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April 03, 2008

Comments

Because there isn't any other issue likely to come before the Court or that has come to the Court that comes anywhere near the "race in the US" issue.

How does one simultaneously argue this, while also arguing that Roe was so momentous that it created an entire political movement and changed two generations of voting demographics?

Jeff, I don't know what you mean when you suggest that the Constitution is silent on eminent domain. It isn't.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

The key there is 'public use'. This was traditionally thought of as something like parks or freeways or a government building or something. Kelo said that it was ok to take property from one private owner and give it to another private owner in various situations with limits that I won't even try to understand (giving it to a mall is definitely ok, there is hints that something wouldn't be ok but it isn't clear what.)

"How does one simultaneously argue this, while also arguing that Roe was so momentous that it created an entire political movement and changed two generations of voting demographics? "

We didn't fight a civil war over it.

Eminent domain is not covered by the Constitution

OK, what?

[blockquote]Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, [b]nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.[/b][/blockquote]

Katherine I think I can be clearer about my doubts re "original expected application" as an analytical tool.

I'm completely fine with it in the poison example. The understanding changed on facts. The court can take judicial notice of the change in facts.

I'm ok with it when tied to a specific phrase which has intentional ambiguity which changes with society. Say "cruel and unusual". But then the Court has to generally follow societal change, it can't lead.

I'm skeptical with it on unspecified rights that have a long extra-judical or common law history. A common law right tends to be fact specfic. Generalizing that and trying to avoid expected application seems like you are just trying to avoid the accountable branches to get what you want.

I'm dead set against it as a way to shoe-horn in rights with little or no history and ahead of actual societal change. At that point it just looks like a club to get whatever you want.

So when you want to use it in Brown and Roe and Furman as a club against me, I'm not sure it is equally appropriate in each case.

Sebastian:We didn't fight a civil war over it.

Ah, so is that your answer to Gary as to the objective criterion by which this "emergency" theory may be measured?

The key there is 'public use'. This was traditionally thought of as something like parks or freeways or a government building or something.

It is my understanding as a layman that SC jurisprudence allowing eminent domain seizures to benefit private property owners dates back at least as far as the mill cases in the 1830s if not Clark v. Nash in 1905. No?

I don't know what you mean when you suggest that the Constitution is silent on eminent domain.

Thanks. I did warn you that there was something I was missing.

(BTW, Phil, HTTP, not BBCode. Don't you wish there was one standard for all comments? I sure do, perferably BBCode. Then again, Preview is your friend!)

I mean, Brown was nearly a century after the aforementioned war, how big of a goddamned emergency could it have been? If the legislative process sufficed in the immediate and still-smoldering aftermath of that war, then what the hell?

Hey if you think that race relations aren't a more pernicious and politically intractable problem than almost anything else that's great. I'll let other people argue with you on that premise, I have my hands full in other dimensions of the argument.

I'll just restate that it is rather obvious to me that race relations are now and have been a bigger and nastier deal than just about anything in the history of the US. We did in fact fight a civil war about it. As strongly as I feel about abortion I'm not advocating a civil war over it, and in fact I'll probably bite my tongue lose the Supreme Court and vote for a Democrat because Republicans have been so awful.

And I know that doesn't sound like a big deal to you, but it is to me.

Katherine, in addition to my comment above, I would add that I'm essentially textualist about it so if you showed me a law that said "Car may only be painted green" but for some reason the expected application was that red would be ok, I would go by the text because it was in clear contradiction with the expected application. But I just don't buy new applications that contradict other parts of the text, that is going way too far.

Phil, I'm not an expert on Kelo, but my understanding of Clark v. Nash is that it was much more of a water rights/flow case.

Anarch:

Thanks! Although I'm not here for the feedback, it's always nice to know that at least my sincerity comes through.

Even though I consider myself conservative, I wouldn't be here if I didn't know I need (as my high school English teacher would say) to widen my pitifully narrow horizons. Your comments and the others that post here have made my horizons not quite so pitifully narrow.

I just hope my link to Scalia didn't ruin your good opinion of me :)

Turbulence: We've become so oriented to a strong federal government that your concern seems anachronistic today. I haven't heard a call for a strategic bomber force for a state since my exposure to Joe Vogler in Alaska (Alaskan Independence Party). He wanted to secede and take the military forces in Alaska for Alaska. Except he wanted separate nationhood, not just a super-militia.

"I can find nothing in the Constitution which says states cannot prohibit gay sex."

Try the equal protection clause.

I can't find anything in the Constitution which says states cannot prohibit all sex. Hmm?

Yoo et. al. have derived an incredible amount of power from the "executive power" of the President based on the first sentence of article II. Most if not all of that same crowd would go apeshit if the "judicial power" was interpreted to mean "justice by any means necessary." Justice delayed is justice denied. Injustice leads to war. Injustice is an emergency. End all injustice. The Supreme Court has the power.

If any good comes from Yoo's fraudulent memos -- abetting war crimes IMO -- it will be from providing another example of the bald judicial activism on the right.

Certainty and the resulting arrogance are national traits that have gotten the US into a fine mess and the Federalist Society, Bork, etc. are part of the problem.

Your comments and the others that post here have made my horizons not quite so pitifully narrow.

We put flouride in the comments to convert conservatives (and steal your PBFs)!

We've become so oriented to a strong federal government that your concern seems anachronistic today.

Oh I agree completely with you. Our society and legal system have changed dramatically in that regard. Which is the one thing that confuses me so much about originalism: it seems that an honest originalist reading of the constitution requires radically restructuring our society and the relationships between citizens, state governments, and federal governments. I mean, the framers had a very different conception of federal power than that which emerged after the Civil War. How do you reconcile that gap? Do you imagine that if the SC adopted a consistent originalist position that they would simply strike down government programs that did not fit (as in the Air Force example or indeed, the prohibition on states or citizens possessing nuclear arms)? Or do you think such understandings would be grandfathered in so as to minimize the disruption to society? Or do you think that gap is much smaller than I think?

Oh, and what Anarch said goes for me as well. Its good to have you here.

Hey if you think that race relations aren't a more pernicious and politically intractable problem than almost anything else that's great.

Which is not at all what I said, and if that's the tactic into which you're going to retreat, Jesurgislac Jr., you can go Cheney yourself. I asked why, if the legislative process was sufficient in the immediate aftermath of the Civil War, that nearly 100 years later things had become such an "emergency" that the legislative process no longer sufficed.

You can answer that question, or you can be an ass again. I suspect you'll be an ass, but I'm prepared to be pleasantly surprised.

Re the death penalty's constitutionality: while I agree that in theory, the fact that the framers anticipated that it was constitutional doesn't mean that it's forever outside the bounds of "cruel and unusual", I don't see how that helps the Brennan opinion. When a sizable majority of the public across the country seems to feel that the death penalty should be allowed, how can one seriously argue that the semantic domain of "cruel and unusual" has changed over time to include it?

Although to be honest, I haven't read the opinion itself...

Phil,

I can't speak for Sebastian, but I suspect he's using the word "emergency" in a very different manner than you are. He seems to be using it to mean "massive structural problem in the constitution that reflects a fundamental problem in society" as opposed to "massive acute problem that requires exigent measures immediately". In other words, I don't think he imputes any sense of time or temporal urgency when he uses that word; its more about the depth of the structural flaws involved.

At least, that's my guess. No doubt Seb will clarify his meaning. Either way, this analysis seems to raise a lot more questions that it answers, especially when it comes to objectifying it so that it can be deployed by people who are not Seb.

I am perfectly willing to admit that there have been any number of Sup. Ct. cases that are hard even impossible to reconcile with the text.

A flat ban of the death penalty was, imho, wrong. I think the Court had, and has, an ongoing obligation to review each state's mechanism of death, both on an individual basis and, where State procedures are so grossly inadequate, on a Statewide basis.

But oddly enough, one doesn't hear much talk from conservatives about how wrong the Slaughterhouse cases were. Nor about the Court's utterly incoherent 11th Amendment jurisprudence. Nor many mea culpas about the literally unprecedented use of the 14th Amendment in Bush v. Gore.

