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Too Much?

Richard Cohen argues against the death penalty, stating that "the power to take life is too awesome to be given to government." Well, perhaps. But is the power to lock someone away in prison forever really a substantially lesser one? Or even to lock them away for thirty years? And yet, someone's got to have the power to punish criminals, and really, really bad criminals are going to have to be punished pretty harshly. The power to mete out harsh penalties is, needless to say, an awesome one and anyone's who's been to the DMV will naturally have some doubts about the wisdom of entrusting such awesome power to the state. But the state can make war, and therein regularly holds life and death in the balance. For what choice is there but to give the state that power? Someone's got to do it. And someone needs to mete out harsh penalties. The government is the obvious choice.

Which is but a lengthy throat-clearing way of saying that I think a lot of discussion of the death penalty occurs weirdly out of context. Executions are inhumane. But inhumane as opposed to what? Executing people is putting an awful lot of power in the government's hands, but an awful lot of power as opposed to what? Capital defendants often suffer from egregiously bad legal representation and the prosecutorial apparatus is all-too-often unscrupulous. But their legal representation is poor compared to whose? There's a lot to worry about regarding how the death penalty is administered, but it's entirely of a piece with general worries we should be having with the criminal justice system.

May 17, 2005 | Permalink


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I am opposed to the death penalty, mostly because I think it is poorly implemented and is not a deterrent, in general. It is not an issue that concerns me too much, except in that I find the state of mind that brings us the death penalty, in general, to be a truly negative influence on our policies in general.
This is not an issue that is decided on the merits, it is used to signal "tough on crime" messages or cultural unity, and it does so in a corrosive way.

Posted by: theCoach | May 17, 2005 2:23:33 PM

An excellent point. My only caveat is the irrevocability of the death penalty, but, as a result of things like the innocence project, I feel like the death penalty might result in *better* jurisprudance, simply because of the greater scrutiny.

Posted by: Glenn Bridgman | May 17, 2005 2:25:34 PM

The death penalty won't result in "better" jurisprudence when those receiving it are viewed as subhuman by those dispensing it, or those who have the final review. Yes, I'm talking about George W Bush.

Posted by: beemer | May 17, 2005 2:30:38 PM

Death, as opposed to other penalties imposed upon convicts in this country, is irreversible. Sure, you can't give someone back thirty years of his life, but you can restore his liberty. Given that there will be mistakes and imperfections in the operation of justice, it's wise to avoid mistakes that cannot possibly be mitigated or corrected.

Posted by: pickabone | May 17, 2005 2:32:19 PM

What pickabone said. The salient difference between death and life in prison for our purposes is degree of irreversibility.

Posted by: djw | May 17, 2005 2:46:44 PM

But is the power to lock someone away in prison forever really a substantially lesser one?

Yes, as pointed out, because it is reversible. Well, partially reversible, because can't give back lost years. But death is definitely irreversible.

Executions are inhumane.

Not necessarily. It depends on what you mean by "humane" but in most forms of execution will cause less actual pain than a life sentence. Granted, the survival instinct is such that most people given the choice would accept life behind bars.

My view is the diametric opposite of MY's. Execution is arguably more humane, but it's unjust because it will inevitably result in the death of some innocent people, and there will be no way to reverse the error.

Posted by: PaulC | May 17, 2005 2:48:49 PM

I can't recall where I saw the info but seem to remember that one of the arguments against the death penalty was that statistics indicated an increased murder rate where is was implemented. Go figure.

Posted by: opit | May 17, 2005 2:49:09 PM

I don't mind the death penalty as much as I mind people who proclaim it from their high horse. It's prohibition is a cultural landmark along the high road. I prefer the high road to the high horse. I can be just as snooty without the hypocrisy.

Now there's some real monsters out there with whom I would prefer not to share this living world. Their sins make the best argument for. But know this: as long as there is the death penalty there is going to be innocent people put to death. It is for their sake we should spare the monsters.

Posted by: LowLife | May 17, 2005 2:50:16 PM

The death penalty could be extremely useful, if only it were applied correctly. The threat of the death penalty doesn't deter a foul-tempered drunk who's been insulted at 3:00 in the morning. Other crimes against humanity, however, certain offences that are not crimes of passion, could easily be deterred. For example, if anyone caught using "was like" in place of "said" were publicly executed, just think what a better country this would be.

Posted by: ostap | May 17, 2005 2:51:25 PM

I think that Matt tries to say that it is more important to provide decent defence to all indigent criminal suspects than to abolish death penalty.

In abstraction, yes. However, without opposition to death penalty and related research, we would never know how shoddy criminal justice can be in this country. And it is shoddy because of widespread sentiment that "they deserve that" (death, prison rapes, life sentence for a slice of pizza etc.) and "they do not deserve anything better" (health care, education opportunities and other humane conditions in prison, competent defence lawyers etc).

To change the attitudes, one needs a highly charged angle. Executions of the innocent, or incompetent are such an angle. If Matt has a better approach, he should mention it.

Posted by: piotr | May 17, 2005 2:51:35 PM

Prison is really, really bad for your health. Phenomenally bad. Bad enough that more prisoners die from being murdered than from being executed, never mind the illnesses that they'd probably not have contracted outside of prison. You can't give them their liberty back, either.

Posted by: Jake McGuire | May 17, 2005 2:54:46 PM

Agree with the irreversible argument, but that just informs what I think is a better argument and ties it with Matt's whole CJS paradigm. Why the DP is wrong is because it is unnecessary. If you put a criminal away for life (or 30 years) you accomplish the same thing in terms of deterrance and incapacitation. (maybe not in vengance, but that's not a legitimate purpose of punishment in a state-operated justice system anyway). But you accomplish the same thing without the possibility of being wrong being irretrievable.

