Thursday, June 26, 2008

Keeping Murder Maximum

My views on the death penalty might be described as the opposite of Feddie's: I don't have an inherent objection to it, but my observation on how it's applied in America makes me skeptical that it can ever be carried in a manner consistent with our standards of justice and due process. Certainly, it isn't being done so now, and so for the time being I don't support the death penalty as a general rule.

Thinking about child rape specifically (since the Supreme Court just outlawed the use of the death penalty in such cases), I think my intuition is the same: troubles with the death penalty as applied notwithstanding, I don't have any intrinsic reason why child rape is not worthy of capital punishment. But on that score, Matt Yglesias makes a good point:
You want to make it the case that no matter what terrible things a criminal has done, he would get an even worse penalty if he killed the victim/witness. Getting bogged down into a debate over the relative heinousness of various crimes is a bit of a red herring -- there's an internal logic to the deterrent system that requires murder to carry a unique and maximally severe penalty.

A good (if not necessarily constitutionally-manifest) point.


Anonymous said...

Ah, yes! Here via Planet Carleton (although I met you... on my last night on campus this year... drunkenly in Basil's) after attempting to make similar claims (though without your brevity) on my blog.

What you said. I'm not for the death penalty, but its application doesn't seem to be coherent with other principles of "justice" for these justices.

I also read a great Lithwick piece comparing Kennedy's lack of child witnesses with the lack of women's decisions in Gonzales--- perhaps that's a tangent, but it was still an interesting claim, again along the lines of "I like where you conclude, but..."

schiller1979 said...

David, I agree with you on the death penalty. It seems to me that there are two related, but somewhat separate, arguments about its being inconsistent with our standards of justice and due process. The first is that it's applied disproportionately to minorities. I don't disagree with that, but I don't think the debate needs to go that far, because it's preempted by the point that, as a practical matter, it just doesn't work.

We've set higher standards for due process in recent years. One effect (unfortunate, but inevitable) has been to make the trial and appeals process last longer. In one much-discussed case here in Pennsylvania, a man convicted of killing a policeman 27 years ago is still on death row. How can the death penalty be said to be effective, if the convicted person lives for another 27 years (and counting)?

William McKinley was shot on Sept. 6, 1901. He died on Sept. 14, 1901. Leon Czolgosz was executed for the murder on October 29, 1901. Nowadays, the trial would not have been anywhere near ready to begin within that time frame. Not that I'm advocating that sort of rough-and-ready justice, but it would need to be somewhat closer to that time frame than 27 years, if the death penalty is to be considered feasible.

PG said...

We are appropriately more concerned about certitude when the death penalty is involved because it would be so awful to execute someone who did not actually commit the crime. The almost inevitable result of the demand for more certainty is a longer appeals process. I say "almost" because I think that if we continue to have a death penalty, we should start limiting when prosecutors can ask for it. For example, prosecutors cannot ask the jury to sentence the defendant to prosecution in cases where there is no DNA nor fingerprint evidence, and the case rests on eyewitness identification and/or a claimed confession that the defendant now repudiates. When you look at the Innocence Project's records, the majority of wrongful convictions involved eyewitness misidentifications and false confessions. There certainly are several instances of forensic science misconduct as well, but if we guaranteed funding for defendants to obtain independent DNA testing, they might be able to avoid some of that.

Personally, I think improving the death penalty to the point that it will be perfect is impossible. At the same time, most Americans are unwilling to relinquish the death penalty as a punishment. Limiting the cases in which it is an option to those where evidence is on firmer ground might increase its certitude in two ways: 1) that we have the right guy; 2) that he will be executed within a few years of his first conviction.

schiller1979 said...

PG, I don't think it would be right if we execute a murderer because he was careless enough to allow DNA evidence to be found, while we sentence a more careful murderer, who committed an equally heinous crime, to life.

Your comment about perfection is interesting. It can get frustrating when the judicial process gets bogged down with perfectionist tendencies. But to use a baseball analogy (and, as one friend of mine likes to say, "life is a good metaphor for baseball") conservatives say that umpires shouldn't have access to instant replay, because they get most of the calls right, and they're only human. But it does no good to a criminal defendant if the system gets the call right, say, 98% of the time, if he's one of the 2% who's wrongly convicted. And I think it's pretty horrible to be wrongly imprisoned, although I agree that the standard of care needs to be higher in capital cases. So I think the criminal justice system needs to err a bit on the side of perfectionism.