Nor the conservative justices' continuing support for corporate personhood. Nor the odd finding that there are limits to corporate punitive damages but virtually no limits to the ability of states, retroactively, to impose life sentences on minor felons based on their prior conduct.

Nope. Sebastian is as reliable as a swiss clock: death penalty and abortion (and, occasionally, gay sex). And not surprisingly, these are the issues that movement conservatives pound on in every available forum, desperately spending the credibility of a key institution of our democracy in return for one last vote.

Ya know, conservative attacks on the court would have just a smidge more credibility with me if they were willing to take a hard look at the badly decided cases that went their way.

Turbulence you are correct about 'emergency'.

As for objectifying it beyond me, please keep in mind 'compared to what'?

If it is a problem that my understanding breaks every 100 years or so on an issue the magnitude of race relations in the US over the past 200 years, that isn't necessarily bad compared to the currently proposed alternative system of judges can say that black is white that publius was talking about from the previous thread.

If it is a problem that my understanding breaks every 100 years or so on an issue the magnitude of race relations in the US over the past 200 years, that isn't necessarily bad compared to the currently proposed alternative system of judges can say that black is white that publius was talking about from the previous thread.

But if we can't take your proposed process and systematize it into an objective rule, then it boils down to exactly judges saying black is white.

I understand that you think race is a bigger issue than abortion, but other people will certainly disagree and I don't see a principled way to argue against them within the framework you've described. There's no clear principle or dividing line, which is what Gary and Katherine have been trying to get you to describe.

I just hope my link to Scalia didn't ruin your good opinion of me :)

Oh, don't get me wrong, I've never actually agreed with you (:

Here's another question thrown to the assembled throng: what would be wrong in your minds -- if anything -- with a justice saying, "Well, in my opinion, the death penalty is cruel and unusual; therefore, since (as a Supreme Court Justice) I am an arbiter of such things, I find it unconstitutional." ?

[I'm not saying anyone has actually said this, I'm just wondering what people find wrong with that position.]

I'm not sure the fifth is as textually clear as some here are arguing vis-a-vis eminent domain. To me, the plain text reading of that clause of the fifth says only that if and when land is taken from a private party for public use, then just compensation must be provided. It does not say under what other circumstances private land can or cannot be taken, or what should happen in those cases.

It has been interpreted as meaning what Sebastian and others say it does, but that's not what the text says.

The waters get even muddier when you start introducing the Justice Thomas idea (and maybe also Scalia, but I forget) that some parts of the Bill of Rights "resist incorporation." So the fifth could also be construed as one of those amendment that applies only to the federal government, in which case sending Kelo back to the local authorities would have been precisely the correct thing to do.

" For example you want it to operate in the death penalty cases even contrary to explicit text. That seems clearly wrong, as an original expected application that is in the text has to rule over a non-expected application that isn't in the text."

Not if making it decisive violates the Ninth Amendment's rule of construction. Again, you are using an enumerated right NOT to be subjected to capital punishment without due process, subjected to double jeopardy, etc. to disparage the right not to be subjected to cruel & unusual punishment. If the application of cruel & unusual punishment clause can change with time, that goes for capital punishment too, unless you read the rest of the text in a way that the Ninth Amendment explicitly instructs you not to read it. The text does NOT state that "capital punishment is constitutional". You can use it to imply that capital punishment is necessarily constitutional but that violates the Ninth Amendment rule of construction.

How do you reconcile that gap?

I don't think it can be reconciled. That in a way is my point. We have ceded too much power to the judiciary and away from state and federal legislatures. But we can go back. The "grease" to make it happen would likely be in the remedy.

For example, if the USAF is unconstitutional, rather than disrupt the lives of those men and women in the service and to avoid leaving us vulnerable, you could give congress enough time to get it right (back to the Army Air Corps). Of course, congress could simply disagree and refuse to budge (but different constitutional issue).

Same with Brown v. Board of Ed. There is as much controversy in the remedy as there was in the grounds for the decision. Because so much time had passed since the 14th A., there was a "reentry" problem to getting things back to the way they should have been all along.


Nor many mea culpas about the literally unprecedented use of the 14th Amendment in Bush v. Gore.

Let me be the first. Should have relied on Article II alone.

I've never actually agreed with you (:

At least read it. It has its funny parts.

what would be wrong in your minds -- if anything -- with a justice saying, "Well, in my opinion, the death penalty is cruel and unusual; therefore, since (as a Supreme Court Justice) I am an arbiter of such things, I find it unconstitutional

Nothing if the Constitution read "cruel and unusual punishment in the opinion of the majority of the Supreme Court Justices."

Read Scalia's dissent in Roper v. Simmons. In short, "The Court thus proclaims itself sole arbiter of our Nation’s moral standards–and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures. Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent."

"I'm skeptical with it on unspecified rights that have a long extra-judical or common law history"

I don't know quite know what you mean by "unspecified rights." Every single one of the rights protecting amendments is written in pretty general terms. When I'm arguing that a right is constitutionally protected, I pretty much always saying:

--this is an element of the right to due process/equal protection/free speech/free exercise/some other right specifically listed in the text

or

--the text implies that this right is protected; this right has to be constitutionally protected to make the other individual rights provisions meaningful protections of liberty.

An example of the second category: the argument that the Const's statement that private property may not be taken for public use w/o just compensation implies that private property cannot be taken by the state for private use. There's a textual basis for that but it's implied, not stated outright.

If you read the text really literally, not only is the state taking for private use allowed, but there's no need to compensate for it. But that wouldn't make any sense at all, which is why you need purposive textualism.

bc, quoting Scalia
any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent."

That Scalia remark is also a jab at Kennedy and his citations of foreign cases, and I don't think we've discussed that, so I'm wondering why the SCOTUS should or should not ignore foreign legal precedents. There was an interesting Toobin article on it (I think in the New Yorker), but it must have been part of his book, _The Nine_, cause the article doesn't come to the top of a Google search. The google search also reveals that the Toobin book has attracted the ire of a lot of conservative bloggers, though this is just at a glance as I am at Narita airport on public internet on my beater computer, so I hesitate to pop open a lot of tabs.

btw, I'd second anarch's praise of bc and also, as much as it might seem like déja vu all over again, I appreciate Seb and Katherine laying out their points again in a civil manner, as it does serve to educate a non-lawyer like me.

"f the application of cruel & unusual punishment clause can change with time, that goes for capital punishment too, unless you read the rest of the text in a way that the Ninth Amendment explicitly instructs you not to read it. The text does NOT state that "capital punishment is constitutional". You can use it to imply that capital punishment is necessarily constitutional but that violates the Ninth Amendment rule of construction."

You're assuming that the Ninth Amendment ought to be read as if it can overrule other sections of the Constitution that were passed at the same time. There is no reason I can think of that you should assume that. Especially since the Ninth is non-specific while the previous amendments are specific. Under your analysis they really should have had ONLY the 9th amendment--a view which was shared by one of the founders so it isn't completely ridiculous.

You're essentially saying that the meaning of one section can change to invalidate another section. I'm saying that the sections validate and limit possible interpretations of each other. If you stretch and stretch and stretch the meaning of one so far as to contradict the limits set by another, a textual analysis suggests that you have stretched the first phrase too far.

If you have time, I'd like a response about why social mores about the presidential war powers can't change enough to potentially invalidate habeas corpus rules the way you think the 8th amendment can invalidate the strong suggestion that the death penalty is permitted under the Constitution in your Constitutional theory. Can purposive readings be used to expand Presidential powers at the expense of personal rights? (See for example property rights and eminent domain perhaps).

"Every single one of the rights protecting amendments is written in pretty general terms. When I'm arguing that a right is constitutionally protected, I pretty much always saying:

--this is an element of the right to due process/equal protection/free speech/free exercise/some other right specifically listed in the text

or

--the text implies that this right is protected; this right has to be constitutionally protected to make the other individual rights provisions meaningful protections of liberty."

This isn't true of the Marshall opinion on the death penalty cases. Do you agree that he went too far?

Relatedly you haven't ever answered how or why the Court is permitted to get ahead of the society on questions where social mores allegedly have an influence. It seems to me if "cruel and unusual" is supposed to evolve to reflect new social understandings the Court might want to wait until there is an actually new social understanding.