Another thing on the unnecessary point is the SCt's long held belief that death is different. I think that we all intuitivly believe that this is right, and not just because there is a possibility of innocents executed. Death at the hands of the state is just different from imprisonment (even for 30 years or life) in a squishy, hard-to-define, but nonetheless real and important sense. It's why, for example, we want our wars to be just. And that's why Matt is wrong about the DP debate being on the same plane as conventional punishment debates. It isn't.

Posted by: Jake | May 17, 2005 2:57:47 PM

Ostap, I would add designers of particularly egregious web pages, not compliant with standards and causing browsers to freeze etc. (designers of faulty browsers could join them too).

How about alternatives? We could condemn them to, say, 5 years of involunary servitude in Mariana Islands?

Posted by: piotr | May 17, 2005 2:59:29 PM

Like PaulC said, "it depends on what you mean by 'humane'...

This isn't moral relativism, it's defining your philosophical terms. In arguments like these, the basis of disagreement is often in the terminology.

A civilized society prefers civilized rules and civilized forms of punishment. Since the term "civilized" can be prone to a variety of definitions, those forms of punishment follow suit.

I suggest that the less civilized our society believes itself to be, the less civilized will be the forms of punishment we utilize, and vice versa.

Posted by: wishIwuz2 | May 17, 2005 2:59:59 PM


An excellent point, but hardly an argument in favor of the death penalty. Or is it an argument for the abolishment of imprisonment?

Really, it's an indictment of our prison system, not our judicial system nor the statutes on criminal penalties.

Posted by: pickabone | May 17, 2005 3:01:37 PM


It wasn't meant to be in favor of the DP. And not for the abolition of impriosonment. What I am saying is that you accomplish the same thing, i.e., incapacitation, with prison as with the DP. And because death is different, you should really avoid it, especially becaus eit is totally unnecessary.

Posted by: Jake | May 17, 2005 3:08:01 PM

The power to mete out harsh penalties is, needless to say, an awesome one and anyone's who's been to the DMV will naturally have some doubts about the wisdom of entrusting such awesome power to the state.

There are times to be flippant, Matthew. The middle of a feeble argument isn't one of them. It just makes you look fucking immature.

Posted by: ahem | May 17, 2005 3:17:19 PM

(maybe not in vengance, but that's not a legitimate purpose of punishment in a state-operated justice system anyway)

Sure it is. Vengence - in the sense of vindication of the victim, or of expressing society's disapproval of the act - is perfectly reasonable as a purpose of a state criminal justice system. Whether it justifies the death penalty is another question (I think it can), but you shouldn't rule out the legitimacy of vengence as a proper purpose.

Posted by: Al | May 17, 2005 3:36:50 PM

One element seems to be missing from this discussion and that is people's attitude to power. We're social animals, admiration of power is hardwired into (most) people's brains, and by and large societies take their tone from the most powerful among them.

Well, the state is the most powerful entity people deal with. The death penalty says it's okay to kill people when you feel justified in doing so. Guess how that's taken by people who feel like a law unto themselves?

That, I'd be willing to bet, is why there are more murders when there are death penalties.

The death penalty is worse than useless, and not just because it can be wrongly applied and is irreversible, although that's bad enough. It's worse than useless because it corrupts the moral sense of whole societies.

Posted by: quixote http://acid-test.blogspot.com/ | May 17, 2005 3:38:42 PM

The death penalty says it's okay to kill people when you feel justified in doing so. Guess how that's taken by people who feel like a law unto themselves?

Oh, please.

Did the murder rate go down during the period in which the death penalty was abolished? Nope.

Posted by: Al | May 17, 2005 3:51:39 PM

If the death penalty were a deterrent, then W wouldn't be conducting an illegal, unjustified, "pre-emptive" war and occupation, flippantly causing the deaths of uncounted innocents.
Oh, wait, I forgot. The law doesn't apply to the well-off and/or well-placed.
Carry on.

Posted by: wishful | May 17, 2005 4:00:44 PM

I think what we should do is imprison would-be death-row people for life, but there should be a special "enhancer" on that life sentence: if a situation ever comes up in which their organs would be useful (their organs would be checked and their compatibilities entered into a database), they can be scrapped for spare parts.

... I think I'm drawing all the wrong conclusions from Candace Vogler's explanation of the objections to utilitarianism.

Posted by: Julian Elson | May 17, 2005 4:17:53 PM

The difference between the death penalty and other, non-death punishments that result in years of agony (e.g. any prison sentence for a poor person) is that the death penalty is irreversible. You can have someone in prison, and he can be set free from prison if people notice that he is innocent and decide to set him free. You can't do that if he is dead. Therefore, the death penalty should only be given to those who we know without doubt are guilty. However, that is impossible. Therefore, the death penalty causes the government to not just hurt innocent people, but to kill them, under the guise of killing a guilty person.

Posted by: Cryptic Ned | May 17, 2005 4:20:21 PM

No death penalty supporter has ever adequately explained to me why Europe, which abolished capital punishment in the 1960s, consistently has a murder rate one-fourth that of the U.S.

Posted by: wvmcl | May 17, 2005 4:38:34 PM

Crappy, undegraduate-level argument, Matt. Exoneration will free a live prisoner. An exonerated dead man will remain dead.

Posted by: Donny | May 17, 2005 4:51:58 PM

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