I Guess The Comfy Chair Was Not An Option

This will be an uncharacteristically short post for Emptywheel, but I would like to note the news yesterday that Utah death row inmate Ronny Lee Gardner has chosen to be executed by firing squad. Due to the age of his case, Gardner had the option of either lethal injection or firing squad. After being supplied with technical descriptions of how both death methods are administered, Gardner designated firing squad as his choice. From the New York Times:

Ronnie Lee Gardner had a quarter-century to ponder his choice, whether to die by lethal injection or take four bullets in the heart.

In a Utah courtroom Friday, 25 years after he was sentenced to death for killing a man during an escape attempt, he declared his preference to the judge: “I would like the firing squad, please.”
……
Procedures for the last two such executions in Utah, which officials said would largely be followed with Mr. Gardner, had five unidentified officers using identical .30-30 hunting rifles from a distance of about 20 feet. One rifle — which one unknown to the shooters — was loaded with a blank. The condemned man was strapped into a seat while wearing a black jumpsuit and a hood, with a white cloth circle placed over his heart to provide a target.

Unlike many fellow liberals and progressives, I do not have any particular outright ideological or philosophical objection to the death penalty. That is not, however, to say I endorse its wholesale and common use as occurs in many jurisdictions (can you say Texas); I absolutely do not. Rather my objections are strident based on the fact it is economically inefficient – it simply costs the government and taxpayers far more to kill death eligible inmates than to imprison them for life. I also think it is far too easy to impose the death penalty and it happens in too many cases where there are sufficient questions of identification and other germane facts; the death penalty should never be imposed where there is any question whatsoever outstanding.

All of the above said, in situations where death has been properly and legally imposed, I really don’t care how it is done. If Ronny Lee Gardner wants the firing squad, so be it. There is always fascinating discussion to be had on this subject, and I thought I would throw open the floor for just that.

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149 replies
  1. BoxTurtle says:

    I’m with you. There’s no measurable deterrent effect, the cost in taxpayer dollars is entirely too high, and there are too many people (>0) who have been released from death row after proof of innocence.

    Yes, there are crimes that deserve death. I’m simply not willing to pay for it.

    I’m just waiting for the death penalty types to come up with a method of execution that allows organ donation. Given the organ waiting list and some of the VIPs on it, I’m betting you could get death for a speeding ticket if you happened to be the right blood type.

    Boxturtle (read a scifi story based on that premise. Scares me still)

      • BoxTurtle says:

        Thanks. I needed that.

        Boxturtle (going to go lock my doors, load my gun, and hide for awhile. *shudder*)

    • bmaz says:

      Yes, there are crimes that deserve death. I’m simply not willing to pay for it.

      Perfectly said. I have seen just how much appellate work goes into death cases (although I have only worked on one such appeal personally) and I have had the pleasure of touring the actual death house here (I think they have a new one now) and have seen all the studies over the years about the comparative costs. The difference is stunning. That alone has always been good enough for me, not to mention having been exposed long term to the flaws existent in the criminal justice system. But when Barry Scheck and Peter Neufeld and their Innocence Project started showing the rest of the world just how bad things are, it really seemed to sink in to a lot more people. Not enough to change it all yet, but I think we are getting there.

  2. Palli says:

    The principle problem I have with the death penalty is this: as a people, we should not be responsible for making any individuals kill other individuals- whether it is a firing squad of 8 gunmen and only one rifle with bullets or a person inserting a needle.

    Now you are going to point out that we have soldiers we train to kill. My answer is “Like Timothy McVeigh” and “18 Vets commit suicide every day.” not working out so well

  3. skdadl says:

    I thought I would throw open the floor …

    Gosh, Dad — that’s quite the image to close with when you’re on this topic.

    I’m sure I agree with all your practical reasons too, bmaz, but I’d be opposed on principle anyway. State/judicial murder, which is nothing if not premeditated — usually for very long periods — is sadistic, and diminishes our common humanity. It’s wrong for the same reason that torture is wrong.

    Can you be a judge in the U.S. if you are opposed to capital punishment on principle?

    • BoxTurtle says:

      Can you be a judge in the U.S. if you are opposed to capital punishment on principle?

      In theory, yes. In practice, people who are on record opposing the death penalty on principle do not often get elected or appointed.

      Boxturtle (GOPers label all such “soft on crime”)

    • bmaz says:

      I guess what piqued my curiosity here is the seeming outrage or incredulity that Gardner would be executed by firing squad. Not that he is going to be executed in the first place, but at how he is going to be executed. Same for the string of appeals over whether lethal injection is too brutal of a method of execution. Jeebus, the issue is whether such a person should be killed; once that decision has been made, I don’t really care if one method produces ten more seconds of pain than another – if we are not going to worry about killing him, why worry about the pain he feels on the way out? It is just silly. Morbid, but silly.

      • BoxTurtle says:

        The manner of execution DOES make a difference. As a society, we’ve decided that the death should be implemented as painlessly as possible. I think it helps our consciences.

        As science advances, we come up with improved execution procedures. For example, one person has designed a microwave helmet that would cause death without disfigurement in something around 1/100 of a second. This is considered progress.

        It would seem to me that scientific effort could be better spent elsewhere.

        Boxturtle (I’m not sure any method is more painless than a properly done long drop hanging)

    • Peterr says:

      Well put.

      Theologically speaking, when boiled down to its essence, the death penalty is the state playing God. Even if you are sure — 100% sure — that the defendant committed the crime in question, what does the state gain by lowering itself to the defendant’s level?

      “We can kill, just like you” is hardly a statement of moral superiority.

      • 300SDL says:

        “We can kill, just like you” is hardly a statement of moral superiority.”

        Indeed it is not. It is a statement of moral hypocrisy ala “do what I say, not what I do” that is not rooted in justice and rehabilitation, but revenge. Revenge escalates the cycle of violence helping to insure that this madness will continue forever. I don’t see what comfort anyone can take from being a hypocrite.

        And spare me the bizarre rationalization that the death penalty is cost effective because it saves tax dollars. How insensitive and crude. The high price we pay for our moral bankruptcy defies a simplistic cost benefit methodology to rationalize it.

  4. Gitcheegumee says:

    Jeebus, the issue is whether such a person should be killed; once that decision has been made, I don’t really care if one method produces ten more seconds of pain than another – if we are not going to worry about killing him, why worry about the pain he feels on the way out? bmaz

    NOTE:Why do I think that sounds eerily similar to the mindset and/or comments of some of the torturers or soldiers who were in the Wikileaks video?

  5. earlofhuntingdon says:

    Mary Queen of Scots is a prominent example of someone who would have had an opinion about how to carry out the death sentence, starting with wishing the ax her headsman used had been adequately sharpened, and that he had an aim. Being pummeled to death rather than deftly decapitated is probably not what she had in mind. So, yes, the manner of imposing the sentence does make a difference.

  6. earlofhuntingdon says:

    I oppose the death penalty because of the frequency with which errors are made. Even when known, what ought to be reversible errors can be cast aside in a Dreyfus-may-care way with the magical intonation that “certainty” is a more important objective than justice. That’s a roundabout way of saying that protecting the state’s politicians is more important than protecting its citizens from those adequately and competently adjudged to be so frightful that they must have their lives, not their liberty, taken from them.

  7. fatster says:

    What is the history of the death penalty? From European monarchs asserting their complete superiority over their subjects to what we have now in this country? Was the origin of the thing in arrogation, dominance, terror? I’d appreciate knowing.

    • BoxTurtle says:

      It’s been around since before recorded history. Perhaps it was originally intended as sympathic magic. You try to prevent murders by sacrificing murderers.

      Boxturtle (Alas, todays executioners don’t seem to have the chant quite right)

      • fatster says:

        Many thanks. But at some point it got codified, became part of law, made the transition from the primitive to what we think of as acceptable now. That’s what I was curious about. Was there any debate along the line, or was it just presumed since it had such a long history?