Here's what I the citizen actually think about the death penalty:

Yes, it's cruel & unusual.

1. "Cruel & unusual" means "cruel and excessive," or "unnecessarily cruel," or "gratuitously cruel" not "cruel and uncommon." Only way to make sense of the clause & there's plenty of support for this reading in the case law.

2. Obviously the death penalty inflicts a great deal of suffering on a person. Does it inflict excessive, gratuitous, unnecessary suffering? Well, what's our justification for the suffering?

3. We don't have good evidence that it deters murders.

4. I think the main justification is retribution. I do concede that retribution is a legitimate purpose of criminal justice. But, the legitimate side of it is to express society's moral condemnation of the act, not society's hatred of the person who committed it. And there's a limit to the punishment it justifies.

We agree, I think, that torture & rape are lesser offenses than murder. We also agree that sentencing torturers to be tortured & rapists to be raped would be cruel & unusual. Why? Because we can't very well show how wrong we think rape is by raping people. We can't very well show how wrong we think torturing is by torturing people. So why do we think we can express how wrong murder is by murdering people? (I use the term "murder" because if anyone but the state carried out an execution, we'd call it murder).

5. I think it feels different because unlike rape or torture, killing incapacitates: it's possible to kill in self defense; you can't rape in self defense. An execution isn't self defense, but it is a sure way to prevent the condemned from harming anyone else ever again. And it was once the only reliable way to ensure this. But not anymore, not in the U.S.

6. If 5 sounds silly let me draw an analogy:

assume the death penalty IS constitutional. Is it permissible to inflict more pain than you need to inflict during an execution? Or are you obligated to kill someone as painlessly as possible?

If the latter, then it's quite possible for a method of execution to become cruel & unusual because of scientific changes. If hanging & the electric chair inflict much, much more suffering before death than lethal injection. Because, you could say, there's another way to incapacitate someone & express condemnation for their actions without inflicting gratuitous pain & cruelty.

So: it's possible that hanging someone in 1789 is not cruel & unusual but hanging someone in 2008 is, because in the interim we've developed another way to execute them that inflicts less suffering. Well, then. It's also possible that execution in 1789 was not cruel & unusual but doing it in 2008 is, because society has developed another way to incapacitate them & express condemnation for their crimes that inflicts less cruelty & suffering.

7. Whether this would be a basis for I the Supreme Court justice to overturn established precedent, I don't know. You can argue that it shouldn't be MY view of what's gratuitously cruel. But, they put the words "cruel and unusual" in the constitution; they knew how subjective it was; and it's my job to interpret the constitution. It doesn't make sense for me to just say, "the legislature decides" or "the majority decides"; if the majority & legislature were supposed to be the final word on whether a criminal punishment is cruel & excessive then the 8th amendment doesn't serve any purpose.

You could argue that all of this is much too shaky for me to overturn settled precedent. But, there's no clear guidance as to when you keep a precedent you think is wrongly decided under the text due to stare decisis, & when you overturn it. Anyway, regardless of what I'd do on the Supreme Court, I do think that the death penalty is cruel & unusual punishment; the only question is whether I'm certain enough to vote to overturn centuries of precedent, the original expected application, the current popular consensus, etc. Since I'm not on the Supreme Court I don't need to decide this, but even if they made the wrong call on this one I will remain very, very grateful that William Brennan & Thurgood Marshall were on the Supreme Court, & totally convinced they were each better justices than Roberts, Scalia, Thomas, & Alito put together.

"It seems to me if "cruel and unusual" is supposed to evolve to reflect new social understandings the Court might want to wait until there is an actually new social understanding."

I think the Supreme Court claiming to speak for the social consensus of the majority of the American public is a pretty dubious argument for striking down a statute enacted by the elected branches. I also think it's pretty silly to assume that any provision in the bill of rights is supposed to mean what the majority says it means & no more, because the whole point is protection of minorities against the majority. This is why I say "cruel and excessive" makes more sense than "cruel and unusual."

The Supreme Court justices are appointed & confirmed by the elected branches so there actually is a mechanism in place for ensuring they don't get too far out of whack with the "emerging social consensus."

"Whether this would be a basis for I the Supreme Court justice to overturn established precedent, I don't know. You can argue that it shouldn't be MY view of what's gratuitously cruel. But, they put the words "cruel and unusual" in the constitution; they knew how subjective it was; and it's my job to interpret the constitution. It doesn't make sense for me to just say, "the legislature decides" or "the majority decides"; if the majority & legislature were supposed to be the final word on whether a criminal punishment is cruel & excessive then the 8th amendment doesn't serve any purpose."

The problem is that you are simultaneously justifying the decision because society has allegedly changed its view, and then immediately backtracking to say that the societal view doesn't control if it disagrees with you (or the individual judges).

How is that different from just saying that whatever the judge wants should control?

How is that 'law'?

This is especially troubling:

if the majority & legislature were supposed to be the final word on whether a criminal punishment is cruel & excessive then the 8th amendment doesn't serve any purpose.

As far as I understand it, your whole argument with me has been that society's understanding of certain clauses (like 'cruel and unusual') can change so much that their interpretation can actually contradict other sections of the Constitution.

But when it comes down to how that mechanism actually works you now assert that the views of the majority and the legislatures aren't important because that would invalidate the 8th amendment.

How can that possibly work? You are arguing that the 8th amendment must change to fit society's view of 'cruel and unusual' AND arguing that it must overrule society's view of 'cruel and usual'.

And I catch crap for having a once every generation emergency clause?

This is your routine understanding of how the Constitution is supposed to work on everything!

"How is that different from just saying that whatever the judge wants should control?

How is that 'law'?"

See: U.S. Constitution, 8th amendment, "cruel & unusual punishment" clause. I was just interpreting that text & applying it to the death penalty.

"How can that possibly work? You are arguing that the 8th amendment must change to fit society's view of 'cruel and unusual' AND arguing that it must overrule society's view of 'cruel and usual'."

I am arguing that the application changes with the facts & the terms are vague enough & contain enough loaded moral terms that they are impposible to interpret without the exercise of judgment by the interpreters. Judges making judgment calls, what a concept! Different judges exercise their judgment differently. But, not surprisingly judges who live in a particular time, who a common set of historical experiences & common knowledge of certain historical facts, who are close enough to mainstream public opinion of that time to get themselves nominated & confirmed, are going to reach a consensus about some things that is different from the consensus in past generations.

There is nothing illegitimate about any of this, every other country with a Constitution in the world realizes it, and Scalia's & your argument to the contrary is a load of crap that we should have stopped falling for long, long ago. You are absurdly, absurdly obtuse about this.

"if the majority & legislature were supposed to be the final word on whether a criminal punishment is cruel & excessive then the 8th amendment doesn't serve any purpose."

Forget troubling; explain how it's wrong. If the elected branches are the final word on the meaning of a constitutional clause, than the passage of a law is irrefutable proof of its constitutional. That doesn't make any sense.

So your new argument is, to be legitimate the Supreme Court opinion must reflect either the original expected application or the will of the majority? Oh, look, there go those civil rights cases again...

"if the majority & legislature were supposed to be the final word on whether a criminal punishment is cruel & excessive then the 8th amendment doesn't serve any purpose"

This isn't true by the way. It is perfectly possible that an enormous majority of the country could come to one understanding and there could still be a holdout state or two.

That is completely counterfactual as to the death penalty but just because the reasoning doesn't get you what you want out of the death penalty cases doesn't mean that it "doesn't serve any purpose". It just doesn't serve the purpose of getting the outcome you want in that particular case.

So to be clear, you want to justify interpreting a clause contrary to historical precedent and previous expectations of application by appealing to changing moral values even if the majority has not changed in fact its view of the moral value or clause in question?

And you think this applies to any clause where there is (from your point of view) 'ambiguity'?

So if Bush can get 5 judges to vote against habeas because of their purposive reading of Presidential powers and their personal understanding of morality (majority reading unneeded of course) you won't say that they are Constitutionally wrong, merely that they made an unfortunate decision that you disagree with in terms of outcome?

Your method sounds to me like it protects the civil rights cases even less than my method.

