murder on the life imprisonment days? I wouldn't.

Posted by: Michael Croy at June 27, 2005 06:56 PM

"If the possibility of one innocent person ever losing their life argues against the death penalty, then why use a hail of bullets against the attempted act of murder? One of the bullets might strike an innocent bystander, might it not?"

If so, there are mechanisms by which a self-defense shooter is held (rigidly) accountable. They work - citizens shoot vastly fewer innocent bystanders per capita than even the police do (not a knock on the police; the rules for legitimate self-defense make it fairly imperative that a citizen shoot the right person under the right circumstances.

There is no such mechanism with the state; if they execute the wrong person...what? What could happen?

"How about high-speed chases to apprehend violent offenders? Too risky? I fail to see how justice can ever be served without some degree of risk."

No, but there are criteria to govern high speed chases to mitigate the risk. It seems reasonable that while there is a reasonable risk of executing the innocent, prudence demands that we not risk it, since there is an easier, cheaper, foolproof means of ensuring the innocent do not die at the hands of the state.

" Beyond a REASONABLE doubt is our standard, not no doubt at all."

And when the lives of the innocent are at stake, and there are reasonable means to assure it, no doubt seems the more reasonable standard.

"One of Prager's arguments for the death penalty that I really like is his argument for it as a deterrent. He questions whether a law allowing the penalty for murder to alternate (with the death penalty on Monday, life imprisonment on Tuesday, etc.) might not effect the incidence of murder on those different days...Anyone care to wager there would be a higher incidence of murder on the life imprisonment days? I wouldn't."

Interesting theory. Who wants to be the first to try it?

Posted by: mitch at June 27, 2005 07:10 PM

Respectfully, Peter, that's just casuistry. I was speaking to the fundamental principle of the State's protection of the innocent, wherein perfection is the standard for the accused but not for rest of us.

It is precisely by that standard that O.J. Simpson is free, that the murders of Nicole Simpson and Ron Goldman remain unsolved, and the State, through its imperfection, has placed the innocent at risk. This is also precisely what happened in the case of Alfonso Rodriguez, who, through the imperfect enforcement of the laws of the State, was apparently able to murder Dru Sjodin.

That "the attacker is, by definition, in the act of attacking, is not in custody, and poses an immediate threat," is a matter of opinion, is entirely subjective, and in no way remotely approaches the standard of perfection afforded the accused today facing the death penalty. It's a double-standard; it's inconsistent.

If the death penalty is justifiable in the act of self-defense by the individual, then it is equally justifiable in the act of self-defense by society. To hold in the one instance a subjective and imperfect standard for the individual, only to hold an objective and unattainable perfection as the standard for the State, results not in the protection of society but in the protection of the accused at the expense of the innocent.

That is absurd.

Posted by: Eracus at June 27, 2005 07:24 PM

Eracus, you keep insisting that we compare apples and oranges. Were I to shoot and kill an attacker in self defense, I would not be carrying out a death penalty. I would also be accountable for my actions. That is, were I to shoot and kill a fleeing person, I would probably be arrested for murder, and my subjective judgment of the situation would be scrutinized by an objective (we hope) legal system.

Your first paragraph, in which you suggest that it is the state's job to protect the innocent, leads me to conclude that you would favor a nanny state that limited personal liberty in order to limit accidents and crime. Is this really your stance?

This idea that the accused have all sorts of rights that are denied the rest of us is absurd. All of us have certain rights that come into play should we be accused of a crime. Would you have it another way?

The fact that some juries have decided in ways that seem wrong to us does not mean that the principles behind trial by jury need to be tossed out. But perhaps that is your position. That's about the only way the OJ trial fits in to a debate about the death penalty.

So, Eracus, what is your idea of the role of government? Does the government exist to protect the innocent? If so, should it aim for perfection? If so, at what cost? If perfection is your aim, and jury trials are imperfect, what do you suggest as an alternative?

Posted by: Peter at June 28, 2005 11:27 AM

Eracus, you keep insisting that we compare apples and oranges. Were I to shoot and kill an attacker in self defense, I would not be carrying out a death penalty. I would also be accountable for my actions. That is, were I to shoot and kill a fleeing person, I would probably be arrested for murder, and my subjective judgment of the situation would be scrutinized by an objective (we hope) legal system.

