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April 03, 2008

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Assisted suicide for inmates? Why does that conjure up images of sadistic guards trying to "persuade" prisoners to take that option, right-wingers beating the drum that prisoners have a "moral duty" to save the taxpayer money etc.?
Bad idea!

Hartmut: Assisted suicide for inmates? Why does that conjure up images of sadistic guards trying to "persuade" prisoners to take that option, right-wingers beating the drum that prisoners have a "moral duty" to save the taxpayer money etc.?
Bad idea!

Well, yeah.

GNZ: However I'm surprised by why you would think juries would have less false convictions.

The notion that the introduction of a jury of your peers will somehow make it more likely that you will be falsely convicted goes against centuries of practical jurisprudence: but it does correspond strongly to the conservative belief that the 12-15 members of the jury, ordinary people weighing the evidence, are just ignorant asses who ought not to be allowed in court and the only proper person to decide if you are guilty or innocent is a judge.

I take your point that there exist instances where there is 100% certainty of guilt. But I'd be against introducing the principle that it's okay to kill people when you have 100% certainty that they murdered someone, just as I am against introducing the principle that it's okay to torture someone when you have 100% certainty that they're a terrorist.

For a whole bunch of the same reasons: one of which is, if you allow the principle of killing by the state, it tends to spread. You may intend that the state shall only kill when there's 100% certainty, but what actual practice has shown is that, if the state has the right to kill, the right to kill will spread... and yes, the state will then kill innocent people.

In Germany there is an option for a mixture of jury and judge based jurisduction, called the Schöffengericht. Citizens can be called up to do Schöffen duty similar to jury duty in states with the Anglosaxon system. They then act as co-judges to the professional ones and can (though they rarely do) outvote them. This is limited to the lower courts, the higher are professionals only.
I think the main difference between the "continental" and "anglosaxon" way is that their is no or not much profit in the outcome here, while "winning" is the main thing at least in the US. Prosecutors or judges with open political ambition are not popular here and to boast to be skilled enough to "win" indpendent of the merit of the case would put a damper on your career. If a prosecutor is seen as a loser because he could not persuade the jury to hang an innocent then the system seems slightly flawed. A pure judge-based system is of course no panacea and not free from external influences (Judges in Northern Germany tend to be much more liberal than their Southern counterparts and perverion of the course of justice does happen occasionally).

We can nip part of this back-and-forth between Jes and GNZ in the bud right quick. (A back-and-forth in which I note I almost wholly support Jes's argument and position if not her reasoning.)

GNZ, Here is a link to The Innocence Project. here is a list of the 215 people they've gotten exonerated and released from prison on the basis of DNA evidence.

If you can find me one -- ONE -- who says he'd rather be dead today than out of prison and vindicated, I will donate $100 to the charity of your choice. If you can find one who says that he would rather have died at some point along his prison stay than fight for his life and freedom, I'll give $25.

If you cannot, you will donate $100 to the Innocence Project.

You game? Because if not, I think we can both agree that you're pretty much talking out of your butt, here.

In the UK, defense lawyers are the ones who will get kudos and a good name for winning a case, or at least for presenting as good a defense as possible. A murder case would certainly get a good defense lawyer - but then: homicide is far less common in the UK.

Jes, I think we could solve a lot of my country's justice system problems if public defenders' offices around the nation were at least as well-funded as prosecutors' offices are. Which, really, they should be, particularly given that the Constitution outlines a whole lot of rights for criminal defendants and none for prosecutors. Correcting that imbalance alone would be an enormous paradigm shift. But selling it in this culture would be practically impossible.

" A mistake like using juries causes problems all over the justice chain.

Damn that pesky Constitution!"

Appealing to the Constitution? Perhaps the 8th amendment (or maybe equal protection) has expanded enough to invalidate the right to jury trial. In fact I'm absolutely certain that modern equal protection arguments could easily be argued in that direction--it can be demonstrably proven that juries have not offered equal outcomes for various citizens on all sorts of analytic dimensions (race, class, gender) with at least some of those being specially protected under current equal protection jurisprudence (race, gender). Just use all the special equal protection buzz phrases: jury trials have tended to enforce prejudice against discrete and insular minorities (check), it has tended to seriously curtail the operation of those political processes ordinarily to be relied upon to protect minorities (check), and which may call for for a correspondingly more searching judicial inquiry (clearly check, a judge would be writing the opinion). Then throw in the changing social mores concept from the 8th amendment cases (ambiguous phrases can't be tied to their historical applications and understandings) and we could come with a brief that follows all the liberal jurisprudence forms and catch phrases to show that the Constitution forbids jury trials.