        We no longer chop off a thief’s hand, and we no longer chop off a person’s head, in extracting “justice”. So the thing did go through some transformations.

        • fatster says:

          Hmmm. I’ve gotten off into an area that is far too pedantic, particularly for a Saturday night, so I withdraw my questions. Thnx all.

  8. bobschacht says:

    Rather my objections are strident based on the fact it is economically inefficient – it simply costs the government and taxpayers far more to kill death eligible inmates than to imprison them for life.

    This is the part that surprises me. I do not see how this can be true. What is your evidence for this?

    I am opposed to the death sentence for other reasons.

    Bob in AZ

    • bmaz says:

      Did you read the link? I have been reading study after study reaching the same conclusion ever since I was in law school.

        • bmaz says:

          I know it seems counterintuitive at first blush, but it is pretty established. Even setting aside all the legal and court time, money and resources, I have had corrections officials tell me that just the higher costs of maintaining segregated death row facilities and the actual death chamber and to carry out the death process itself is such that it makes just as much if not more sense to warehouse capital convicts in secure maximum security units for life. There are only approximately 3,000 people on death row total in the US, with about 700 – nearly a quarter – of them in the dysfunctional California penal system alone. So the many facts and statistics in that link derived from California are very representative and telling.

  9. nomolos says:

    Murder is murder and is especially heinous when carried out by officialdom. A disgusting practice. Barbarous and typically american. This country seems to revel in state sponsored torture and murder.

  10. Theater403 says:

    There was shockingly little response to this but at least the end of the string addressed the main problem with the position of the poster.

    No one really argued any ethics or philosophy here. Why not?

    1. Killing is considered morally wrong. And yet we do it every minute of every day as a species. We kill all things bright and beautiful, big and small, etc., mostly indiscriminately. We like watching television that focuses on killing.

    2. Killing via the state is on another “order” and we often want to give it a “pass” by saying it’s off the individual conscience if the state does it because a person being executed has egregiously broken their “social contract”.

    3. Social contract theory is itself highly contested as a “best practice”.

    4. Nonhuman animals, ecosystems, etc., destroyed continuously for human “gain”.

    All these things are linked. Start with one and slide into the other.

    Killing is wrong and, as far as I can think it through, only allowable, morally, in individual self-defense (not pre-emptively) against real mortal jeopardy.

    Have at it.

    • BoxTurtle says:

      Here’s why I don’t argue with the philosophy of the death penalty. First, because I’m simply not going to get any traction on that issue. There are too many “eye for an eye” types here in the states and eventually that argument gets bogged down in various Bible interpretions. Seems to me that “Thou shalt not kill” is pretty clear. And for some, that gives them a place to hide their racism.

      The second is personal experience. I live in Ohio, and from the early 1970’s on it seemed like every crook we caught for murder was out on parole or probation for something else. I’d look at those folks records and wonder why they were wandering around loose. You had people given 20years to life getting out in 6-7 years. A judge would let them loose. A parole board would let them loose. And they’d kill again. It reached the point where the we just wanted this to stop and we had zero confidence in the courts or the legislature.

      It seemed like the ONLY way to keep these people locked up was to sentance them to death and the Supremes had just banned it. Which only angered folks. The only thing we could be certain about was that an executed murderer would NOT commit another crime.

      So Ohio figured out how to execute constitutionally because the voters demanded it. After that ruling by the supremes, you couldn’t get elected County Engineer in Ohio if you didn’t support capitol punishment.

      Now 20 years in Ohio generally means 20 years. We can sentence to life without parole and make it stick. We don’t need to kill the killers anymore to protect our families, if indeed we ever did.

      Since about 1990, I’ve gone from stongly pro-death to neutral to strongly anti-death. Not because I believe the death penalty is morally wrong (I don’t), but simply because it does not accomplish anything that makes it worth the cost.

      Boxturtle (If that makes me evil, so be it)

      • Theater403 says:

        I think this means you simply have to be able justify your idea of “morality” applied to killing as a punishment. Can you do that rationally here now?

        • BoxTurtle says:

          To myself, yes. As to if others accept my version of rationally, well…

          My only goal in cases like these is to prevent re-offense. If the ONLY way to do that is to kill, I accept that. It is better to me to kill one criminal than to let that criminal kill more innocent people. In Ohio, during the time in question, it sure seemed like that was the only way.

          But it is no longer the only way. And it is not the best way. And I’m not a fan of revenge for revenge’s sake.

          Boxturtle (Not even wrt Scary Brown Moslems)

    • Palli says:

      I did at #4, perhaps clumsily. The act of killing has a chemical reaction in humans and we can not control that reaction- it might be deeply empathetic, numbing or it might be thrilling. Why would a society assign individuals to do killing? Again, murder is murder.

  11. CTMET says:

    Personally, I might take the firing squad.

    http://en.wikipedia.org/wiki/Lethal_injection

    Opponents of lethal injection believe that it is not actually painless as practiced in the United States. Opponents argue that the thiopental is an ultra-short acting barbiturate that may wear off (anesthesia awareness) and lead to consciousness and an excruciatingly painful death wherein the inmate is unable to express his or her pain because he has been rendered paralyzed by the paralytic agent.[29]

    Opponents point to the fact that sodium thiopental is typically used as an induction agent and not used in the maintenance phase of surgery because of its short acting nature. Following the administration of thiopental, pancuronium bromide is given. Opponents argue that pancuronium bromide not only dilutes the thiopental, but (since the inmate is paralyzed) also prevents the inmate from expressing pain. Additional concerns have been raised over whether inmates are administered an appropriate level of thiopental owing to the rapid redistribution of the drug out of the brain to other parts of the body.[29]

    Additionally, opponents argue that the method of administration is also flawed. They state that since the personnel administering the lethal injection lack expertise in anesthesia, the risk of failing to induce unconsciousness is greatly increased. In reference to this problem, Jay Chapman, the creator of lethal injection, said, “It never occurred to me when we set this up that we’d have complete idiots administering the drugs.”[30] Also, they argue that the dose of sodium thiopental must be customized to each individual patient, not restricted to a set protocol. Finally, the remote administration results in an increased risk that insufficient amounts of the lethal injection drugs enter the bloodstream.[29]

    In total, opponents argue that the effect of dilution or improper administration of thiopental is that the inmate dies an agonizing death through suffocation due to the paralytic effects of pancuronium bromide and the intense burning sensation caused by potassium chloride.[29]

    Opponents of lethal injection as currently practiced argue that the procedure employed is designed to create the appearance of serenity and a painless death, rather than actually providing it. More specifically, opponents object to the use of Pancuronium bromide, arguing that its use in lethal injection serves no useful purpose since the inmate is physically restrained. Therefore the default function of pancuronium bromide would be to suppress the autonomic nervous system, specifically to stop breathing.[29]

    Whats the point of the blank ?

    • skdadl says:

      I think that firing squads have traditionally included one randomly assigned blank so that none of the individual shooters can be considered to have committed the killing — ie, one of them didn’t, but no one knows which one.

      An interesting indication of some residual guilt over state murder, yes?

      • BoxTurtle says:

        I was once told that blank tradition started because frequently a firing squad is executing one of their own. It was a penalty normally applied only to soldiers and was consider a more honorable death than hanging. But nobody really wants to shoot someone from their own army, no matter how much they deserve it.

        IMO if you can’t find enough soliders for your firing squad with live ammo, you should be reconsidering the sentance.

        Boxturtle (We’d have fewer executions if the sentancing judge had to push the button himself)

  12. Theater403 says:

    the “blank” eases the conscience of the killers–supposedly–maybe you had the blank and so can be absolved of the murder.

