February 17, 2014
"Let's put the political correctness aside and debate this issue on the grounds that we really want to: is the death penalty moral or not?"
The title of this post is the final senitment expressed by Gus L. in conjunction with the terrific comment discussion that is now energized in response to this post noting Washington Governor Jay Inslee's remarkable decision to take his state's death penalty into his own hands by declaring a moratorium on executions while he serves as Governor. Though I do not want to distract from discussion about Governor Inslee's decision, I wanted to "tee up" the fundamental question Gus identifies while also contextualizing it with my usual who and how concerns.
I am grateful to Gus for cutting to the heart of the issue in all capital punishment debates and discussions, namely whether one believe the death penalty is moral (or just or righteous or legitimate or approrpiate or whatever other word one wants to adopt for this ultimate normative question). I am grateful because I hope and assume that everyone in the class realizes and recognizes (1) that one's own views on this ultimate issue inevitably colors one's perspective on all other capital punishment questions/debates, and (2) that reasonable people with reasonable and diverse views on theories of punishment reach reasonable and diverse conclusions concerning whether the death penalty is moral/just.
With this critical background, the who and how questions we are discussing in class take on an extra dimension in modern American society committed to democratic rule structured by a Constitution designed to safeguard some individual rights against majoritarian preferences.
1. If I am a Governor who has a strong perspective on whether the death penalty is moral (or not), how can and should I use my legal, political and social powers to further this perspective?
2. If I am the U.S. Attorney General (or a local District Attorney) who has a strong perspective on whether the death penalty is moral (or not), how can and should I use my legal, political and social powers to further this perspective?
3. If I am U.S. Supreme Court Justice (or a state Common Pleas Judge) who has a strong perspective on whether the death penalty is moral (or not), how can and should I use my legal, political and social powers to further this perspective?
4. If I am a prosepctive juror (or the family member of a murder victim) who has a strong perspective on whether the death penalty is moral (or not), how can and should I use my legal, political and social powers to further this perspective?
Arguably, if you have a very strong opinion on the morality of the death penalty and a very strong belief that "death is different" so that matters of life and death are to be treated different in kind than all other matters, then the answer to these four questions might be identical: you should use all your legal, political and social powers to further your moral vision no matter what your role in American society. But, if you think one's role in American society should influence the answer to the questions above, then arguably you think that there are moral considerations of even greater importance that the question Gus highlights as to whether the death penalty moral or not.
February 11, 2014
Should Washington Gov. Jay Inslee be praised or condemned for unilaterally suspending executions in his state?
I am intrigued to have learned right after class that Washington Governor Jay Inslee decided to take his state's death penalty into his own hands today by declaring a moratorium on executions while he serves as Governor. I have blogged about this notable decision here at my main blog; and these comments from Governor Inslee’s remarks announcing his execution moratorium (which can be accessed in full at this link) seemed especially notable in the wake of our conversations in class recently:
Over the course of the past year, my staff and I have been carefully reviewing the status of capital punishment in Washington State.
We’ve spoken to people in favor and strongly opposed to this complex and emotional issue, including law enforcement officers, prosecutors, former directors of the Department of Corrections, and the family members of the homicide victims.
We thoroughly studied the cases that condemned nine men to death. I recently visited the state penitentiary in Walla Walla and I spoke to the men and women who work there. I saw death row and toured the execution chamber, where lethal injections and hangings take place.
Following this review, and in accordance with state law, I have decided to impose a moratorium on executions while I’m Governor of the state of Washington.
Equal justice under the law is the state’s primary responsibility. And in death penalty cases, I’m not convinced equal justice is being served. The use of the death penalty in this state is unequally applied, sometimes dependent on the budget of the county where the crime occurred....
I have previously supported capital punishment. And I don’t question the hard work and judgment of the county prosecutors who bring these cases or the judges who rule on them.
But my review of the law in Washington State and my responsibilities as Governor have led me to reevaluate that position....
In 2006, state Supreme Court Justice Charles Johnson wrote that in our state, “the death penalty is like lightening, randomly striking some defendants and not others.”
I believe that’s too much uncertainty.
Therefore, for these reasons, pursuant to RCW 10.01.120, I will use the authority given to the Office of the Governor to halt any death warrant issued in my term.
Is this move further proof of the astuteness of the Marshall Hypothesis? And that "death is different"?
That Governor Inslee is (foolishly? rightfully?) much more concerned about equal justice than about individual justice?
That Governor Inslee lacks the stomach needed to faithfully execute his state's laws?
That Governor Inslee has the courage to be a statesman and not merely a politician?