And I haven't even started talking about the due process clause.

Changing societal mores means that Constitution forbids jury trials anyone?

Also please note that the argument does not depend on disparate impact, it can merely have evidentiary value in this case, the impact itself doesn't need to be determinative.

Jesurgislac: "Killing people just because some ignorant people think that killing is a "deterrent" is about as wrong as allowing human sacrifice for religious purposes."

Well, it's a deterrent to additional jailhouse murders and assaults. If you're dead, you can't kill your cellmate, or another prisoner in the exercise yard, or beat in a guard's brain with a hammer.

Some killers deserve to die. Serial killers, spree-murderers, child-rapist-murderers, Democratic Party Chairmen (ok - I'll settle for public floggings). What practical purpose does it serve society to keep those kinds of deviate dickheads alive? It's simply moral triage of the worst kind to incarcerate them for life at public expense as inhabitants of moral-zoos where we can point at each cage and say: see how civilized we are, even scumbags like Charles Manson, Gary Ridgway (murdered 48 young runaways and prostitutes), Charles Cullen (the male nurse who 'disposed' of 29 ill patients under his care in New Jersey and Pennsylvania) are fed and clothed and barbered and have access to better health care then the multitudes of uninsured whose taxes help pay for every breath the privileged incarcerated killers take.

In California it costs about 200-grand a year to incarcerate a prisoner. It makes more moral sense to snuff out sociopathic killers and use the money saved to feed the hungry and house the homeless.

phil: "We have a system in which doctors, who take an oath to save lives, are asked to inject deadly chemicals into the veins of prisoners, violating any coherent sense of ethics."

We can solve the doctor-ethics issue by turning over the job of performing lethal injections to 'trustee' prisoners (with the large dug-user population now incarcerated, that won't be a problem). Plus, it will save us a few bucks in taxpayer money (those doctors get a nice per-diem payout on execution day, and a 'penny save' is a penny earned).

Why waste money on those chemicals? One could simply not provide the person with food, water or air, dependent on the time interval morally acceptable. That would even save some extra money. Throwing them off the roof would be inadvisable beacuse of the necessary cleaning costs. Other money saving plans: Let them dig their own graves and then beat each other to death. The last one has to fill up the other graves and then dig himself in or has to wait for the next executee.
Any more nice ideas?
I feel the urge to violate the posting rules by using vice-presidential language.

What practical purpose does it serve society to keep those kinds of deviate dickheads alive?

Good luck setting up a system where the "worst of the worst" alone are executed and executed in a non-arbitrary fashion.

This is useful, since -- I know the quote being responded to invited this sort of thing -- quite often this "extreme case scenario" is an argument for some policy (say torture or censorship) that simply won't be cabined in real life.

Likewise, some do think "dickheads" have some right to life, especially when they commit their crimes say in their 20s and might have some productive role to play or something sometime in the future. This often is based on moral and/or religious based sentiments, though the abolitionist side is at times smeared as atheistic amoralist sorts.

The part about letting the inmates run the asylum, so to speak, tends to cause problems, besides being sorta illegal. Sherry Colb had an interesting essay about the lethal injection case last week over at Findlaw though.

joe: "Likewise, some do think "dickheads" have some right to life, especially when they commit their crimes say in their 20s and might have some productive role to play or something sometime in the future."

You mean something like the "Dirty-Dozen" reduex? Where we recruit a hardened group of sadistic killers from death-row and drop them into Al Queda territory in Pakistan, and let them do their stuff?

Aside from that, how productive a role in society can you reasonably expect from murderers sentenced to life terms? That they'll tuck in their bed sheets and promise to abstain from raping their cell-mates doesn't seem like much of a benefit for $200,000 a year to guard society from a 20 year old spree-killer who lives to the age of 90.