    • earlofhuntingdon says:

      It is a centuries old practice. No soldier or executioner knows which rifle was firing blanks. It allows each of them to absolve themselves of their responsibility, while empowering collective killing. There is only one blank so that there are enough live rounds that the victim will be killed in the first volley.

      All in, while louder and more graphic than [false] images of silent, quiet death by needle, I’d probably take the firing squad. Or a large empty syringe; the resulting circulatory bubble is likely to make short work of the injectee, but it’s not foolproof.

    • BoxTurtle says:

      Why would you? Other than the Ghoulish news coverage of the first modern times firing squad execution, there was really nothing special about the Gilmore case other than proving that a firing squad execution still met the Supremes standards as a method.

      Bxoturtle (nasty little run on sentence there, too lazy to fix it)

        • BoxTurtle says:

          True enough. Still, it was a long time ago. We Americans like to keep a short memory about things that embarass us.

          Boxturtle (Bush? Bush who??)

  13. PAR4 says:

    It’s only expensive because the fucking lawyers made it so. When there is incontrovertible proof and jury consensus take them out and hang their guilty asses.

    • BoxTurtle says:

      Due process is a bitch, isn’t it?

      And the horrible thing is, despite all that money spent we STILL have innocent people on death row. Which ought be a hint that we can’t implement the death penalty with sufficient accuracy at anything approching a reasonable price.

      A risk of your system is that a jury will simply decide they don’t like somebody and they don’t care if he’s guilty or not. Take him out and shoot him allows for no review of the jury’s decision.

      Boxturtle (And to be fair, most of the cost is due to the Supremes ruling in Furman)

    • earlofhuntingdon says:

      Proof is only “incontrovertible” when you can reliably assess its provenance, where it came from and how it was processed, and when the person against whom it is used has the opportunity to refute it by illustrating its deficiencies and by giving alternate explanations for its meaning or implications. The least “incontrovertible” proof is eyewitness testimony; two people rarely agree on the same description of events.

      The government we empower with the ability to deprive us of life or liberty should be made to prove its case each and every time. If we stop demanding that, the government, as people do, will let slide its standard for what is incontrovertible and let any old thing or rationale substitute for proof beyond a reasonable doubt.

      Lawyers, like the police, the undertaker, the fire brigade and the lifeguard, are not wanted – and no one wants to pay for them or the process through which they work – until you are the one who needs them.

  14. perris says:

    Rather my objections are strident based on the fact it is economically inefficient

    that’s not the only objection I bet you have bmaz

    it’s also demonstrated,(link to follow), ethnics are disproportionately executed vs the same crime for social peers

    I’ll try to find a link

    first link, close but good enough;

    NEW YORK, Jul 19, 2006 (IPS) – Juries in the U.S. tend to hand down the death penalty twice as often to black defendants with stereotypically black features like darker skin, bigger noses and fuller lips, than to those perceived to have less stereotypically black features, according to the findings of a new study

    here

    • perris says:

      here’s another one, redirect only allows me to post teh cached page

      Blacks convicted of killing whites are not only more likely than other killers to receive a death sentence – they are also more likely to actually be executed, a new study suggests.

      • BoxTurtle says:

        The old studies suggest that as well. But if you’re a fan of the death penalty, you read that as a problem with sentencing WHITES.

        Boxturtle (The death penalty itself is not racist, judges and juries sometimes are)

    • bmaz says:

      Oh, all quite true. I have all kinds of objections to the death penalty, pretty much across the board; but not really the adamant “never because it is morally heinous” one some express. For instance Tim McVeigh admitted guilt and wanted to die. Fine; buh bye Tim. There are just all kinds of pragmatic bases for not having it, and Box Turtle has covered a lot of them, and they cumulatively militate very strongly in favor of no death penalty. And as I mentioned above somewhere, it is not just economic; the work of Neufeld and Scheck, who I have great personal respect for, is a stunning comment and ground for abolition of the death penalty. I adopt and accept all those arguments; I am just not one of the absolutists, although I understand and respect the positions of those who are.

  15. serge says:

    I do have a particular outright ideological and philosophical objection to the death penalty. It’s wrong on so many levels, but just take as an example one moral stance. The death penalty is carried out by the state. I am the state. The state is me and every other citizen within its bounds.

    I may not kill, thus the state may not kill. Anyone care to argue the alternative? I don’t expect much agreement on this, but I believe that legal killing is no less wrong than the criminal taking of life.

  16. tjbs says:

    I’ve always been against killing of any manor for any reason.

    Why no fuss about the primitive firing squad because george w bush made it cool to watch someone squirm as he was hung like Saddam. He loved that wild west justice especially when he got to play a part.

    The death penalty is a two tiered system with someone like a filthy rich DuPont murdering a wrestler in broad daylight in his driveway, didn’t get put to death and that works for me all the way tho the end of the list for those with an appointment with the state’s grim reaper.

  17. fatster says:

    Please pardon the O/T, but it seems someone has his feelings hurt.

    Sensenbrenner Feels ‘Betrayed’ by FBI’s Patriot Act Violations

    LINK.

  18. masaccio says:

    I am beginning to think that the adversarial nature of the court system works against justice. The desire to win at all costs is so dominant that I no longer feel any confidence that any decision of this import is safe in the hands of the court system. It doesn’t matter if one corporation gets money from another in some pointless case, but it does matter when the outcome is death.

  19. bgrothus says:

    No to the death penalty. It was finally outlawed in NM.

    I was kicked off a jury one time in a death penalty case b/c I could not “uphold the law.”

      • BoxTurtle says:

        Your odds are better with a jury, even one that has anti-death folks weeded out, than with a judge who must face the voters.

        Boxturtle (Judges around here have lost re-election because of a single case)

        • T-Bear says:

          …,than with a judge who must face the voters.

          Judges around here have lost re-election because of a single case

          Now you have discovered how the “Law and Order” people have contaminated the judicial system and usurped it to their political ends.

      • bgrothus says:

        Yes, I was a plaintif in a class action suit about exactly that. It is not right to exclude someone from the pool on the basis of oppo to the DP, but they can say you won’t “uphold the law.” I guess the case really went nowhere, but we did outlaw the DP a year ago. That was progress.

  20. arcadesproject says:

    The EU has no death penalty. A country that has the death penalty can’t accede to the EU. Countries don’t have to adopt the euro as their currency but they do have to eschew the death penalty. Further, people convicted of serious crimes, including terrorism, often receive sentences in the 10-20 year range. European prisons I have read about appear to be decent places, humanely administered.

    Is it possible that the European approach to criminal justice represents the wave of the future? And that the US, with its towering rates of incarceration, grim prison conditions and frequent executions, is bringing up the rear?

  21. Margaret says:

    I used to have no problem with the death penalty but since then, too many people have been either freed from death row or have been exonerated post mortem. It is also far too often only applied to people who can’t afford a decent attorney, making the death penalty something that only indigent people are subject to. Until guilt can be established with 100 percent accuracy and until the ultimate penalty can be applied 100 percent fairly, I will oppose any and all executions. Period.

    • BoxTurtle says:

      According to some of the lawyers I know, the most common use of the death penalty is to get a guilty plea in return for NOT imposing it.

      One particularly cynical lawyer in the bunch suggested that if plea bargains were taken into account, the death penalty would be very economical indeed.

      Boxturtle (These were criminal defense lawyers, perhaps they were a bit baised)

      • Margaret says:

        According to some of the lawyers I know, the most common use of the death penalty is to get a guilty plea in return for NOT imposing it.

        If that isn’t coercion then nothing is. Prosecutors are more interested in conviction rates than they are in justice and public defenders are more interested in the number of cases they can move through the system than they are in guilt or innocence. Show me a prosecutor who boasts of a 100 percent conviction rate and I’ll show you a damned liar.

