Number Six

With the tragic resolution of the Wetterling case, we’re starting to see the inevitable flurry of calls for the return of the death penalty to Minnesota; it’s the same flurry we see after every grisly, heart-wrenching crime.

I’ve said it before; I support the death penalty for every reason but one.  And it is, unfortunately, an absolutely dispositive reason.

We’ll come back to that.

Walter Hudson, in PJM, attempts to debunk the five most common conservative objections to the death penalty.  I’ll list ’em; you can read ’em yourself:

  1. Government can’t be trusted
  2. Death is not an adequate punishment
  3. It’s cheaper to keep them alive
  4. Death is not a deterrent
  5. Life is precious.

And he does a good job with those five arguments.

But he – like Dennis Prager before him  – misses a sixth argument; the inevitability of executing innocent people.

Executing someone who was innocent of the crime for which they were condemned is the ultimate moral crime, presuming it’s avoidable.  And it is 100% avoidable; life in Supermax (from which nobody has ever escaped) is both absolute and, when an error is inevitably discovered, reversible.

Of course there are cases like Heinrich and Dahmer that are easy slam dunks. It’s the difficult cases, with circumstantial evidence and lots of moving parts, that make it difficult. Ignore them at your peril.

Now, to be fair Walter obliquely alludes to this in his first point about government incompetence:

Why have government at all? If they can’t get anything right, why trust them with any of it? This is silly. If people are being wrongly convicted, let’s stop that! We don’t fix that problem by nerfing sentences.

Walter states this as an “if”.  It’s not.

And it’s not just about government incompetence; there’s human nature, and even the foibles of “settled science”  as well.  For example, it‘s a dead lock that Cameron Todd Willingham was executed wrongly for the arson murder of his two kids – not because government was incompetent, but because it very competently prosecuted Willingham based on science that turned out to be completely erroneous.   Everyone knew that Arson science was “settled” when Willingham was convicted “beyond a reasonable doubt”.  Today, everyone knows that the old science was complete twaddle.

Now – go through the records of people who were convicted based on “hair strand analysis”, which was considered as solid as DNA in the sixties through the eighties, and is regarded as little better than phrenology these days.

Think about it.

Given the emotional, financal, political and legal realities of death penalty cases – they’re extremely emotionally charged, evidence is frequently circumstantial, the political benefits of executing people are large, the public defender budgets are small – it is inevitable that corners will be cut.

Next, Walter commits what I consider “taking a moral shortcut” – the old “wouldn’t you rather be  dead than in jail if you’re innocent?” question, which you’ll note is only asked by people who aren’t facing the business end of a needle, rightly or wrongly:

How is it better for someone to be falsely convicted to a life sentence than to be falsely convicted to a death sentence?Either way, it’s a false conviction. Are we to regard the world as a better place because an innocent person might spend his life in prison rather than be executed? Is that really the standard?

Yes.  It is standard, and a very good one.  The world is a better place, because an innocent person who might have been dead is still alive, still protesting his or her innocence, still has a chance to right the wrong against them – and all of us.

How about we focus on minimizing mistakes? How about we focus on making sound convictions?

Sure – let’s!

Except “mistakes”, incompetence, hubris, corruption, bad science, and just plain human error – are always with us.  Thinking we can just think them out of existence is magical thinking.  Appeals to magical thinking are appealing responses to ethical conundrums – like saying “how about we make cars perfectly safe before we build more roads”.  But innocent people have been, and inescapably still are, on death row today – because of bogus evidence (do you have any idea how many death sentences are based on evidence from jailhouse snitches looking for better deals?), or crummy defense, or unscrupulous prosecutors, or even good prosecutions in good faith based on evidence derived from science that turns out wrong, as in Willingham’s case.

So sure – let’s focus on making sound convictions.   But let’s not pretend that that’s an answer to mistaken executions, or that it’s a question that can be answered.

That seems like a much better plan than settling for a world where innocent people spend their remaining years in hell, and guilty people don’t get what they deserve.

Over 150 people have been released from death row in the past 43 years. Not given new trials – released from Death Row to the streets because they didn’t commit the crimes for which they were condemned.