Again, the complaint that I have to appeal to an emergency in the racial issue seems to pale in comparison to the holes in the actual application of your theory. Essentially every single possible decision under your theory has the problem I'm getting slammed with on the Brown case.

Original intent is a lot like Fundamentalist Religion. No one would wish or accept all the actual views or expectations of 200 or 2000 years ago, it is only a matter of what they pick and choose to see, and what they choose to ignore. Even when the ignored bits are the natural result of the bits they favor.

The one thing that is clear is that the actual "original intent" was to hold all power as limited and accountable as possible. It was well understood that nobody can plan for everything, and atrocities like Slavery, racism, etc. were imperfections that could not be fixed at the time but neither any part of that ideal.

Always the conservative stand has been that Civilization was not yet ready to address this or that atrocity, but always that it could be fixed in some indefinite future.

It is only the recent Gang Of Pirates that has attempted to restore atrocity with a "house of cards" reasoning, held up more by repetition and vehemence than by logic, as the slightest zephyr of reality blows it to bits, that the Constitution was about protecting Power in the form of "Ownership", giving only such freedoms to actual people, as the most narrow reading would allow.

The Constitution is not an insurance policy like the ones you get written by Company Lawyers providing for only the narrowest rights for actual people, but rather the most expansive rights for actual people to decide about their own life and maximum accountability for those who decide for others. That is the only "Original Intent".

I can't speak for Sebastian, but I suspect he's using the word "emergency" in a very different manner than you are. He seems to be using it to mean "massive structural problem in the constitution that reflects a fundamental problem in society" as opposed to "massive acute problem that requires exigent measures immediately". In other words, I don't think he imputes any sense of time or temporal urgency when he uses that word; its more about the depth of the structural flaws involved.

Yes, well, as you note, that doesn't really get us anywhere aside from getting Sebastian to admit that, yes, in fact, there absolutely ARE times when "the Court is permitted to get ahead of the society on questions where social mores allegedly have an influence" and doesn't have to "wait until there is an actually new social understanding."

That other people construe when those times occur differently from when Sebastian does is, well, unremarkable.

In fact, I'd submit both that:

-- The structural and institutional deficiencies in the application of the death penalty are, on 14th Amendment grounds alone, sufficient to ban it outright per Sebastian's "emergency" rule; and in fact that this was MORE true at the time of Brennan than it is today. We have, theoretically, more forensic tools available than ever before to help us apply evidence and the law accurately in capital cases. We didn't in 1972.

-- You can probably get a sufficient number of people (I am not one of them) to agree that the state of gun violence in this country and its corresponding death count is an "emergency" to merit the Court voiding the Second Amendment.

If that's the road he wants to go down, well, OK.

"This isn't true by the way. It is perfectly possible that an enormous majority of the country could come to one understanding and there could still be a holdout state or two. "

8th amendment, not the 14th. It applies to the federal gov't and was incorporated against the states much later. And of course I think cases can be wrongly decided. My point is that there is no foolproof silver bullet theory of interpretation that prevents cases from being wrongly decided. Yours works no better than mine: see Bush v. Gore. See the torture memos; Yoo purports to be originalist. See Dredd Scott, which uses an originalist justification. etc. etc. ad infinitum. It's not only that originalists are fallible too; it's that I think there track record is noticeably noticeably worse. The response to this is usually: but that's what the Constitution MEANS. I say, no, it doesn't, and your argument for why it means that is utterly discredited by cases where the plain meaning of the text blatantly contradicts the original expected application, of which the racial cases are only the most blatant of a long line of examples. The fact that your theory comes out with the legal equivalent to "2 + 2 = 5" in the context of the equal protection clause & Jim Crow isn't some wacky emergency; it's a sign that your theory is broken. If your computer program was telling you that 2 + 2 = 5, you would think, "gee, I think something's off with this program."

No doubt you'll have another idiot straw man to respond to this...I'm rapidly losing interest, but Balkin's latest is good.

Phil, Brennan's a Justice, Furman's the case.

"So to be clear, you want to justify interpreting a clause contrary to historical precedent and previous expectations of application by appealing to changing moral values even if the majority has not changed in fact its view of the moral value or clause in question?"

I'm appealing to changing facts: it was once practically impossible to incacitate people without executing them. It's not anymore. Why don't you actually try dealing with the actual argument for once? Especially the analogy about more & less painful means of execution. I'm acknowledging that my analysis of what counts as "cruel and excessive" is necessarily informed by my own moral views, instead of lying about that fact or deceiving myself about the fact. Also, I did not say whether I thought a Supreme Court Justice should rule the death penalty unconstitutional; maybe they shouldn't because of stare decisis. I said I the citizen thinks it's unconstitutional.

We don't have good evidence that it deters murders.

You answer this later in the same comment. It certainly deters the offender from offending again. In a debate at my law school on capital punishment, a police officer spoke about having to inform a family that a released murderer had killed again. Best argument I ever heard in favor of the death penalty (in policy terms, not legally).

So: it's possible that hanging someone in 1789 is not cruel & unusual but hanging someone in 2008 is . . .

Great. The Constitution doesn't say you HAVE to use capital punishment. So either pass a law banning it or amend the constitution.

How exactly do you reconcile the 5th and 14th Amendments' "deprived of life . . w/o due process" or the 5th amendments capital crimes/grand jury language with your interpretation of the 8th A? Clearly it was Constitutional in concept at the time of drafting.

I can respect an approach that utilizes only the due process clauses and says as applied there is no due process here. At least it's textually based. But the moving standard is a problem. Substitutes 9 justices for the legislature.

I will remain very, very grateful that William Brennan & Thurgood Marshall were on the Supreme Court, & totally convinced they were each better justices than Roberts, Scalia, Thomas, & Alito put together.

Interestingly, in a time when the confirmation process was not so political, Scalia was confirmed 98-0. And it appears that your definition of "better" is results oriented.

Different judges exercise their judgment differently. But, not surprisingly judges who live in a particular time, who a common set of historical experiences & common knowledge of certain historical facts, who are close enough to mainstream public opinion of that time to get themselves nominated & confirmed, are going to reach a consensus about some things that is different from the consensus in past generations.

And why you can't leave the Constitution to anyone's whim. BTW, do you really think any of the justices are "close to mainstream public opinion?" Roberts maybe. But Souter? Ginsberg?


the Supreme Court opinion must reflect either the original expected application or the will of the majority? Oh, look, there go those civil rights cases again...

I see no reason why you necessarily lose the civil rights cases under the 13-15th amendments. Badges of slavery.

There is nothing illegitimate about any of this, every other country with a Constitution in the world realizes it, and Scalia's & your argument to the contrary is a load of crap that we should have stopped falling for long, long ago. You are absurdly, absurdly obtuse about this.

Every other country in the world has absolutely nothing to do with our Constitution. Except that certain justices seem to now think it is relevant.

I'm appealing to changing facts: it was once practically impossible to incacitate people without executing them. It's not anymore.

But you're appealing to 9 unelected people instead of the legislature. So change the law. Or the Constitution. The right way.

"I'm appealing to changing facts: it was once practically impossible to incacitate people without executing them. It's not anymore. Why don't you actually try dealing with the actual argument for once?"

Where did you make this argument before? I don't even remember it as a throwaway line much less any major part of your argument. Did I miss the comment where you highlighted the importance of that argument enough to think that "Why don't you actually try dealing with the actual argument for once?" makes sense. Can you show me the comment where you made this an important facet of the conversation, here or in ANY of our previous conversations on the topic?

But now that you've raised this issue, you're completely wrong on the facts. We've had very successful maximum security prisons in the US for more than a hundred years. Alcatraz was opened in 1907 and it wasn't even the first of its kind. San Quentin was opened in 1852. Leavenworth was opened in 1903. SingSing was opened in 1825. And those are just the famous ones I can think of enough to throw their names into google to find out when they opened. I'm pretty sure there are lots of others ones.

"We don't have good evidence that it deters murders."