        • bmaz says:

          Yeah, um, that is the rationale for ALL plea bargains. The prosecutor has more severe charges and penalties he can obtain, and defendants take a plea in return for not facing that. So are all plea bargains unacceptable??

          Show me any lawyer who claims a 100% success rate and I will show you a lawyer that is either extremely selective about what they handle or a lawyer that hasn’t done much.

          • Margaret says:

            You’re either being deliberately obtuse and misinterpreting what I am saying on this thread or you are truly paranoid delusional. Out of respect for you, I choose to believe the former. How can anything I wrote be interpreted as “all plea bargains are unacceptable?

            • bmaz says:

              Your claim was that it was coercion based upon prosecutors desire with relation to the death penalty. Well, that is the case with every plea bargain.

        • BoxTurtle says:

          That’s a bit extreme. When a prosecutor offers just a lighter sentence in return for a plea deal it’s because he’s got a rock solid case. He’s just trying to save time and money. Also, you never know what a jury will do and a prosecutor prefers to avoid that risk. A defendent can appeal a conviction forever, but it’s a VERY high bar to meet for a prosecutor to even try to appeal a not guilty.

          Boxturtle (I’d guess more than half the criminal cases in the area are settled with a bargain)

          • Margaret says:

            Stop reading what bmaz writes in order to interpret what I said. bmaz said that I think all plea bargains are unacceptable, I never even suggested it. Ever. I said that the plea bargains YOU described were unacceptable and coercive. I also said what I did about a 100 percent success rate and lying prosecutors because prosecutors don’t get to pick their cases and a 100 percent conviction rate is suggesting that the police are infallible and we know that’s not the case.

          • DavidKaib says:

            This is also extreme. When a prosecutor offers just a lighter sentence in return for a plea deal, it is sometimes because he or she has a rock solid case, and at other times it is not. The other reasons a defendant might take a plea are 1) because they fear they will lose despite the merits (you never know what a jury will do) or 2) because the costs of fighting may be higher than the eventual penalty (this is more often for lower level offenses.)

            • BoxTurtle says:

              True enough. I was refering specifically to the life vs. death plea bargain and I wasn’t clear on that.

              [email protected]: Sorry for not being clear as well. My comment only applied to the life vs death case you felt was coercieve.

              Boxturtle (I plead insufficient caffine and am working to correct that)

    • bmaz says:

      Actually, the capital divisions of most public defender offices are staffed by extremely good attorneys. No all understand you, Texas is still a notable exception I believe, but on the whole capital cases get extremely good quality representation. By the way, to the best of my knowledge, only one person has been conclusively established to have likely been innocent post mortem; although many have been while on death row.

      • Margaret says:

        Oh so it’s just one so that’s okay, is that it? There are several for whom we can no longer ascertain their guilt or innocence conclusively and there are many in which states dragging their feet or out and out denying release of forensic evidence. I’m not disparaging all public defenders. If you read what I wrote you could surmise quite easily that my argument is that executing one innocent person is too many. You can always let somebody out of jail but you can’t bring them back to life if the prosecution has been found to be mistaken or lying. Until you can give life to dead people who deserved to live, then don’t be so eager to deal death to those who deserve to die.

      • DavidKaib says:

        Actually, the capital divisions of most public defender offices are staffed by extremely good attorneys. No all understand you, Texas is still a notable exception I believe, but on the whole capital cases get extremely good quality representation.

        Two caveats – one, prosecutors tend to have more more resources at their disposal – the quality of the lawyers is only one element of that. Two, as near as I can tell, there seem to be more resources going towards appeals of death sentences than to the trial – yet, the grounds for challenging on appeal are more limited than the defenses available at trial. (I wonder too, if all states have capital divisions that service all their capital defendants. I do not know the answer there.)

        By the way, to the best of my knowledge, only one person has been conclusively established to have likely been innocent post mortem; although many have been while on death row.

        A better number might be those where its been shown there was not adequate evidence of guilt, rather than innocence. Regardless, this is not that surprising. People that investigate these things tend to focus on people that are not already dead. It might be better for the cause to focus on the already executed, but it would lead to more wrongful deaths.

        For what it is worth, I think state execution is always wrong, but that even if it could be justified in the abstract, the existing system is hopelessly flawed and the money wasted on it could be better spent either preventing murders or investigating the many murders that are never solved. It is meaningless symbolism that comes at a pretty serious material cost.

  22. Quebecois says:

    For the first time since I’ve been reading here, I can say that those who find the death penalty works on any level are being as irrational as teabaggers and ‘base’ republicans. I’m so surprised to see folks with brilliant minds who have abdicated to the notion of a barbarous, retrograde practice.

    And with the american judicial system run by a bunch of loyalist society thugs, do you believe that all those african-americans facing the death penalty deserve it???

    • bmaz says:

      So simply being against the death penalty is not good enough for you, you want to judge, from on high, others on why it is they are against it?

      • Quebecois says:

        That’s exactly why I never should write here, my written english never conveys my thought. Every research paper I’ve read on the death penalty points to it’s failure as anything else than revenge. I’m not, here to judge and I never mentioned those commentators that are are against it. As long as one is against the death penalty, I’m okay with that.

        I’ll go back to lurking

        • bmaz says:

          No, no, no. The discussion is healthy and your input is very valued. It is an emotionally charged subject; it is okay if people are a tad emotional. It is a discussion I wanted to have, and it is a good one to have every now and then. Not everybody has to agree with each other necessarily, but it is important for the different positions and facts to be aired. One of my issues really in putting the post up was wondering about the issue of method of execution (assuming it was going to be done in the first place); there seems to be a lot of outrage in the media (maybe more the “shock” I have seen from many teevee commentators) over the thought that it might happen by firing squad. I am with Box Turtle, no way is a perfect way; but all things considered, I might actually argue the firing squad is no worse, and arguably better than the alternatives.

          • DavidKaib says:

            I suspect there are two reasons for the focus on the method of execution. First, supporters of the death penalty who are not as confident in their position can talk about differences in method and even condemn a method as a way to feel better about supporting it in the abstract. Second, many opponents of the death penalty (and this is true for many progressive positions) prefer to make more limited arguments rather than state what their values are. I agree with you that we would be better off talking about the bigger questions here.

          • skdadl says:

            bmaz, to me, talking about the practicality of the death sentence is like talking about the efficacy of torture. It means that something has gone very very wrong with people’s understanding of enlightenment and democracy. Short of self-defence in a very immediate sense, none of us has any need or reason or right to kill anyone else. Punkt. For those who cannot be controlled any other way (because our brain science is still pretty primitive), there are the max prisons. Even there, people should be treated decently, by virtue of being animals born free.

            I understand the animal urge to vengeance — I’m sure we all do. One of the main drivers of modern European thought about democracy (C17-C18) was reflection on the revenge cycles, international and domestic, macro and micro, that had polluted European history up to then.

            Democracy runs on other basic questions too, but one of the questions that taught us how to re-create it was precisely that: How do we stop revenge cycles? One strategic decision was to prevent the justice system from being driven any longer by victims (or their survivors). Conceive of crime as a disruption in the social fabric rather than a personal offence, take the prosecution away from offended individuals, and you have a chance at fairness, justice, and the re-establishment of civil society, not to mention an end to revenge cycles. A broken-hearted individual might still want to kill the killer, but the rest of us saddened citizens still want to solve the problem by stopping the butchery, taking care of the broken-hearted, and locking up anyone who could be a danger to others. Why would we be mean and nasty enough to go further than that?

            I don’t think that Quebecois was trying to sit in judgement on anyone else, but I understand his distress. We live so close to the last Western nation that still executes people (the U.S.), that still has astonishing numbers of citizens in jail, and we have a small but dangerous political faction who would turn us into that if they could ever trick citizens into giving them a majority. Obama is just amoral. Harper has the potential to be something much worse.