I’ve heard of none of them bemoaning the fact that they’re alive rather than dead.

There are dozens of flimsy arguments against the death penalty, and many good arguments for it…

…and one argument against it.  And that argument is all it takes.

17 thoughts on “Number Six

  1. Mitch, I’ve always been with you on this for exactly the reasons you point out. I’d be all for exacting the ultimate punishment if not for the opportunity that a mistake could happen. I believe at the end of days the truly guilty will face their Maker and will suffer the consequences for their acts accordingly.

  2. Given the mountains of instances where the coppers, or the DA, or the Judge or all three have manipulated trials by withholding or manufacturing false evidence, Christians had a better chance for fair treatment in the Colosseum than an accused person without the wherewithal to pay a lawyer at least $300 an hour for a year.

    Execution is state sponsored murder.

    Besides, wouldn’t you rather a murderer spend the rest of his days fighting for his life in the Colosseum of prison, and his nights locked in a cage?

  3. All you need to do is look at the scientific method and “evidence” behind forensic “science” to realize that calling it “science” is bovine excrement.

    Besides, the government doesn’t even bother to play by the rules and Brady violations are common because they’re unpunished.

    Sorry, I don’t believe in the death penalty as imposed by the state no matter how much my desire for vengeance would demand it. That doesn’t mean that if I were in the Wetterlings’ shoes that Reinhard should feel comfortable walking down the street — on a personal level I would be willing to pay the consequences in a case like this. And were that unthinkable thing to happen and I selected for the jury, the worst crime for which I would be willing to convict Patty would be littering for leaving blood stains on the sidewalk.

  4. I’d be willing to wipe up the blood stains and let her walk for that, too, to be honest. Might bill her if a stray round chipped the sidewalk…but that said, except for the effective death penalty (the “Dahmer effect”?) in the jails, there was no way the perp was going to face Old Sparky. Not enough evidence, he confessed, etc..

    To the point, though, the counter-argument to #6 is the rebuttal to #4, including the “Dahmer effect”: if there is indeed a deterrent effect to executions (there is at least no recidivism), both options guarantee innocent victims. The question really is what weight you want to place on the government being the hangman, really. I’m reluctant to assign infinite weight to one side of the equation.

    And really, what we have here is a powerful argument to get evidence right, and start a culture of running rogue police and prosecutors out on a rail. That will take some doing, though, as they seem to be pretty common.

  5. I just keep thinking about the people convicted because some bright people at BATF got some new toys to play with that allowed them to measure with extreme precision the specific composition of an alloy.

    They immediately jumped to the conclusion that they could use this to match bullets recovered at a crime scene to the specific manufacturing lot of ammunition it came from.

    And they proceeded to testify at trial that Joe Somebody had purchased a box of ammo from the same lot that the bullet they found in a body had come from.

    Until someone actually did the science, and discovered that the precise proportions of an alloy varied throughout an ingot, that any given lot of ammo would display a significant range of mixtures, and that any given bullet could come from dozens or hundreds of different lots.

    http://www.phschool.com/science/science_news/articles/forensics_on_trial.html

  6. In a word Lingchi!

    Some people would just make it their mission to always know two things 1) what prison the miscreant was currently in and 2) the name of a “Lifer” in that same prison whose family on the outside needed some monthly financial support with the proviso that the support continues as long as the miscreant loses a piece of himself every month.

  7. For all that I’ve criticized you pretty relentlessly, let me compliment you on this post.

    Well sourced, well reasoned, well done.

    I agree with your conclusions, but I would applaud this kind of writing from you even if I did not agree.

    One point Walter Hudson missed is Minnesota does not need the death penalty, so long as the federal penalty serves as leverage in a plea deal like this. It is the only useful purpose I see in having a death penalty.

    I would also disagree about killing the killer, no matter how monstrous; Justice is not the same as vengeance, which is why it is also wrong, however tempting, to engage in torture.

    Off topic, but I think this would interest you — and perhaps surprise you that I see some validity in the arguments of the majority —

    http://www.thelegalintelligencer.com/id=1202766943369/3rd-Circuit-Splits-Over-ExCriminals-2nd-Amendment-Rights?cn=20160908&pt=PM%20Legal%20Alert&src=EMC-Email&et=editorial&bu=The%20Legal%20Intelligencer&slreturn=20160808150636

  8. The death penalty should only be used in cases where guilt is clear cut, and in the age of video survellience everywhere, that will become easier to prove.