UPDATE: This post over at Crime and Consequences by Kent Scheidegger takes apart the statement by Gov Inslee to express the view that concerns about equal justice should not preclude application of individual justice to carry out existing death sentences.
September 13, 2011
Which Furman opinion would you have joined? Why?
I suggested in class some time ago that you should read (and re-read) Furman thinking about which of the nine Justices' opinions you would have been most likely to join (assuming you had been a hypothetical additional Justice in 1972 and could only join an opinion rather than write your own). Because I suspect we will not have enough time in class to discuss all the opinions in Furman, I wanted to created this blog space to allow/encourage folks to weigh in on which of the opinions they found most convincing or compelling.
UPDATE on 9/16: Though she presumably did not indicate which of the Furman opinions she liked best, Justice Ruth Bader Ginsburg made some comments during a law school speech this week (as reported here) which suggest she is quite fond of what was the outcome in Furman and would like to get four more votes among the Justices on the current Supreme Court to once again halt death sentencing.
September 02, 2011
Am I right that conclusive deterrence evidence would "solve" death penalty debate?
I mentioned in class my belief that if we had truly conclusive and indisputable empirical evidence that using the death penalty to sentence/execute guilty murderers indisputably saves innocent lives, then there would be very little political and social debate concerning using the modern death penalty to sentence/execute guilty murderers. Does anyone want to take issue with this claim? Specifically, does anyone wish to argue that, even in the face of truly conclusive and indisputable that abolishing the modern death penalty would cost some innocent lives, that we still should get rid of the death penalty?
Critically, as revealed by reports at this pro-death penalty website and responses at this anti-death penalty website, there plainly is not clear empirical evidence that using the death penalty to sentence/execute guilty murderers saves innocent lives. Thus, one might reasonably accept my contention and still categorically oppose the death penalty given the current (and perhaps inevitable) absence of conclusive empirical evidence. Still, I want to have a discussion — here on the blog and/or in class — concerning my basic assertion that conclusive empirical evidence here could end what is often cast as a purely moral debate.
UPDATE: Inspired in part by the many thoughtful and effective responses to my initial inquiry, I am going to sharpen the hypothetical and see if the responses stay the same.
Let's suppose that we now have truly conclusive and indisputable evidence that the summary execution of Osama Bin Laden served to very significantly reduce the number and scope of terrorist attacks in the Middle East and around the world (including attacks being planned for the US), whereas the capture and continued confinement of Khalid Sheikh Mohammed has served to very significantly increase the number and scope of terrorist attacks in the Middle East and around the world (including attacks being planned for the US).
If we did have truly conclusive and indisputable evidence that OBL's quick execution saved many innocent lives in the US and around the world while KSM's capture and likely life imprisonment has cost many innocent lives in the US and around the world, do you think persons with moral opposition to the death penalty would still want all major terrorist suspects handled like KSM rather than like OBL? (Ignore, for purposes of this hypo, that KSM was waterboarded, though maybe that makes it easier to accept my supposition that how the US has dealt with KSM has cost more lives than how the US dealt with OBL.)
Steve D. gets to the heart of my inquiries here when he states that "only someone who bases their morality on pure utilitarianism would be swayed by such evidence," but he then claims that "most people are not utilitarians." I have the contrasting belief that everyone is a utilitarian if and when — and perhaps only if and when — the stakes get high enough and the empirical evidence is conclusive. And I think this is a critical issue to explore at the outset of any death penalty discussions becausemany people on all sides of the DP debate are often (1) quick to assert that nothing is more valuable/important than innocent lives, and (2) eager to claim that they have strong (but not conclusive) empirical evidence to support their DP position(s).
January 27, 2010
Some "scientific" and "academic" discussions of death penalty deterrence
Though we did not have time for me to finish connecting my themes of scientific discovery and deterrence theory in the context of the death penalty, I do have space on this blog to link to lots of (totally optional) reading on the topic of whether the application of the death penalty in the United States may actually save innocent lives.
Specifically, a collection of some of the recent scientific-data-crunching research on on the deterrent effect of capital punishment is available here from the Criminal Justice Legal Foundation. In addition, a few years ago Professors Cass Sunstein and Adrian Vermeule created a stir with a provocative law review article suggesting that new deterrence evidence might make the death penalty morally required for states concerned with value of life. In this older post you can find links to this paper and to various responses it has generated.
If you do some Google searching, you can quickly find lots of other websites with lots of other death penalty deterrence discussions. But you will generally find that folks/organizations against the death penalty are often eager to stress studies and evidence undercutting deterrence claims, and that folks/organizations for the death penalty are often eager to stress studies and evidence bolstering deterrence claims.