              • skdadl says:

                You’re trying to make me laugh, bmaz. I should tell you that I spent Friday and Saturday struggling through a major case of food poisoning. I think I’m getting better now, but I have been better-humoured.

                And besides, I am a sweet li’l ole lady living on the north shore of Lake Ontario, so what would I know about penis enlargements? (I do know some very cute local cops.)

                • bmaz says:

                  Aye, but now you will be judging their ability to “protect and serve” a little differently! Sorry to hear about the bad vittles, that sucks.

            • Jeff Kaye says:

              The problem of revenge cycles goes to the very origins of Western thought, 2500 years ago in Aeschylus’s Oresteia.

              Athena was always my favorite god/goddess.

              We must not live by the lex talionis. That this still shapes our world, we have only to look at the number of prisoners turned over for a price to the U.S. in Afghanistan, in order to settle some dispute or wrong some clan or individual felt was made against them.

              We are can still see Clytemnestra and Agamemnon in their death embrace, and reflected in the mirror is not an ancient Greek king and queen, but our own doomed societal self-reflection.

  23. T-Bear says:

    The death penalty is obnoxious for all petty crimes up to and including murder; all too often strong emotions are involved to base the execution upon, life sentences are adequate and forestall retribution.

    There is an argument for the death penalty in two specific instances. One is for the acts of Treason including treachery, the betrayal of a commissioned trust. The other involves crimes committed in the obtaining, exercise, and maintenance of power contrary to law and custom. Only these two elements is there clear and factual evidence of conscious premeditation to usurp power or betray a given trust. Once the mind is bent to these ends, it can no longer be considered safe; once the herding dog has tasted blood … . Absolute power must be allowed only for specific goals and for limited time before it is recovered, either by surrender of the authority, or by extinction.

  24. Twain says:

    I’m not religious but I do take the words “Thou shalt not kill” very seriously. It doesn’t say “Thou shalt not kill “but”, “except”, “maybe”…. it’s a flat statement with no exceptions.

  25. boltbrain says:

    bmaz wins the argument just on costs.

    PAR4 loses on impracticality: a nation based on rule of law must manifest a high tolerance for lawyering.

    The cruel-and-unusual punishment argument flounders in the death penalty context: all of us are going to die and most of us after a whole bunch of unearned excess pain and suffering. The argument works fine for incarceration; there’s no sense in trending cons towards vengeance.

    China suggests a characteristically American route to getting at least the bulk of the “let ’em fry” fan base onside to eliminating the death penalty: just make the sources completely anonymous, and soon enough the crackers will demonstrating to avoid the possibility of being caught in the one percent rule.

  26. JohnLopresti says:

    There is a paragraph in the following linked review of a biographical film, which mentions the subject of the film was a judge caught in a **successful** recall campaign against three state supreme court justices in CA in 1987, mostly based on fear mongering modern American style by some Republicans in that region; the political subtext of the recall was the social argument about contemporary civilization*s version of catharsis. The common trait of each of the three recalled state sup ct justices: all were against capital punishment.

  27. tthoma81 says:

    I had no idea that it actually costs more money to execute death row immates than to keep them for life. I would like to see some sources for that.

  28. Margaret says:

    I’m frankly astonished at the amount of people who seem to believe that’s it’s okay to take somebody’s life, even though innocent people have been convicted and given the death penalty. DNA evidence has only been exonerating people for the last fifteen years or so. Are we expected to believe that everybody executed prior to 1995 was absolutely guilty or are we just ignoring them because that was in the before time? Again I say if you can’t give somebody LIFE when they deserve to live, what gives you the right to TAKE life when you THINK someone deserves to die? It’s barbaric and extreme and very conservative.

    • b2020 says:

      “if you can’t give somebody LIFE when they deserve to live, what gives you the right to TAKE life”

      I agree that there is asymmetry at the core of a principled (as opposed to convenience, cost, utility) objection to the death penalty. But you cannot take a hand if you cannot put it back, and you cannot give back the days and years taken by wrongful imprisonment. The asymmetry is that, to the wrongful dead, society cannot possibly atone.

      If that asymmetry is sufficient to oppose elective war, it should be sufficient to oppose captial punishment. If there was any principled case for capital punishment, cost, inconvenience, or lack of practical utility – such as lack of deterrence – should not prevent us from implementing it. Mankind pays for many foolish pursuits, at greater expense. But there is no case, and hence it is unnecessary to even debate its (lack of) secondary virtues.

      The death penalty does have that much in common with torture. A principled objection to torture is not based on the claim that “it does not work”. That is the choice Horton discusses here
      http://harpers.org/archive/2010/04/hbc-90006902

      To be human is not a perogative – you have to pay for it every day. If it was free, everybody would do it.

  29. Hugh says:

    After the Illinois experience with numerous death row inmate exonerations, I do not favor the death penalty.

    But I thought I would share a little something I wrote for an item from my Bush scandals list based on the SCOTUS case Baze v. Rees (2008) with a few emendations:

    Supreme Court decisions on the death penalty have not, let us say, been felicitous, which makes some of the key decisions cited even more bizarre. Wilkerson v. Utah (1878) the first death penalty case the Court heard sanctioned death by firing squad because it did not inflict “pain for the sake of pain.” Wilkerson was duly shot but apparently did not die immediately. (He was shot in the arm and let to bleed out over the course of several minutes.) So there was something lingering, indeed “something inhuman and barbarous” and “more than the mere extinguishment of life” about his death. Similarly, in Kemmler the first execution by electric chair, the Court upheld death by electrocution because it was created “in the effort to devise a more humane method of reaching the result.” It was in fact a sales gimmick by Thomas Edison to promote electricity (of the direct current kind). Kemmler (1890) was fried for 17 seconds. The smell was so bad that some of the witnesses had to leave. He was pronounced dead until someone noticed he was still breathing, at which point electricity was again applied. Louisiana Ex Rel. Francis v. Resweber (1947) is another case cited where the electric chair did not kill the prisoner. The execution was stopped and the case was appealed in part on 8th Amendment grounds. The Court held that mishaps don’t count and Francis was executed a second time. It came out later that the executioners at the first execution were drunk.

    You would think that this kind of judicial record would engender a certain humility, but you would be as wrong as this Supreme Court has been. What is at the heart of the current case Baze v. Rees is capital punishment involving a medical procedure performed by non-medical personnel with all the irreconcilable conflicts and questions that entails. The Court’s solution was not to confront this issue but to play doctor instead.

  30. Jeff Kaye says:

    I am against the death penalty for many, many reasons. One of them is that in a society based on significant inequalities, there is no way that justice can fairly administer such a terrible penalty. We know the death penalty historically in America has fallen much harder on African-Americans, for instance, than caucasians. I believe, even further, that the death penalty brutalizes the society that uses it. All punishments must be humane, because what finally matters is the signal sent to the people at large about the meaning of justice.

    OT, I’ve just published a big article over at Truthout that should interest many readers of this blog:

    Psychologists Notes May Indicate Zubaydah Torture Experimentation

    One interesting nugget found in newly released CIA documents related to the destruction of 92 torture tapes concerns the unreported existence of psychologist’s notes as a standard part of the interrogation protocol.

    In a “top secret” paper (undated) entitled “The CIA Interrogation of Abu Zubaydah, March 2001 – January 2003,” in a section that, though heavily redacted, describes the review of the tapes by a CIA attorney from the Office of General Counsel, “interrogation materials” are described as consisting of “videotapes, logbook, notebook, and psychologist’s notes.”

    Lots of goodies in the article, which builds upon Marcy’s work.

      • skdadl says:

        Have I ever told you that whenever I see a Khadr headline, my heartrate speeds up? It is so hard for me to believe that this continues, over eight years after a kid was tortured at Bagram. Here I was, about to write a post on the topic of vengefulness, and you put in front of me the topic that makes me feel most intensely vengeful.