You're completely wrong there too. We now have excellent evidence that the death penalty deters murders. The only question now is where the range of prevention lies: low estimates are 3 murders prevented for every execution, high estimates are 18 prevented for every execution. See for example the Mocan study: Estimates of the Deterrent Effect of Alternative Execution Methods in the United States: 1978-2000
American Journal of Economics and Sociology, vol. 65, no. 4, p. 909 (Oct. 2006). (Note that he is a death penalty opponent!) According to the guardian article "A 2003 study he co-authored, and a 2006 study that re-examined the data, found that each execution results in five fewer homicides, and commuting a death sentence means five more homicides. ``The results are robust, they don't really go away,'' [Professor Naci Mocan] said. ``I oppose the death penalty. But my results show that the death penalty (deters) - what am I going to do, hide them?''"

There is a whole list of modern studies, all of which show a detterence level of at least 3 prevented murders per execution here .

See also an essay by Cass Sunstein in the Stanford Law Review on the topic here .

"No doubt you'll have another idiot straw man to respond to this...I'm rapidly losing interest"

Apparently you already did. It is amazing that you are so snippy with me on allegedly changing 'facts' when you are wrong on the facts you say have changed.

In a debate at my law school on capital punishment, a police officer spoke about having to inform a family that a released murderer had killed again. Best argument I ever heard in favor of the death penalty (in policy terms, not legally).

Yes, I suppose that would be a compelling argument if the only alternatives were releasing murderers and executing them. Unfortunately, there is another option, one whose existence makes this whole argument fall apart.

If your only goal is to minimize murders, you should be executing everyone who commits any violent crime and you should be executing anyone involved in domestic violence. But that's patently ridiculous.

As I recall, the state has no obligation to protect the lives of its citizens; the police certainly have no obligation to show up promptly or even at all when I call 9/11.

Far more people die of substance abuse each year than of homicide. Perhaps if avoiding deaths is the paramount objective of the government, we can begin bombing cigarette and alcohol production facilities?

Turbulence: "Far more people die of substance abuse each year than of homicide. Perhaps if avoiding deaths is the paramount objective of the government, we can begin bombing cigarette and alcohol production facilities?"

Maybe for some people there is a moral difference between murder and allowing people to do pleasurable things that also risk hurting themselves.

Just throwing it out there.

Also re:

Yes, I suppose that would be a compelling argument if the only alternatives were releasing murderers and executing them. Unfortunately, there is another option, one whose existence makes this whole argument fall apart.

If your only goal is to minimize murders, you should be executing everyone who commits any violent crime and you should be executing anyone involved in domestic violence. But that's patently ridiculous.

In your first paragraph you seem to be alluding to life imprisonment as if it had the same effect as execution. But you may be drawing back from it in the next paragraph. Your second paragraph is argument by hyperbole, but it doesn't even succeed on those terms, as I at least would be willing to have executions for rape, many forms of kidnapping, certain forms of torture that stop short of murder, and certainly a number of other violent crimes.

Furthermore when you attack things under the rubric of "if your only goal is 'X'" it is almost always a strawman. Very few people act as if they had only one goal.

Secondly as there is very strong evidence (to the level of peer reviewed articles on the subject) that executions of murderers deter murders (in addition to the executed murderer himself) you can make the argument that deterrance plus just retribution makes an argument for capital punishment of murderers that doesn't have to automatically extend to all detterance possibilities. (This is where retributive concepts act to restrain punishment--no matter what the deterrance value, you ought not be punished more than you deserve. In a system where retributive ideas are excluded [which I'm not suggesting that you are arguing for] you might get excellent dterrent value from punishing factually innocent people if you do it with the right propaganda).

Bombing those facilities would violate the clean air act ;-)

Slightly nonsensical: How many executions would be necessary to drive the murder rate to zero*? Or would one have to stop the moment the number of executions exceeds the remaining muder cases?

With a bit more of reality: For what circumstances were these studies made (only the US or worldwide, what period of time etc.)? I would think any deterrence effect would be highly dependent on the circumstances and the way of application**.

Another question not totally removed from reality: I know people (not US citizens, so the "cruel and unusual" does not apply) that think "simple" death is not strong enough a deterrent and that therefore capital punishments needs to be dehumanized again. On at least one occasion I have heard the argument that torturing to death really slowly would be the thing.

To a question asked high high above:
Term limits for judges on the German supreme court (8 years iirc) work extremly well but the court is by far not that politicized (the German constitution is also easier to change and is updated on quite a regular base) and there is common consent that an ex-supreme court judge (at least federal) may not use his former position for personal gain. The options are: 1. retirement, 2. Academia, 3. Head a nonpolitical public or otherwise non-profit institution, 4. Head of state (no formal political power).
Totally unlike the US it also seen as quite inappropriate for former heads of the executive to go for profit on that afterwards (ex-chancellor Schröder's behaviour was legal but seen as clearly over the line by the public and GASPROM may have made a bad acquisition with him for that reason).

*assuming there is a linear relationship not an asymptotic one
**so, I would on principle doubt the methodology on this independent of result or personal opinion of the person doing the study, since double-blind studies are not really possible here.

Given that there is definite, concrete evidence from other countries that there's no effect on the homicide rate from banning or inflicting the death penalty, I would want to know - if there are studies showing that there is such an effect in the US, what makes the US homicide rate so different from other countries?

The US has (this may not be the most recent figure - the government site is down) a homicide rate of 8.4 per 100 000: in the UK, where we haven't executed anyone since 1964, it's 1.97 per 100 000. For Scotland, which has the second-highest homicide rate in Europe, it's 2.33 per 100,000 - the last person executed in Scotland was hung in 1963.

Since 1998, in the UK, there has been no death penalty permitted for any offense, including high treason and piracy. There has been no sharp rise in the number of homicides as a result (nor was there when the death penalty was abolished for murder in 1963). There has been a steady rise in the homicide rate (this graph adds notes explaining such things as an unusual apparent peak in 2002/2003, when all of Harold Shipman's 215 confirmed murders were added to the crime statistics for that year) but given the improvement in criminal detection over the same time period (and the rise in drug-related offenses) it's impossible to correlate this to removal of the death penalty.

I confess: I do not follow the arguments in the link you provided. But they do seem to be focussing exclusively on the US, and ignoring the effects of the death penalty's repeal or imposition in other countries. (Australia is the classic example, where homicide rates remained relatively constant across different states regardless of whether the state had the death penalty, never had the death penalty, or repealed, re-instituted, and repealed the death penalty.

So, presuming these studies showing a correlation between the state killing an alleged killer and other killers being deterred is accurate, why is the US different?

Maybe for some people there is a moral difference between murder and allowing people to do pleasurable things that also risk hurting themselves.

I don't see room for such differences in the exceedingly narrow moral universe bc's anecdote suggested.

Furthermore when you attack things under the rubric of "if your only goal is 'X'" it is almost always a strawman. Very few people act as if they had only one goal.

Quite possibly. But then perhaps you could convert bc's fragment of a thought into an actual argument. What policy are we supposed to adduce from this little anecdote if not the notion that we should take extreme measures to ensure that police officers never have their feelings hurt by having to tell someone their family member was killed by a murderer?


Secondly as there is very strong evidence (to the level of peer reviewed articles on the subject) that executions of murderers deter murders (in addition to the executed murderer himself) you can make the argument that deterrance plus just retribution makes an argument for capital punishment of murderers that doesn't have to automatically extend to all detterance possibilities.

It might help if you mentioned that other studies contradict and question the results you pointed to; a brief survey can be found here. Your argument implies that the science is settled, but I don't think that's true at all.

"Slightly nonsensical: How many executions would be necessary to drive the murder rate to zero*?"

At the current small level of executions I suspect that it would appear linear for medium-level increases. The overall curve is almost certainly asymptotic. Simplisticaly if it were on a 1/x curve (and if deterrance were the most important factor) I would suspect we are on the far right where the slope is very steep. Now if the slope were closer to -1 you might argue that we are approaching diminishing returns.

(Of course there other other appropriate concerns rather than pure deterrance--actual guilt and innocence being a very important one.)

No, exactly like global warming the science is settled. At this point, exactly like global warming, the bickering is over the magnitude of the effect.

Turbulence: "Far more people die of substance abuse each year than of homicide. Perhaps if avoiding deaths is the paramount objective of the government, we can begin bombing cigarette and alcohol production facilities?"