Your first paragraph, in which you suggest that it is the state's job to protect the innocent, leads me to conclude that you would favor a nanny state that limited personal liberty in order to limit accidents and crime. Is this really your stance?

This idea that the accused have all sorts of rights that are denied the rest of us is absurd. All of us have certain rights that come into play should we be accused of a crime. Would you have it another way?

The fact that some juries have decided in ways that seem wrong to us does not mean that the principles behind trial by jury need to be tossed out. But perhaps that is your position. That's about the only way the OJ trial fits in to a debate about the death penalty.

So, Eracus, what is your idea of the role of government? Does the government exist to protect the innocent? If so, should it aim for perfection? If so, at what cost? If perfection is your aim, and jury trials are imperfect, what do you suggest as an alternative?

Posted by: Peter at June 28, 2005 11:56 AM

"Were I to shoot and kill an attacker in self defense, I would not be carrying out a death penalty."
---------
Really? The attacker is dead, is he not? That's quite a penalty. And in that instant decision of "self-defense," you represented the prosecutor, the defense, the judge, and the jury --and decided the penalty was death. YOU say it was "self-defense." Well, now. Maybe. Maybe not. We'll never know, will we? Legally speaking, the victim had rights.
--------
"Your first paragraph, in which you suggest that it is the state's job to protect the innocent, leads me to conclude that you would favor a nanny state that limited personal liberty in order to limit accidents and crime. Is this really your stance?"

Not at all. The Bill of Rights was written to protect the innocent, hence the 2nd Amendment. My position is given that our right to self-defense is assured and by definition our exercise of that right will always be imperfect, then --morally-- we should be prepared to accept the death penalty however imperfectly applied when exercised by the State. It's not apples and oranges; the moral responsibility is the same.
--------
"This idea that the accused have all sorts of rights that are denied the rest of us is absurd. All of us have certain rights that come into play should we be accused of a crime. Would you have it another way?"

Check your premises. The victim had rights. Those rights were denied. The suspect may claim he acted in "self-defense," which may or may not be absurd, but it is his right and his rights must be fully protected. After he has exhausted the means of defending his rights, and he is nonetheless convicted, then the State's right to act in "self-defense" of the society he attacked is morally justified.
--------
"The fact that some juries have decided in ways that seem wrong to us does not mean that the principles behind trial by jury need to be tossed out. But perhaps that is your position. That's about the only way the OJ trial fits in to a debate about the death penalty."

The OJ trial is a glaring example of the State's imperfection. My position is if you are morally willing to accept the imperfection of trial by jury, then it is contradictory to argue the State's imposing of sentence is immoral because it is imperfect.
-------
"So, Eracus, what is your idea of the role of government? Does the government exist to protect the innocent? If so, should it aim for perfection? If so, at what cost? If perfection is your aim, and jury trials are imperfect, what do you suggest as an alternative?"

It is fundamental that the role of government is to protect the innocent, for what other reason would it exist? The alternative is tyranny.

The issue here, as I understand it, is the suggestion that the death penalty is immoral because it is imperfectly derived and imperfectly applied. I disagree because the implication is that perfection, which is unattainable, then becomes the only standard by which the State may execute the death penalty. By that standard, we should only pass laws and elect representatives that receive 100% of the vote. Otherwise, all standards would become arbitrary, which is to say there would be no standards at all.

That the State should protect the innocent by upholding the individual right to self-defense with all its imperfections, but then to deny the collective right to self-defense by setting the unattainable standard at perfection, is itself immoral.

The point is that if you are prepared to make the moral argument that to shoot to kill is justified in your garage, then it is morally imperative to argue shoot to kill is justified after trial and conviction.

I am making that argument.

Posted by: Eracus at June 29, 2005 08:06 AM

Eracus, while I disagree, I appreciate your willingness to answer my questions.

Posted by: Peter at June 30, 2005 12:02 AM

Eracus, while I disagree, I appreciate your willingness to answer my questions.

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