      • Jeff Kaye says:

        Thanks, fatster. From the article:

        Defense lawyers say that during at least 142 interrogations at Bagram and Guantanamo, Khadr was beaten, doused in freezing water, spat on, chained in painful positions, forced to urinate on himself, terrorized by barking dogs, subjected to flashing lights and sleep deprivation and threatened with rape.

        Prosecutors contend Khadr was treated humanely and has fabricated the abuse allegations.

        That Obama’s military is using these military commissions trials to still cover-up abuses and crimes at Bagram and Guantanamo is unconscionable. And yet, will any journalist who covers the White House finally ask Obama about this at a news conference? Shame on the WH press corps, who have let the continuing cover-up of torture continue.

        • john in sacramento says:

          Shame on the WH press corps, who have let the continuing cover-up of torture continue.

          One minor edit

          Shame on the WH press corpse, who have let the continuing cover-up of torture continue.

          Corpse

          corpse
             /kɔrps/ [kawrps]
          –noun

          2. something no longer useful or viable: rusting corpses of old cars.
          3. Obsolete. a human or animal body, whether alive or dead.

          • Jeff Kaye says:

            Yes, it was a good comment. There is a direct line from revenge killings to the state’s operations of killing in war. But there are also some differences. The main point is that human beings become regressed in many ways, and when they do, they become capable of immense crimes. But when the state cold-bloodedly kills another human being, even via “due process”, there is a wide-scale kind of brutality that oppresses the human soul. Since war is usually introduced via some form of “legitimate” process, it too is horribly oppressive. But there are important differences between the soldier in the field and the officers who coolly issue the orders.

            I’m not sure if I’m explaining myself well. But Kubrick’s movie Paths of Glory describes what I’m trying to express.

            • Gitcheegumee says:

              Thanks for the reply….and might I add, an EVER WIDENING Scale kind of INCREASINGLY ACCEPTABLE brutality that oppresses the human soul?(The new normal?)

              FWIW, I just left a comment on your new thread.

            • fatster says:

              The law and the state. Very complicated issues. Once a long time ago, I did a little studying of the law, me to the work of the great (to me anyway) H.L.A. Hart, who was influenced by the venerable Jeremy Bentham (d. 1832) . A Utilitarian, Bentham formulated “the greatest happiness principle,” under which acts or policies should be aimed toward achieving the greatest good for the greatest number of people.” (He also had a replica of himself, built around his actual skeleton, encased at University College London and it has been wheeled out to attend the College Council, though it is recorded as “present but not voting”.) Bentham was very progressive for his time, very intellectually and ethically engaged. He did, btw, oppose the death penalty.

              John Austin (d. 1859) was one of Bentham’s students and studied law as science. In a nutshell, he argued that “might makes right”, that the law emanates from the Sovereign who enforces it using superior power–though Austin did recognize that the subjects gave that power to the Sovereign. Austin did not address implications of having as Sovereign the people themselves.

              H.L.A. Hart. (d. 1992) understood that “might makes right” was the underpinning of Austin’s model. Hart drew on the work of Bentham and so effectively propounded on the relationship between law and “morality” that homosexuality in the UK was decriminalized as a result of his work. Hart continued where Austin did not go, by arguing that when the people are Sovereign, then the laws and punishments created by those chosen to represent The People apply to themselves as well as to those they represent (perhaps we should remind many denizens of Washington, DC, of this concept). Also, Hart argued, the rules. and penalties established by law should be clear to all (a counter-instance would be secret EOs, etc.), and he went to considerable lengths to define and defend law and consequences against retributive thinking..

              Don’t know how well I’ve summarized the above, since my memory is rusty, but in reflecting on H.L.A. Hart, I am further stunned at how far we’ve gone in very recent times toward distorting and actually overturning almost 200 years of effort aimed toward making the law a vibrant and enduring part of our lives.

              • burnt says:

                Bentham is an interesting character with respect to this post and the commentary because of his interest in justice, punishment, and prisons. His Panopticon and the psychological effects he hoped to produce with it were way ahead of his time. Thanks for bringing that up.

                Poor Mr. Bentham. The students at University College London have demonstrated no respect for his head. I’ll leave it as an exercise of the reader to discover what sort of pranks have been perpetrated upon it.

                • fatster says:

                  Oh, thanks so much for letting me know you share my enjoyment and appreciation of Bentham, as I figured I’d probably bored everyone here. He was quite a character.

  31. NonCompassionateLiberal says:

    For the state to save money on non-capital cases, the death penalty should be optional for convicts. If I were sentenced to life imprisonment for serial jaywalking, let’s say, and I knew I’d be bored outta-my-mind, I might choose death and it’d be a win-win situation for me and the state. No joke.

  32. Quebecois says:

    I’ll put my anti death penalty spiel on the side for now. Thanks.

    The law is giving a choice to the guy, his decision is fine by moi. Amazing, just writing the preceding phrase went against every fiber of my body. Arguing any point in a purely legalistic fashion is impossible, I would have been a crappy lawyer.

    The media is making money off of another polarizing issue that defines the States.

  33. DWBartoo says:

    The only life any of us have a “right’ to end … is our own.

    Everything else is presumptive nonsense.

    Hemlock, anyone?

    DW

  34. john in sacramento says:

    Even though I’ve disagreed many times with the Democratic Party … and I’ve said so. At last weeks CDP convention the delegates actually did something unrightwingish and contrarian to the actions of the politicians; they supported an end to the death penalty in California.

    Here’s part of an email from my friend Christine who’s on the platform committee, she’s also a paralegal who works on DP cases for the Public Defender’s office, and won an award presented to her recently by Mike Farrell and Death Penalty Focus (this Mike Farrell)

    In an amazing culmination of the hard work of so many, from the podium of the 2010 California Democratic Party Convention came highlights of the changes and additions to the Platform of the CDP: “The California Democratic Party believes in the human rights of all people, and has taken a position opposing the death penalty in this year’s platform,” which was met with resounding applause by attendees/delegates.

    Under the guidance of Chairman John Burton, the California Democratic Party’s two-year Platform of 2010 took on many progressive improvements, of which the Criminal Justice Plank led the way and addressed not only support to end the death penalty, but support to end juvenile life without parole sentences (JLWOP), support for non-partisan sentencing commissions, support for increasing high school graduation rates which correlates to direct drops in homicide and violent crime rates, support to reduce prison overcrowding, opposition to prison privatization, and support to reform three strikes/Proposition 13. [see complete 2010 Criminal Justice Plank Platform at end of e-mail]

    I want to thank all of you who took part in public information events, writing and testifying at regional Platform Committee hearings, and keeping opposition to the death penalty front and center in newspapers throughout the State of California. You have been the movement, and we would not have this accomplishment of moving the largest block of the country’s largest political party to have the courage to take a stand against the death penalty without you.

    […]

  35. Theater403 says:

    while there is at last substantive back and forth here over this I think one gets a bit sidetracked on legalisms. There must be a principle regarding respect for the life of a being.

    It seems that we see arguments here about “a just execution”. There is no such thing. Now, finding a person guilty of a “capital offense” I suppose you might offer as an option assisted suicide instead of life in prison. But actual agency in the killing of another excepting self-defense against imminent mortal peril is a moral wrong. I will take a stand and say you are committing an immoral act, or are complicit in such, if you believe otherwise. I don’t have to stand “on high” to do it. I have to stand on principle.

    I have not seen any rational argument here to make a case for the death penalty in any circumstance.

    • bmaz says:

      Well that is right nice of you; thanks for your moral absolutism, preaching and superiority. By the way, the standing statutory law in the United States as reviewed and approved by the Supreme Court is NOT a fucking “legalism”. I will “take a stand” and say you can stick your mandated moralism somewhere uncomfortable; this is a discussion forum, not your private pulpit to talk and look down on others from.