Maybe for some people there is a moral difference between murder and allowing people to do pleasurable things that also risk hurting themselves.

Um. If your argument here is that drinkers and smokers only risk hurting themselves, you may want to re-examine your premises.

And clearly, given Jes's post, the science is manifestly not settled.

Seb,

If you feel that the scientific debate over global warming is being misrepresented, may I suggest you make a post exploring that issue so that we can discuss it? I think people will be happy to engage in a discussion and review whatever literature you feel is being ignored or misrepresented, but that's difficult to do without a place to discuss and I'd rather not thread jack here.

My only point in bringing up the anecdote was to highlight the one deterrent effect often overlooked.

So if studies show that where capital punishment is "in play" the murder rate doesn't change, what does that mean? How do you isolate the deterrent effect? I would think that if the murder rate doesn't change that would actually mean the murder rate would be higher without capital punishment because you are preventing murderers from killing again.

Then again, if the rate goes up, what does that mean? What if it is for reasons completely unrelated to the deterrent impact of capital punishment? Wasn't the argument in Freakonomoics that the drop in crime rate was linked to Roe? How does that relate to Australia or Europe? Now they say that proximity to a slaughterhouse can affect the violent crime rate? (are we about to get new slaughterhouse cases? :)

I, for one, think there are things so horrific that I don't have a problem with capital punishment to express society's outrage and to prevent reoffense by the same person.

But we digress. These are great arguments for a legislature to have. The only question for SCOTUS is whether it violates the Constitution. I am open to the argument that you can't implement a fair system. In theory, no problem. In practice, I have questions.

"No, exactly like global warming the science is settled."

This is not only false, but ludicrous, & shows a complete ignorance of the flaws in econometric regression analysis.

"If you stretch and stretch and stretch the meaning of one so far as to contradict the limits set by another, a textual analysis suggests that you have stretched the first phrase too far."

I don't know what "a textual analysis" means in the context of this sentence.

Could you elaborate, a bit, perhaps, so it reads to me differently than "If you stretch and stretch and stretch the meaning of one so far as to contradict the limits set by another, Sebastian's personal opinion suggests that you have stretched the first phrase too far."?

Thanks.

bc: I, for one, think there are things so horrific that I don't have a problem with capital punishment to express society's outrage and to prevent reoffense by the same person.

I agree. One of the things I think is just that horrific is a bunch of people getting together and coldbloodedly deciding to kill another human being who poses no threat to them, for no purposes other than vengeance and/or a statistical theory that maybe killing people like that will make other people safer.

So, if the death penalty is imposed, everyone involved in killing that person must die too - it's just that simple. If you coldbloodedly decide to put another person to death, I say you don't deserve to live.

The recursive effects of this highly moral policy will end when the last person alive in the US sits themselves down in an electric chair and pulls the switch on themselves.

Incidentally, this will also resolve the problem of getting the troops out of Iraq, whether Obama or Clinton should be President next year, and who killed Roger Rabbit.

"This is not only false, but ludicrous, & shows a complete ignorance of the flaws in econometric regression analysis."

Nice. I'm quite confident that my mathematical training is superior to yours Katherine even though you did go to a vastly superior school, but you can feel free to make assertions in contradiction of evidence all you want. The case for deterrant is very strong, I've linked to numerous peer-reviewed literature on the topic. The quibbling from the anti-death penalty side is mostly over the magnitude of the effect not the existance of the effect.

I see that you are now dodging the issues. I asked a few very specific questions. When you ask specific questions, you expect and in some cases purport to demand responses and get abusive if they aren't quick enough or convincing to you.

I'm most specifically interested in these two question:

Will you be providing a link to the comment or comments outlining the importance of new incarceration techniques that is allegedly so obviously central to your argument as to deserve "I'm appealing to changing facts: it was once practically impossible to incacitate people without executing them. It's not anymore. Why don't you actually try dealing with the actual argument for once?"

Are you sticking to the idea that we were unable to effectively incarcerate people until the 1970s, when these death penalty cases came down?

Sebastian: The quibbling from the anti-death penalty side is mostly over the magnitude of the effect not the existance of the effect.

So again, Sebastian: as this effect exists exclusively in the US, and has been shown in a concrete way not to exist in other countries, where are the studies examining what makes US homicide different from the homicides in all other countries? Because without that, there's a humungous hole in the science.

The quibbling from the anti-death penalty side is mostly over the magnitude of the effect not the existance of the effect.

Based on the link I provided earlier, I don't think that's true. At least one paper argues that the deterrent effect is nothing more than an artifact of analysis, and that the analysis can easily show that the death penalty increases the murder rate.

I think the breadth of counter publications suggest that we're talking about something more than just the magnitude. Since we're talking about the expected value of lives saved by the death penalty going negative, I don't think it is fair to characterize the debate as "quibbling".

Also, the effect is very much at issue. Several papers are arguing that there is no effect in reality.

Seb, before casting aspersions on Katherine's statistical abilities, would you mind telling us what your statistical training is? I vaguely recall that you work with statistics...

Yeah, well, I'm married to an economics professor, & he concludes that people who use flawed regressions whose results are contradicted by other studies & change when you change the model, instrument & assumptions, as definitive scientific proof of causation, he concludes that they: (1) are being dishonest (2) don't know what they're talking about. So my respect for your approach to statistical analysis just comepletely nosedived, & we're just at an impasse where I just don't find you remotely credible anymore.

The factual change is since 1789; I'm making a textual argument & I am countering your argument that various other clauses prove definitively that capital punishment is necessarily constitutional. (In addition to the fact that your argument ignores the text of the 9th amendment). Whether my textual argument is strong enough to outweigh stare decisis concerns is a separate question that I'm not sure of the answer to, as I've said maybe 6 times now. Probably not. Probably I wouldn't have done what Brennan & Marshall did. But I think their opinion is more defensible reading of the text than any # of Scalia opinions interpreting the 8th amendment (e.g. that lovely dissent about how prison guards handcuffing & beating people isn't cruel & unusual because the 8th amendment only applies to judicial sentences even though the text refers to punishment being "inflicted"; the opinion making fun of the idea that the execution of someone who can factually prove his innocence "shocks the conscience" etc.) The fact that capital punishment has been thought to be constitutional for decades after Alcatraz was built is only relevant to the stare decisis question; it is entirely irrelevant to the textual question.

"The quibbling from the anti-death penalty side is mostly over the magnitude of the effect not the existance of the effect. "

False. Do you think we're not going to read people's links?

"And clearly, given Jes's post, the science is manifestly not settled."

Jes's post does absolutely nothing to call the science into question.

I will go through it line by line.

"Given that there is definite, concrete evidence from other countries that there's no effect on the homicide rate from banning or inflicting the death penalty"

This is an assertion which is completely unsupported.

"...I would want to know - if there are studies showing that there is such an effect in the US, what makes the US homicide rate so different from other countries?"

Here she is asking if other things might effect the homicide rate. Clearly the answer is yes, and that fact has nothing to do with the studies in question as they studied states as they moved in and out of death penalty regimes offering as much of a control group as is possible.

"The US has (this may not be the most recent figure - the government site is down) a homicide rate of 8.4 per 100 000: in the UK, where we haven't executed anyone since 1964, it's 1.97 per 100 000. For Scotland, which has the second-highest homicide rate in Europe, it's 2.33 per 100,000 - the last person executed in Scotland was hung in 1963."

See my comment above. This is irrelevant. The premise behind this statement is that the death penalty is the only important factor in play. No-one claims that.

"Since 1998, in the UK, there has been no death penalty permitted for any offense, including high treason and piracy. There has been no sharp rise in the number of homicides as a result (nor was there when the death penalty was abolished for murder in 1963). There has been a steady rise in the homicide rate (this graph adds notes explaining such things as an unusual apparent peak in 2002/2003, when all of Harold Shipman's 215 confirmed murders were added to the crime statistics for that year) but given the improvement in criminal detection over the same time period (and the rise in drug-related offenses) it's impossible to correlate this to removal of the death penalty."