Just my cynical 2-cents worth, but it seems a hundred times more 'humane' to execute him, and use that money to buy teddy-bears and chocolate bars for children victimized by child-abusers.

Hartmut: Any more nice ideas?

It's Jay Jerome, I'm sure he has a a whole stinking barrelful.

Hartmut: "Throwing them off the roof would be inadvisable beacuse of the necessary cleaning costs."

Not that expensive, Hartmut -- just put down a plastic drop cloth first.

Better, we could turn it into a reality TV show: "American Execution!" Now there's a good idea! Competing teams could be assigned to toss multiple convicted murderers as far off a roof as possible -- with points given for length and arc of distance thrown.

Each week, the Team would go to a different prison, and there'd be lots of back-story biographical info on the participants, on the killer, and on his victims -- and if the show's a success the prisons and the families of the murder victims would share in the advertising revenues and residuals.

This sounds viable, Hartmut. I'll pitch it to Simon Fuller next week. And if there's any interest, We can share executive co-producing credit.

Keep your fingers crossed...


Jesurgislac: "It's Jay Jerome, I'm sure he has a a whole stinking barrelful."

Now, now... be a good little 'whatever' and don't forget the 'courtesy' rule...

hi publius,

I'd like to hear how in the absence of Theory, you'd think about judicial accountability, especially toward those parties who in past have lost.

Jay, the posting rules permit me to say that I think the ideas you have posted here stink.

Late, I know, but the thread didn't really address it per se ...

The "sly" bit about Orin Kerr. A comment or two over at Balkinization dealt with this, but this perhaps gives him a bit more credit than he deserves. "Snidely" seems better.

I am unsure what exactly about Balkin's theory opens up it to the Yoo memo jab per se. I admit I find Balkin's theorizing on his theory here far from fascinating -- just yet another take on "originalism" or whatever that at some point seems like angels dancing on pins.

[does provide a chance for intellect sorts to talk past each other, usually saying the same thing a lot (oh, another dig at Roe! well Publius won't disagree there!) ... there are worse ways to spend time, but honestly, it is a bit like intellectual crack after a while]

But, the fact something is "lawyerly" is not exactly enough to meet Balkin's guidelines. Balkin requires good legal reasoning too. So, what exactly about Balkin's theories per se (the bad reasoning can twist any number of interpretative paths its way) warrants the gib?

Thus, OK's comment seems like a cheap shot.

"Balkin requires good legal reasoning too."

Not particularly because in his theory 'good legal reasoning' is determined almost entirely after the fact (you can't tell before the Supreme Court rules what good legal reasoning is). So when you say that it requires good legal reasoning too, you aren't telling us what that is.

The idea(s) do(es) not only stink they are also anything but new. There are demands for executions on TV (and/or in public with TV coverage)*. "People's justice" is not new either.

*The removal of executions from the public and moving them behind prison walls was extremly unpopular in the past and even seen as an infringement on a sacred right (for details see: Rituals of Retribution : capital punishment in Germany 1600-1987, New York : Oxford University Press, 1996. by Richard J. Evans)

Hartmut: The idea(s) do(es) not only stink they are also anything but new.

Well, yes. But do the posting rules permit me to discuss why I'm not prepared to engage in discussion with JJ where I am with GNZ or Sebastian?

Depends on whether you are able to control your emotions while doing it (I have refrained from putting some of my own thoughts in print because they would have crossed the line).
I think some of JJ's remarks were so over the top that I would have considered them satire, if there was not evidence to the contrary. While e.g. Brett can get on my nerves occasionally (and so do you btw) it rarely causes blind rage, just desperation for having the same thing fought over again and again without many new arguments. There are people here where the area of agreement is extremly low but without me thinking them being vile, dishonest etc. (I hope the same is true in reverse). On the other hand there are some people, where I can only pity those that have to do with them in real life ("a bunch of mindless jerks who'll be the first against the wall when the revolution comes." to quote a famous writer) .

> The notion that the introduction of a jury of your peers will somehow make it more likely that you will be falsely convicted goes against centuries of practical jurisprudence

really? I don't see that at all - does the US really convict less guilty people than Germany or France or Spain etc despite much greater resources? maybe I am a cynic - but I seriously doubt it. And I don't see you arguing the point, just asserting it.