    And even if it is rarely or never used, it should still be an option on the table to give prosecutors leverage. Think about it- how many criminals have confessed to a murder or other crime as part of a deal to avoid the death penalty?

  9. I think you need to look at this from the other end, Mitch. Under your scenario, even when guilt was not in doubt, you cannot execute the perpetrator. You are avoiding the issue of whether people can commit a crime so awful that death is the appropriate punishment by insisting that guilt can never be certain.
    If we fetishize innocence, how do we approve military operations that we know have a high likelihood of killing innocents?

  10. Tom, I’ve known more than I care to about the rather cavalier attitude of the government towards justice for a long time. I’ve got friends who are defense attorneys and public defenders, and relatives in law enforcement and incarceration. I’d say that if anything, Judge Kozinski isn’t harsh enough in his condemnation. I think we’ll all agree that we probably don’t have a real justice system these days, at best we have a system of law and order. And even then, Hillary shows that calling our system law and order is stretching it.

    At one time we prided ourselves on Blackstone’s “It is better that ten guilty persons escape than that one innocent suffer.” These days the formulation is “It is better that ten innocent persons of insufficient means suffer than that one guilty escape.” And what can you call civil forfeiture without conviction other than government sanctioned theft?

    (You’ll note that Trump isn’t running on justice, he’s running on law and order because law and order is far easier to deliver than justice.)

  11. Bento, I’m hopeful that it can be sorted out the difference between crimes committed against person(s) vs. the loss of “innocents” in the prosecution of a war.

  12. Don’t do it dog…we’ll just laugh at you more and you still won’t know why. You’re out of your league….way out.

  13. Prior to the McVeigh execution, I was staunchly pro-death-penalty. Then I saw the news interviewing a woman, presumably a relative of a victim of the bombing, whom had witnessed McVeigh’s execution. She described seeing the needle go into his arm and recounted how she said something along the lines of “That’s right, you son of b—-!” There was hatred in her eyes as she said it. After that, I came to view the death penalty as I do now: State-sanctioned and state-sponsored revenge, coupled often with the volatile, high emotions of a outraged populace. You can see this blood-lust, if you will, when the news carried footage of New Yorkers dancing and cheering upon the news of bin Laden’s death. Rewind roughly ten years before that to the news footage of Palestinians dancing and cheering upon news of the 9/11 attacks, and we’re compelled to ask: Aren’t we better than that? How so?

  14. Yeah, that’s another thing, Ian.

    Having the state do your dirty work for you doesn’t sit well with me. If you really want someone do die for something (s)he did to you, you should have to do it yourself.

    If I was a gun carrier, I wouldn’t hesitate to shoot someone that was putting me or my family’s life in danger…not for a microsecond. But once that person gets disarmed and put into custody, the opportunity for revenge killing is gone.

  15. Wait a second here. Just because some of our neighbors rejoice at punishment doesn’t mean the punishment is wrong. It means our neighbors are rejoicing at that punishment. They may have a moral problem, but the punishment does not necessarily have one. Separate issues, folks; let’s use our heads here.

    Plus, if we can’t see the difference between rejoicing at the death of innocents, as happened in PLO territories, and rejoicing at the punishment/death of the guilty, we’ve got every bit as big a moral problem as we accuse the woman who rejoiced at the needle going into Timothy McVeigh.

    And for that matter, I’ll fess up to rejoicing when certain criminals get theirs. I was only bummed at the death of Osama bin Laden, for example, because nobody got to waterboard him first so other thugs could assume room temperature. Who could have been bummed when Hitler had his lead breakfast, or Mussolini his hempen necktie? Really, when a man devotes himself to the murder of innocents, my basic feeling when he goes is “don’t let the door hit you on the a** on your way into Hell”. Give a person the chance to repent and perhaps make peace with God on the way out, make sure he gets a fair trial, but when he’s guilty beyond a reasonable doubt of heinous crimes, he’s given up his right to live.

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