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February 8, 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:

February 8, 2007 in Pro/Con arguments surrounding the death penalty | Permalink


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Regarding the line of thinking from yesterday's class about whether excluding certain groups from the DP makes its administration more variable and disparate:

It seems that this line of thinking can be reduced to the following: If you have a heterogenous group (e.g., capital defendents that includes mentally ill folks, retardees, juvenile offenders, women, and other "run-of-the-mill" regular 'ol murders), and you take out certain groups, thereby making the DP candidate pool more homogeneous, you will have increased variability/disparity.

The logic of this is difficult for me to understand. In general, if you have a heterogenous system, it has inherent variability, and variability related to the heterogeneity. So reducing the heterogeneity should reduce overall variability, not increase it. THe empirical result is of course difficult to predict, but it's difficult for me to conceive of a situation where reducing heterogeneity will increase variability.

Posted by: Scott A | Feb 8, 2007 2:15:46 PM


I was not arguing that there is more overall variability in the DP now that we've greatly narrowed who is eligible. Rather my point, poorly developed in class perhaps, is that the variability is now based on emotional (and often skewed) judgments about who among a homogeneous group should be shown mercy.

In a more heterogenous group, legally pertinent criteria are more likely to influence the sorting. In a more homogeneous group, I fear that random and systematic biases are more central to the sorting.

Posted by: Doug B. | Feb 8, 2007 5:07:31 PM

Doug, your question goes to the heart of the debate.

Pointing out the problems with State killing is not the result of false motives, but rather coheres with the central abolitionist thesis -- that the system is a result of our worst human impulses. The fact that the system allows for wrongful convictions, arbitrary death sentences, etc., is only illustrative of the a primitive lack of concern for individual, the person, before it. Even without these problems, though, state killing is the result of a primitive, xenophobic impulse.

Proponents of executions usually end up backed into the corner of waiver theory because the only way to allow yourself to kill is to see people convicted of murder as less than human, animals that need to be put down in the name of public safety (or at least an illusion of safety, or possibly simply convenience). It's no coincidence that the poor, sick, and oppressed are the ones who invariably make up the death row population.

Executioners agree with me on this, and admit that when it comes time to execute, they have to view the condemned man as less than human in order to put him down like an unwanted stray dog. This is just one example, perhaps the most direct example, of the brutalizing effect state killing has on people. Jurors, prosecutors, judges, defenders, informed citizens, and others in the system also feel the effects.

We can do better.

Posted by: rothmatisseko | Feb 8, 2007 11:44:50 PM

I have pondered this question for 2 days now. I came into this class a relatively hard-line abolitionist. Although my position has not necessarily waivered, I have decided that it would be worthwhile for me to appreciate and reflect on my position a great deal more. To this end, I find this question perfect - if I *were* able to come up with a sensible way to improve the death penalty, maybe I *should* question my position.

Because I have been unable to come up with any even cursory suggestions, I am left to question the underlying justification for my abolitionist position: if I cannot think of any sensible improvements, I must not be anti-death penalty because the system is "broken." It must be that I feel there is something fundamentally wrong with state-sanctioned death as an appropriate punishment.

I am still eager to hear others' suggestions, because I am slightly uncomfortable solidifying my position (or at least my justification) simply because I cannot think of an improvement I might find acceptable.

Posted by: Brett T. | Feb 9, 2007 5:40:18 PM

Brett: Thanks for the very candid and insightful explanation of your thinking. Keep thinking hard as we move into the next stage of the course.

Posted by: Doug B. | Feb 11, 2007 7:10:12 AM

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