I imagine there are many people outside of the US and UK looking at the US and having a good old laugh at your unfair system - it is probably a running gag.

> one of which is, if you allow the principle of killing by the state

You can give power and have oversight at the same time. Thats how good policy works. You don't always have to tie the hands of everyone else at the table to make sure they don't hurt you.

> but what actual practice has shown is that, if the state has the right to kill, the right to kill will spread...

Hmm isn't the rate of executions decreasing almost everywhere in the world?

GNZ: Hmm isn't the rate of executions decreasing almost everywhere in the world?From the AI UK site:

According to the UN Secretary-General's quinquennial report on capital punishment (UN document: E/CN.15/2001/10, para 68), for the period 1994 to 1999 Singapore had a rate of 13.57 executions per one million population, representing by far the highest rate of executions in the world. This is followed by Saudi Arabia (4.65), Belarus (3.20), Sierra Leone (2.84), Kyrgyzstan (2.80), Jordan (2.12) and China (2.01). The largest overall number of executions for the same period took place in China, followed in descending order by Iran, Saudi Arabia, the United States of America, Nigeria and Singapore.

According to this website, you have to go down to Wyoming nefore you find a US state with a lower execution rate than China. There are 20 states in the US where, proportionally, you are more likely to be killed by the state than you are in China.

Hmm isn't the rate of executions decreasing almost everywhere in the world?

Not in Texas....

does the US really convict less guilty people than Germany or France or Spain etc despite much greater resources?

Notoriously, the US does not devote its much greater resources to allowing anyone, no matter how indigent, the best defense possible.

So yeah, I'd say that was likely.

The best possible defense goes to the highest bidder, so I'm guessing you don't mean the best possible, in a global sense.

I'd settle for just competent, at this stage. Or something close to good enough.

Grisham's book The Innocent Man lays out in some detail how the combination of unscrupulous lawmen, substandard defense and a judge who's just not paying attention can result in the wrong man on death row, and the guilty party going free. I don't necessarily recommend it to people who have been following this kind of thing for a while, but it's one of Grisham's better pieces, IMO.

J, if I'm reading the table in your linked website correctly, that's aggregate executions over the last 30 years. From the AI UK website, China's reported executions are 30x that of the US; the estimated real executions are more like 130x of the US. I've read enough about China to completely believe that.

Which is not to say that the US ought to be evaluated using China as a yardstick, just commenting on the comparison between apples and bunches of bananas.

Oh, BTW The Innocent Man is a true story, not a novel.

Slartibartfast: The best possible defense goes to the highest bidder, so I'm guessing you don't mean the best possible, in a global sense.

In the UK, it's common for QCs and barristers who intend to "take silk" to do defense work pro bono. The point is to prevent a good defense being the recourse only of the high bidder.

I admit my understanding of this is a lay person's only, never actually having appeared in court on any criminal matter either as lawyer, defendant, or jury. But the problem of mounting a good defense when you're not very rich and not poor enough to get legal aid, AFAIK, occurs in civil cases, not criminal ones.

Slarti: Which is not to say that the US ought to be evaluated using China as a yardstick, just commenting on the comparison between apples and bunches of bananas.

Fair enough. Thanks for clarifying that.

Yes, I just confirmed that: anyone is entitled to free legal representation from a Criminal Defence Service solicitor if the crime they are accused of committing is one that will send them to jail (or make them lose their job) if they are found guilty: or if they're otherwise incapable of defending themselves (someone whose English isn't good or who's mentally subpar or who's a minor). It's not "pro bono", though: it's paid for, though defendants who can afford it will be asked to pay part of the fee.

The point is to prevent a good defense being the recourse only of the high bidder.

I get it, Jesurgislac; I really do. Things are rather one-sided, here, and there's a great deal more emphasis on convictions (and, in general, putting on the appearance of having solved a crime) than on fair trials.

"does the US really convict less guilty people than Germany or France or Spain etc despite much greater resources?"

The U.S. may or may not convict proportionally fewer people, but that's what would be relevant, presumably, not whether it either convicts "less guilty" people, or convicts fewer people in absolute terms. (I know, not what you meant, but it's what you wrote, which is why I respond.)