      • Theater403 says:

        good gravy, that’s a right aggressive attack…it is this kind of discussion that seeks permissibilities. It is not a “non-discussion” point to make a stand and say to you, to anyone–what are your moral arguments that allow you or the state to take a life? You have not presented any. This is not preaching or a superior attitude. Are no positions absolute? I have offered an exception to the moral restriction. What have you offered here besides a very strong attitude. I’m not sure what “mandated moralism” is. Do you not believe in morality? And why would a Supreme Court decision matter more to me than a position that is morally correct?

        • bmaz says:

          Well, what I believe in is, first and foremost, the rule of law. The death penalty is currently within that; so that is how I evaluate it. I am against the death penalty and wish it were not the law in the US; having somebody who agrees with said proposition, tell me my reasoning, in reaching the same conclusion they have, is not good enough and is immoral kind of does not sit real well. All for what it is worth.

          • Theater403 says:

            Well, sorry for that, but I think your opposition was only economical…this simply means that if it was less costly to execute people you’d be a proponent. That is troubling.

            There are primarily two philosophical perspectives: 1. (as you note) an absolute rejection or 2. a utilitarian approach.

            The calculations that must be done to make the utilitarian approach tenable are complex and messy and open to way too many “interpretations” to say the least.

            The rule of law may often be morally corrupt as it serves the interests of the state as an entity as often as it protects the state’s citizens.

            The only unambiguous position is an absolute rejection.

            • bmaz says:

              Heh, well, fair enough. But I work within the system we are discussing and it turns out moral absolutes really don’t count for squat and, in fact, are relatively unpersuasive in the forums and constructs that count for your clients. Morals are worth no more, nor no less, than the extent to which the relevant society actually believes and adheres to them. That said, there are some defendants (and I will not necessarily eliminate a couple I am familiar with) who, if they have been given every inch and benefit of appropriate due process and fundamental fairness at every level and moment, and who have conceded, at some material point, their guilt, I am not sure I have any objection to receiving whatever maximum punishment is available under the law. For a variety of inseparable reasons, I do not think the death penalty should be the maximum punishment under the law – I think it should be life without parole or release – but if death is the maximum and a legally constituted jury of citizen peers so declares, and appellate courts uphold on a fair and compelling record, then so be it. To be honest, if after the requirements of due process have been scrupulously adhered to, if the germane government entity puts Jeffrey Dahmer Dennis Rader (BTK Killer) or the Hillside Strangler (actually two separate men – cousins I think) or Ted Bundy to death, well, I will not lose much sleep. I wish for a more enlightened system; but if that is the one we have and the down and dirty facts and due process are in, okay heave ho.

              • Theater403 says:

                I do appreciate the considered response as well as the fact that one must work within the relevant legal parameters.

                This does not preclude one from taking a morally and philosophically consistent position.

                While one can easily choose among heinous madmen to use as examples of those who would seem to be unworthy of continued life this still leaves us with the question of state-sponsored murder and a complicit community.

                However, this is not such a surprise coming from the USA. We are an aggressor nation with no compunctions about murder and torture…why should we assume our Federal law would be any less murderous?

                It is amazing to me the lack of respect this country has for living beings of all types. Executions are but one example of this.

                • bmaz says:

                  Life on the planet earth is a fairly transient concept. Selection happens every minute of every day at all level of the phylogenetic spectrum.

                  • Jeff Kaye says:

                    Darwin was a pretty gentle soul, for all that. When Huxley considered evolutionary ethics at the close of the 19th century, he was right that nature does not give us a model of human ethics. We are alone in the universe and must choose our ethics and morals, as beyond a crucial point (given us via phylogenetic inheritance — our social instincts) we have only what is human that to guide us. (Same lesson as in Shakespeare’s Tempest)

                    I got a kick out of reading the back and forth of you and Theater403, as the underlying subtext is that you are about one of the most ethical and moral people in this country. And Theater403 sounds like a righteous person, too.

                    One can despair over the senselessness of life, but tonight, I’m enjoying a nice glass of wine, and the glow of decency emanates like a penumbra around the object world that surround me.

                    • skdadl says:

                      Darwin was a pretty gentle soul, for all that. When Huxley considered evolutionary ethics at the close of the 19th century, he was right that nature does not give us a model of human ethics. We are alone in the universe and must choose our ethics and morals, as beyond a crucial point (given us via phylogenetic inheritance — our social instincts) we have only what is human that to guide us. (Same lesson as in Shakespeare’s Tempest)

                      Y’know, I knew that bmaz was reminding me of someone yesterday. Prospero! But of course! (I tend to find Prospero funnier than many directors and actors and critics do — I mean, he does get cranky and fussy about having too many projects to keep up with, too many cats to herd; when are all these projects going to draw to a head, mutter mutter … *wink* )

                      It may be true of equality and fraternity that we have only what is human — what we can reason through — to guide us, but I do not believe that that is entirely true of the first of the great democratic principles, liberty.

                      I’m very interested in the Benthamite discussion above as well, and it’s good to know that utilitarians can be ethical, but me, I’m staying anchored back in the C17-C18, with Rousseau (and also, I think, with Shakespeare) on the primacy of liberty, which is an animal impulse. If I start to talk about it in Rousseau or in my own thoughts, I’ll start sounding mystical, but I think it does connect us to much more than our own thinly reasoning brains.

                      Caliban gets the best speech in the play, eh?

                      Be not afeard; the isle is full of noises,
                      Sounds, and sweet airs, that give delight and hurt not.
                      Sometimes a thousand twangling instruments
                      Will hum about mine ears; and sometime voices
                      That, if I then had waked after long sleep,
                      Will make me sleep again; and then in dreaming,
                      The clouds methought would open, and show riches
                      Ready to drop upon me, that when I waked
                      I cried to dream again.

                      III.ii.

                    • b2020 says:

                      “primacy of liberty, which is an animal impulse”

                      I quibble. If we define (out of necessity, not because there is a clear line) animal (as opposed to human) to be intelligence with no/almost none/markedly less sentience/consciousness, then animal impulses are oblivious to any notion of “true” liberty. Animals are confined only when confinement keeps them from running “their program”. The human definition of liberty often seems to be based on the notion that we do not have a program, or could set aside all restraints on our imperious will – creating, as it happens, our own reality.

                      Yet, both animal and human impulse, if unchecked, would run amok to the point of habitat collapse and extinction (our corrosive oxygen atmosphere came about by global pollution from early life, which became largely extinct in the process, and we are closing the circle as we entering the mass exctinctions of the antropocene).

                      But humans, unlike animals, have the theoretical ability to reason their way through the contradiction between their own wiring (shaped by millions of years of evolution in environments that have increasingly less in common with the habitat called “civilization”) and the necessities of sustainable survival.

                      Animals, not burdened by reason and “free will”, in some ways enjoy more liberty to be “all they can be” and do what they evolved to do. Humans, however, cognizant (in theory) of the consequences of their actions, and (in theory) able to overcome their self-defeating impulses, only have the liberty to not exercise their freedom.

                      In the 80’s and 90’s, there were some efforts to ground ethics in biological realities – loosely based on the concept of evolutionary stable strategies, deriving ethical requirements from the primacy of sustainability. I remember the analogy that, just as our eyes are shaped by the laws of optics, that our reasoning should be shaped by the laws governing survival – even if our brains are imperfect, our collective reasoning could eventually transcend our cognitive defect. Make of that what you will, but the concept of evolutionary stable structures has direct application to the concept of stable, open society: Too Big Too Govern (legislate, regulate, fail).