First I'd note that contra the UK, the US homicide rate is down. Second tying the formal abolition of the death penalty for high treason and piracy to 1998 as if that made a statistical difference when I can't even find the last treason or piracy trial where the death penalty was likely to have been implicated anywhere near that date is raising a complete irrelevancy. The crimminal detection caveat is largely irrelevant as homicide doesn't usually need to be solved to be noticed. Shipman's particular case is different as his cases actually weren't obvious as homicides but the multi-year rise in homicides is not just due to the 2002/2003 spike gained from adding his in to the totals.

All of which has nothing to do with the whether or not the executions deter anyway.

"I confess: I do not follow the arguments in the link you provided. But they do seem to be focussing exclusively on the US, and ignoring the effects of the death penalty's repeal or imposition in other countries. (Australia is the classic example, where homicide rates remained relatively constant across different states regardless of whether the state had the death penalty, never had the death penalty, or repealed, re-instituted, and repealed the death penalty."

You seem to be focusing on the nominal existence of the death penalty rather than on actual executions. The de jure existence of the death penalty doesn't deter if it is never used. The studies don't make that claim. I've skimmed the Australian statistics you linked, and in its discussions I don't see the claim you make. Could you point it out? (And again I would ask about executions, not mere existence of the death penalty as a purely theoretical punishment). Though even as a theoretical punishment I note a sharp rise in homicides in the 10 years immediately after Australia's final aboliton, but I can't eyeball whether or not that has to do with other trends listed (or unlisted).

"So, presuming these studies showing a correlation between the state killing an alleged killer and other killers being deterred is accurate, why is the US different?"

They do. You haven't shown that it is. You've mostly shown that executions haven't taken place in other countries for quite some time.

We all knew that.


"In a debate at my law school on capital punishment, a police officer spoke about having to inform a family that a released murderer had killed again. Best argument I ever heard in favor of the death penalty (in policy terms, not legally)."

In policy terms, it works almost as well as an argument in favor of allowing the death penalty for parking violations, too.

No one will argue that there's a surer method for preventing crime than preventive killing of suspected future criminals.

But it's ultimately a useless point. In the end, if we nuke the entire planet from orbit, we'll prevent all crime save on the ISS, if we act quickly enough.

It's whether the trade-offs justify the use of the death penalty that matters, not that the death penalty is ultimately the most efficient means of preventing future crime by any given individual.

Would you agree, bc?

Also, let me second my strong support and enthusiasm for your presence here, and courteous argument and perspective, bc. Please tell all your like-minded conservative friends to come by ObWi, too!

As a general proxy for my opinion in this thread, I pretty much agree with Katherine and Phil at almost all moments, save that I urge them to work on avoiding personal comments, rather than comments on issues of policy, and I urge avoiding assumptions, let alone implications, of bad faith on Sebastian's or any one's else's, part, which are unhelpful, I suggest. I'm, myself, sure that Sebastian is arguing in good faith.

When people don't share assumptions, it's the easiest thing in the world to assume or suspect bad faith, and it's the easiest thing in the world for most of us, god knows completely including me, to become sliding into intemperate remarks and assumptions.

But much as it makes most of feel good to vent, and much as it's always infinitely easier to caution others, rather than exercise one's own patience, assumptions of bad faith will never help if one's goal is any kind of productive conversation.

And I'm very grateful to Sebastian for his patience in responding to so many people who do not share his assumptions.

Thank you, Sebastian.

And thank you, Katherine, for articulating so many of my policy/legal views so more better than I could, and for giving us the benefit of your legal knowledge and understanding, which is, of course, endlessly greater than the few crumbs I've gained over the years, myself.

"Based on the link I provided earlier, I don't think that's true. At least one paper argues that the deterrent effect is nothing more than an artifact of analysis, and that the analysis can easily show that the death penalty increases the murder rate."

Which link are you referring to? Death and Deterrence is a law journal article that essentially attacks the ability of Social Science to resolve the issue of deterrance. In that case the evidence katherine requests is just impossible to get. Of course you won't see that in a peer reviewed economics or Social Science journal.

You link to lots of law review articles, but so far as I can see no peer reviewed articles in any of the social sciences in question.

Bad faith?It depends on what you mean by faith. I think Sebastian believes the things that he is saying but most of them are false. I do not think very highly of his legal analysis, empirical analysis, or ability to comprehend rather than repeating bad parodies of counter-arguments ad infinitum. So, I find him to be arguing in good faith, but I do not find him credible, because he makes too many absurd claims. Equating the death penalty "science" to global warming science is just a laugher.

Sebastian: You've mostly shown that executions haven't taken place in other countries for quite some time.

And that the non-execution of murderers has had no effect on the homicide rate. You forgot that part.

First I'd note that contra the UK, the US homicide rate is down.

"Contra the UK"? In the UK, the homicide rate has in real terms been falling steadily. If you read the notes below the graph I linked to earlier: "There were a total of 765 homicide offences recorded in 2005/06, a decrease of twelve per cent compared to the previous year. The figure of 765 includes 52 homicide victims of the 7 July London bombings." (In the US homicide statistics, the homicide victims of the 2001 terrorist attack on 9/11 are massaged out of the figures.) I noted that there's an apparent peak: "Increases in homicides in recent years, and in particular 2002/03, have been influenced by the victims of Harold Shipman, whose deaths will have occurred some years prior to the period in which they were recorded."

The figures for 2000/2001 include another slight peak: which "includes 58 Chinese nationals who collectively suffocated in a lorry en route to the UK". Are all the Mexicans who die trying to get into the US illegally included in the US homicide statistics?

Sebastian, I honestly don't follow this theory that being presented about a correlation between the death penalty and US homicide statistics. For all I grasp about it, it may exist. If so, that's interesting.

But, as it's been demonstrated that no such correlation exists for other countries - that the homicide rate is far lower and falling in the UK, where we have not executed anyone for any reason since before I was born - there is a hole in the science if it can't explain why US homicide is different.

"Yeah, well, I'm married to an economics professor, & he concludes that people who use flawed regressions whose results are contradicted by other studies & change when you change the model, instrument & assumptions, as definitive scientific proof of causation, he concludes that they: (1) are being dishonest (2) don't know what they're talking about. So my respect for your approach to statistical analysis just comepletely nosedived, & we're just at an impasse where I just don't find you remotely credible anymore."

And you're attacking my reasoning?

Please directly answer the following question:

Did you ask him if those specific studies were "flawed regressions whose results are contradicted by other studies" before you decided to smear me or did you just make that decision based on the results?

The factual change is since 1789; I'm making a textual argument & I am countering your argument that various other clauses prove definitively that capital punishment is necessarily constitutional. (In addition to the fact that your argument ignores the text of the 9th amendment). Whether my textual argument is strong enough to outweigh stare decisis concerns is a separate question that I'm not sure of the answer to, as I've said maybe 6 times now. Probably not. Probably I wouldn't have done what Brennan & Marshall did. But I think their opinion is more defensible reading of the text than any # of Scalia opinions interpreting the 8th amendment (e.g. that lovely dissent about how prison guards handcuffing & beating people isn't cruel & unusual because the 8th amendment only applies to judicial sentences even though the text refers to punishment being "inflicted"; the opinion making fun of the idea that the execution of someone who can factually prove his innocence "shocks the conscience" etc.) The fact that capital punishment has been thought to be constitutional for decades after Alcatraz was built is only relevant to the stare decisis question; it is entirely irrelevant to the textual question.

Argh.

You said: "I'm appealing to changing facts: it was once practically impossible to incacitate people without executing them. It's not anymore. Why don't you actually try dealing with the actual argument for once?"

Correct me if I'm wrong, but doesn't this suggest that at one time we couldn't effectively incarcerate people but now we can?

You claim that this is so important that it is worth being a jerk about me allegedly not dealing with the 'actual argument'.

Wholly apart from the fact that you have never made this alleged fact central to your argument before (I don't even remember it in passing but I suppose it may have appeared as an ancillary point), what in the world are you talking about.

I assume you must be talking about some revolution in incarceration capability that took place in the 1960s or 1970s because that is when the Marshall/Brennan decisions were written. But maybe you think it was earlier. I mentioned Alcatraz only because it well predates the 1960s and it is evidence that we had a very good ability to incarcerate well before that.