(The fewer/less use distinction actually changes the meaning of your sentence here, he pointed out trivially.)

you know what Phil had my number a bit there.

I think that arguing in favour if the death penalty is actually quite unpleasant so I'll do a first for political debate on the web and just outright concede the point regarding whether we should have a death penalty on those grounds.

I mean concede the point based on the fact that even the debate is unpleasant (as would have been the debate with Phil that i was being baited for), anyway thank god for my bad internet connection which seems to have stopped me.

and OK Gary,
yes to measure the two options (jury vs judges) against each other proportionally fewer people is what is most important.

Although I am also in favor of a system that sends less people to jail than the US one. the US has a LOT of people in jail - one has to wonder if the USA really does have that much nastier people than anywhere else.

GNZ: I think that arguing in favour if the death penalty is actually quite unpleasant so I'll do a first for political debate on the web and just outright concede the point regarding whether we should have a death penalty on those grounds.

I think one of the major advantages of hanging out at Obsidian Wings is getting to meet fundamentally decent conservatives.

one has to wonder if the USA really does have that much nastier people than anywhere else.

Yeah, it does, but they're all in the Bush administration, not in jail. :-(

I think (compared to the average European country*) there are more expressions of nastyness in the US. The factors contributing to that are likely to be quite complex, so I can only name a few symptoms:
1. The US has a certain anarchist/individualist streak that predisposes people to "take justice into your own hands" instead of leaving it to "the authorities".
2. Flowing from the same streak I see a greater tendency to use "hard" violence instead of "soft" techniques of conflict solving.
3. The "Winner takes all" mentality favors an all-or-nothing approach with less thought about fair-or-foul distinctions.
4. The state is less seen as the final arbiter and has less inherent authority (while often trying to abuse its power because it is staffed with the same nasties that got into position by applying the principles named above most ruthlessly)
5. The believe in one's country's own superiority has not died/withered yet as much. "superiority complexes" tend to bring out the worst in people.

Broad brush painting and oversimplification may be excused for the sake of argument. I do not claim that those reasons are the sole ones and the results of "comparative nastyness studies" are far from 100% objective.

*I leave Austria out here for it somehow manages to combine some of the worst charcateristics of both worlds.

me: "Balkin requires good legal reasoning too."

Reply: Not particularly because in his theory 'good legal reasoning' is determined almost entirely after the fact (you can't tell before the Supreme Court rules what good legal reasoning is). So when you say that it requires good legal reasoning too, you aren't telling us what that is.

Response: I'm not sure why it's important for purposes of the argument to explain the particular contours of the "good legal reasoning" as long as it IS good legal reasoning, which Kerr admits is not really present in the Yoo memo.

Furthermore, Balkin has a set of rules on how to reason independent of a particular case. You can match said rules with the results to see how reasonable the rulings are.

Finally, to the degree Balkin's jurisprudence arises out of some sort of common law system or whatever that develops over time (in some fashion, simply how things work in reality ... compare cases from the 1890s and 1990s), I'm unsure how this means the results are "unreasonable."

I can see if you say they are somewhat "unpredictable" or whatever (not that originalist labelled arguments tend to be relatively speaking anyway, but I digress), but "unreasonable?"

The problem with the living constitution is the product, not the marketing. The term "living constitution" itself actually falls on my ears positively, as it did when I first heard it as a school kid, at that time from teachers who taught it as a positive thing. Gives our constitution the ability to change with the times, don't ya know.

The trouble with any marketing term is that it eventually gets tainted, for good or for bad, by it's associated product. See the term "liberal", and eventually its successor "progressive".

It's interesting to note how often "liberals/progressives" set out to re-label their ideas, perhaps as an analgesic for wounds suffered in the marketplace.

Take the word "skunk". Not a pretty sounding word admittedly, but similar words "plunk", "bunk", "trunk", or "sunk" fail to provoke the nose curling response that "skunk" does. Or even "liberal".

So, you can keep telling yourselves its merely marketing. You can try to present your concept of "living constitution" with new names. If "living" is too much of a conservative marketing tactic for you, then why not try its opposite? Which is, incidentaly, where a living constitution takes you, a dead constitution, devoid of respect, and without ability to restrain the the government.

Here's what I don't understand, why would anyone blessed to have our constitution try?

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