                      As for liberty, I am not much into Hegel, but his verdict that “freedom is the appreciation of necessity” certainly cuts to the heart of the matter. Here is a more dramatic take on it:

                      “If you withdraw your hand from the box you die. This is the only rule. Keep your hand in the box and live. Withdraw it and die.”
                      “What’s in the box?”
                      “Pain.”
                      “Why are you doing this?”
                      “To determine if you’re human.”

                      Ignorance is freedom. To know is to loose your freedom. I sympathize with your desire to call liberty the first among equals, but really, whatever liberty we are free to exercise is the result of equality and fraternity. That, in a way, is the Libertarian Fallacy – that liberty is seen as the cause, and not the result, and that liberty is the prerequisite for everything else.

                      Every human is born into the bondage of his or her own flesh, into the cage of time and location, held by the chain of his or her DNA. There is no liberty unless we make it, and we will have to refuse from exercising our animal impulses to make it happen.

                      Capital punishment is the attempt to preserve, through many costly contortions, our “liberty” to kill those we find offensive. No wonder it is prohibitely expensive as “civilization” progresses in spurts and fits. It is the domestic mirror image of the equally incoherent attempt to retain the “liberty” to impose our collective will on “the others” beyond our borders by constraining their freedom of choice to “obey or die”, and is no surprise the costs scale badly with the number of executions required to allow us to retain that illusion.

                      Liberty is the perogative of gods. The rest of us have to work hard for it.

                    • skdadl says:

                      Oh, I agree with you (mostly, I think). I am not a libertarian and I’m sorry if I left that impression, if we’re talking libertarian in the McVeigh sense. Rousseau of course wasn’t either. I figure he was thinking very hard all the time about what the basic principles would have to be that would permit us to stand each other enough to live together, while preserving the maximum of freedom for dyspeptic cranky hermit types like him (or me). I further figure that it is from that running meditation that wasn’t only his, that was at least a couple of centuries long by then, that your Bill of Rights and the French Declaration emerged. I mean, plough through enough Enlightenment texts, and the Bill of Rights looks like land! I see land! Y’all should be very proud of it.

                      I am always moved, though, that Rousseau emits those cries in praise of liberty.

                    • Theater403 says:

                      That was nice. I have spent the majority of my life simply going with the flow around me. Not being righteous in any conscious way; but not being intentionally harmful to be sure. However, there came a time when I decided I should take real responsibility for all my actions and that I should be cognizant of why I do what I do. I am trying now, as late in the day as it is, to find my way to some very considered ethical positions. It is, at the very least, an attempt to realize as much of my mental capacity as a I can and in this way become competent as a self-aware being.

                      Thanks.

                    • bmaz says:

                      Well, and thank you too; all in all, I think it settled in to a very good discussion. You will find a lot of those here; please ante in more often.

                • Leen says:

                  “However, this is not such a surprise coming from the USA. We are an aggressor nation with no compunctions about murder and torture…why should we assume our Federal law would be any less murderous?

                  It is amazing to me the lack of respect this country has for living beings of all types. Executions are but one example of this.”

                  Totally agree. The Obama administration and the majority of Americans are happy to roll over the dead bodies in Iraq that are a direct result of our invasion of that country. We are indeed an “aggressor nation with no compuctions about murder and torture” The only time we hear screaming is when it is Americans dying or deaths or human rights abuses in other countries benefit our agenda. Then we are all about human rights issues.

    • qweryous says:

      More apologies from me too.

      Just getting ready to post that ;)

      Scenario:

      “Last week the high court heard details of torture allegedly suffered by prisoners handed over to the Afghan domestic security service. A memo, seen by the Observer, reveals that the head of Afghanistan’s intelligence agency indicated to UK officials in March 2007 that he was aware of ill-treatment claims involving prisoners.” Bold added.

      Details:

      The court heard how six Afghan detainees – Taliban suspects – handed over by British troops to NDS prisons were allegedly deprived of sleep, whipped with rubber cables and subjected to electric shocks. Backed by law firm Public Interest Lawyers, Evans argues Britain has breached the Human Rights Act by handing over prisoners to a country known to participate in torture. The lawyers claim the NDS had a notorious reputation for mistreating prisoners and British officers should have known of the risks.” Bold added.

      Leading to apparent admission:

      The judicial review heard the government concede that British forces had maintained access into the NDS facility for UK interrogators, suggesting a close intelligence relationship with the Afghans. The judges also heard claims that government denials of such detainee abuse involving British forces were the result of a “head in the sand” attitude.” Bold added.

      Full story at : http://www.guardian.co.uk/world/2010/apr/25/afghan-mi5-prisoners-tortured

      H/t to Rawstory where I saw the link.

  36. b2020 says:

    Did somebody say “fallibility”?

    Any punishment is, to some extent, irreversible – jail, esp. in Supermax, is just death penalty in daily installments – but society can try to atone for any wrongly administered punishment short of death.

    The death penalty has to unfortunate implication that the rule of law as administered by fallible (and quite corrupt) human beings is as infallible as the judgement of the pope.

    Philosophically speaking, that’s one bad neighborhood.

    At the other end of town, I am not quite sure what the founders were smoking when they conceived jury nullification w/o prohibiting capital punishment. I cannot quite see this as philosophically consistent either.

      • BoxTurtle says:

        Looks like we finally got to where Jefferson wanted to go, but it took 200 years. Currently, death can only be applied to treason and some murders.

        Thanks for that link, most interesting. I hadn’t stumbled on that site before, I think I’ll take a wander around.

        Boxturtle (not all who wander are lost)

        • fatster says:

          If you’ll pardon me (no pun intended) for offering unsolicited advice, I urge you to bookmark the site. There are all kinds of supposed quotations from Jefferson floating around, and the librarians at the (virtual) Jefferson Library, UVA, have been most helpful to me when I’ve been trying to ferret out suspicious ones (all of which, btw, were indeed spurious).

      • b2020 says:

        Interesting, thanks for this. I always thought that being unable to separate revenge – punishment – from the functional aspect of problem solving burdens the law. It is much easier to make the case that a person deemed incapable of self-control and considered likely to harm others be kept separate from society if, by taking custody, society also takes responsibility for providing safety and dignity.

        To wit:
        http://agonist.org/cliff_schecter/20100422/time_to_put_an_end_the_disgrace_of_prison_rape

        If a society is unwilling or unable to guarantee the safety of its prisoners, does it not loose the moral right to keep prisoners in the first place?

        • fatster says:

          I don’t wish to engage in a conversation about “the moral right to keep prisoners”, but the state of some prisons and other places of involuntary confinement in this country is appalling, creating a hell-hole where those who must be kept separate are turned loose on each other. We can and must do better. Why don’t we?

          Sigh.

    • skdadl says:

      Gosh. A celebrity prosecutor along for the ride. Swimming pools, movie stars, Esquire magazine …

      He’s going to be filling the reporters in? As well as your Rosenberg, there is a small posse of extremely well informed reporters from here going down to that trial. I doubt there’s anything Iglesias can tell Michelle Shepherd of the TStar, eg, unless he’s free to divulge DoD secrets, and I doubt he is. He could probably learn a lot from her, though.

      Do we know whether Joshua Claus has been summoned as a witness? You know, the interrogator who went to prison for killing Dilawar? Who was Khadr’s main interrogator at Bagram? Could someone ask Iglesias that question?

      • bmaz says:

        But, but, did you know he was at Guantanamo before to film a movie??? I just put a post up on this and would dearly love for the fine folks from the land up north, and all those who have followed the Khadr case (Mary, I am looking at you) to let loose.

  37. worldwidehappiness says:

    The death penalty issue relates to our view of humankind. Is humankind fundamentally good or bad?

    People who want the death penalty are focussed on punishing our lower instincts, and see human beings as fundamentally bad.

    People who don’t want the death penalty are focussed on our higher instincts, and see human beings as fundamentally good.

    Focussing on lower instincts is de-evolutionary. Focussing on our higher instincts is evolutionary.

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