In the comments to this post and in class next week, I would like to hear thoughts about whether folks believe this kind of bias is inevitable and unavoidable in all studies/debates about deterrence (whether in the death penalty context or in other criminal justice settings), or whether I should continue to hope that someday will we have good enough scientific tools and smart enough researchers to come to a definitive conclusion as to the "true reality" of deterrence in the application of particular types of punishment.
January 24, 2010
Important (pre-)class activities for last week of January
A quick weekend post to say sorry for hogging up all the air-space in last week's class as I provided a (too lengthy) "who sentences" overview of some of the ideas and themes in Chapter 2. This coming week, I promise that our class on Jan. 27 will be much more dialogue than lecture, especially as we turn more formally to the always controversial and dynamic topic of the death penalty. In preparation for this week and beyond, I wanted to make sure we were all on the same page administratively by going over a few matters:
FIRST: It is critically important for me to receive (ASAP via email or under my office door in Room 140) a completed version of at least the first page of the pre-class questionnaire (available here). I want to tabulate some "results" from student responses, which requires me to have as many responses as possible.
SECOND: I plan to spend the first part of this week's class discussing the short mid-term "think piece" and the final "white paper" assignments for this course. Please come to class armed with any and all questions (and ideas) about these assignments.
THIRD: I am eager to do another lunch with students after class on Wednesday, so keep your after-class schedule open if you want to take advantage of your latest (but not last) chance for a free lunch.
FOURTH: I have this new post at my main blog that can and should provide another basis for discussing and debating modern death penalty theory and practice in class this week. (Of course, there is lots in the death penalty parts of Chapter 3 of the textbook that should also serve this end.) As always, students eager to pad the class participation part of their grade should use the comments to this post as an opportunity to get our class discussion about the death penalty (or any other topic) off to a running start.
March 08, 2009
Is the economic argument against the death penalty a game-changer?
Inspired by a comment by Shawn to another post, I thought it might be valuable to again review all the recent discussion of the economic costs of the death penalty. It has long been clear that the administration of capital punishment is a costly affair, though only now in tough budget times do we see politicans discussing this reality with emphasis and proposals for reform. Whatever one might think of the merits of these arguments (which folks are welcome to discuss in the comments), these links to posts at my main blog highlight that the idea is getting a lot of media attention in recent weeks:
Some recent posts noting media discussion of death penalty costs and reform proposals:
- States considering laying off the death penalty during tough economic times
- The economic case against the death penalty getting more and more attention
- CNN now talking about the costs of the death penalty and state reforms
- More discussion of cost concerns in debates over the death penalty
- Still more discussion of the costs of the death penalty
- Capital case cost concerns continue to inform reform debate
- Great new (though still dated) examination of the death penalty and plea bargaining
- Interesting time for Time's discussion of death's demise
- What might 2009 have in store for . . . the death penalty in the US?
February 08, 2007
Improvement versus abolition
As stressed at the end of Wednesday's class, I want to conclude the Berman-driven unit of this course by having a collective discussion about how the modern administration of the death penalty might be improved. As I suggested in class, I am often troubled that many who lament administrative problems with the modern death penalty — ranging from wrongful convictions, to racial disparities and other inequities, to the poor quality of defense representation — typically urge abolition of the death penalty as the solution. When I hear these arguments, I wonder why suggestions for administrative improvements, rather than abolition, isn't a more appropriate response to these administrative problems.
Over at my home blog, a few months ago I had this post asking "How can the death penalty be sensibly improved?", which produced numerous interesting comments. I am eager for this question to flower again in this space, as well as in our class discussions.
As I mentioned at the end of class, the issue of improvement versus abolition is of particular interest in Ohio. As noted in posts linked below, Ohio's new Governor and Attorney General seem concerned about the operation of the Buckeye death penalty, but neither seems to be an advocate for abolition.
Ohio-related DP posts from my home blog:
- Could Ohio and Wisconsin chart a path to a better death penalty?
- A new look at the death penalty in Ohio
- The lethal mess in Ohio
- Ohio's Gov-elect produces capital wondering
- Ohio's new governor signs three reprieves
- Watch Ohio for death debates
January 17, 2007
Do aesthetics and anniversaries matter in DP debates?
Over at my home blog, I ask here whether execution headaches impact where capital debates are headed. I would be interested in student input on this question.
I also note here that today marks a notable death penalty anniversary: the first "modern" US execution took place exactly 30 years ago today. This factoid, in turn, prompts a similat query from me: does the marking of a notable anniversary have any real impact on capital punishments debates or developments?