Honestly it sounds like it should be a minor issue, but you both elevated it to the center of your argument and simultaneously attacked me about it so I'd like to know:

When was this incarceration revolution and what does it involve?

"Seb, before casting aspersions on Katherine's statistical abilities, would you mind telling us what your statistical training is? I vaguely recall that you work with statistics..."

I was a math and english double major in college before I decided to go into law. (Which may have been an unfortunate choice, when you work in law you have to deal with lawyers). I dropped the math major at the end of the second year having finished all of the routine statistics and analysis classes.

And I wasn't casting aspersions on Katherine's statistical abilities. In response to her groundless attack on mine I was merely trying to note that relative to her I actually do have real training in the area. I wasn't claiming enough expertise to shut down discussion or trying to appeal to my own authority. Merely noting that IN CONTRAST to her attack I do have training in the area and she really doesn't.

"Did you ask him if those specific studies were "flawed regressions whose results are contradicted by other studies" before you decided to smear me or did you just make that decision based on the results? "

We had a heated discussion about this several years ago. The peer reviewed study I specifically recall not finding a deterrent is by Steven Levitt & a couple others. He wasn't especially a fan of that & still less was he a fan of the instrumental variables one which had a ridiculous model. At the time, he said that the Stanford Law Review article by Donohue and Wolfers was the best of the lot. This isn't based on that discussion; this is based on general knowledge of how very dependent your regressions are on your assumptions, your model, your data set, etc. & how very wary you should be about claiming that your regression "scientifically proves" something when if you tinkered with your STATA programs a bit your result would change. I am not challenging those particular studies, I am saying that no one who knows anything--even secondhand! I'm no expert--about the way economists analyze things would claim them to be definitive scientific proof. Compare your characterization to Gary Becker's.

The argument you were ignoring is in para. 5-6 of the post above. It specifically refers to changes between 1789 & the present. Yes, I am making a claim that there was a factual change re: our ability to incarcerate between 1789 & the 1970s. This is one of several factors that I think undermines your textual arguments against Furman.

"And that the non-execution of murderers has had no effect on the homicide rate. You forgot that part."

Jesurgislac, I didn't forget that part. That is the part that is completely undemonstrated.

You are citing the lower murder rate in European countries. You're fine so far. But the magnitude of that difference outstrips the alleged difference of the death penalty effect. Which suggests that other factors are in play. You then say things like "And that the non-execution of murderers has had no effect on the homicide rate" which you have not demonstrated. And the links you have cited don't demonstrate (or even suggest) that either.

Now it may be (as katherine seems to suggest though I'm not completely sure) that social science techniques aren't really good enough to pick up that kind of thing. I'm actually fairly open to that argument as I think many modern statistical methods suck for the purposes we try to use them.

But that gets her nowhere in the constitutional argument because in that case the political community gets to decide such things. Legislatures are allowed to make policy decisions before all the evidence is in--hell if you don't let them, you can't ever get the evidence.

"Yes, I am making a claim that there was a factual change re: our ability to incarcerate between 1789 & the 1970s."

What was it?

When did it occur (approximately)?

I'm not trying to be rude. I have no idea why you believe that we had trobule incarcerating people in the 1800s. My understanding is that the main problem at the time was not that we had trouble keeping them, but that being imprisoned regularly led to a swift death due to disease (which was one of the reasons behind the requirement for a speedy trial). Again I raised Leavenworth and Alcatraz solely to show that we did have the ability to effectively incarcerate well before the 1960s.

"Compare your characterization to Gary Becker's."

I presume you mean this: "I can understand that some people are skeptical about the evidence, although I believe they are wrong both on the evidence and on the common sense of the issue. It is very unpleasant to take someone's life, even a murderer's life, but sometimes highly unpleasant actions are necessary to deter even worse behavior that takes the lives of innocent victims."

This was in 2005, before 4 of the more recent (and all showing stronger significance than the one he relies on) studies. So in 2005 he is confident enough to say that the he understands *that* people are skeptical but believes them to be wrong on the evidence. So he is saying that the evidence is clear, I took what you say is a step too far in saying that the matter is closed.

Ok. But you're still arguing against clear evidence.

So you win a debate point about me arguing too strongly, and then what? You are still left arguing against the weight of the evidence that capital punishment deters murder.

And in the interests of toning it down please read 'clear' as 'convincing' or some other such adjective.

Jesurgislac, I didn't forget that part. That is the part that is completely undemonstrated.

No, Sebastian. That is the part that is completely demonstrated. Abolishing the death penalty in the UK had no effect on the homicide rate. There is a mass of evidence, in countries round the world, that abolishing the death penalty does not affect the homicide rate.

You are asserting that these studies show that in the US, the abolition or imposition of the death penalty does affect the homicide rate. So, why is the US unique in this respect? I follow that you agree with these studies that show an effect in the US: but you are arguing dishonestly if you claim that any such effect has been shown in any other country.

"No, Sebastian. That is the part that is completely demonstrated. Abolishing the death penalty in the UK had no effect on the homicide rate. There is a mass of evidence, in countries round the world, that abolishing the death penalty does not affect the homicide rate."

Again for statistical purposes you need to make a distinction between formal abolition and declining executions. The claim is that executions deter murders you seem to be arguing against a claim that having the death penalty on the books deters (or doesn't).

And it may very well be that in the UK there was no effect. I certainly don't have the studies. But I haven't seen it, and the things you link which you purport to support that don't actually do so. I'm open to the evidence, and it would be fascinating if the the UK was different from the US in that regard.

You then say things like "And that the non-execution of murderers has had no effect on the homicide rate" which you have not demonstrated.

Sure I have. If not-executing killers had an effect on the homicide rate, as you allege, as countries abolished the death penalty, we would see evidence of that effect. Country after country round the world has abolished the death penalty, and the effect you allege exists is absent. I have pointed you at figures for the UK and for Australia, but feel free to go dig up the homicide figures for other countries which abolished the death penalty and see if you can try to find evidence of your alleged effect.

It would probably be more productive of your time to discuss why you think the effect exists in the US, if you're convinced that it does, even though it's been demonstrated that it works nowhere else.

I find that Stanford article very persuasive, to the point where it undermines the others. It is also clearly written & explains the statistical methodologies they use where they are completely opaque & jargon ridden & yet also seem extremely slapdash. So I don't agree with Becker. That said: there is a general conclusion that if you're talking about a "deterrence per execution" effect rather than a "deterrence by keeping it on the books" effect, the data & methods just aren't good enough to prove anything. I will stick with saying: no convincing evidence of deterrence, but to the extent that it's on the burden of people arguing it's cruel & unusual to affirmatively prove it's NOT a deterrent, that's impossible too. Of course, I don't think that's required, because I think the assumption that a gang member is sitting there calculating county sentencing statistics given how very much higher his risk of death from other factors is plausible at all.

Keep in mind: the peer reviewed v. not distinction really is about economics professors v. law professors. The best law journals in the country aren't peer reviewed; some fairly lame econ journals are. In general I think the peer review approach is better but you're not comparing the good studies v. the dross in a given field--you're comparing economists' studies to criminologists' & law professors. You might argue that economists are better at statistical analysis. But, it's a little complicated. Economics papers are not evaluated & placed based on how sound their policy conclusions are; a lot of it is about how innovative people find their theories & their methods. So, for instance, you don't necessarily get as much credit for using a large data set with a lot of observations as for a neat little model that is based on an extremely limited data set, even if the former is more likely to yield an accurate result. There's also a higher premium on an article that says: look, this regression either proves/disproves my hypothesis, than on a very meticulous, scrupulously honest article that says: "I tried this, this, and this and the data is just too much of a mess or too limited to draw any firm conclusion," even if the latter is actually more accurate. Economists aren't criminal policy analysts; that is not their primary concern. So they may have snazzier more complex math, but they may be asking the wrong questions & controlling for the wrong things if they don't know the field. (All this is leaving outside the possibility of ideological motivation, which of course one always suspects with lousy studies that confidently report "Illinois' moratorium killed 150 people!" based not on 1. an absolute change in Illinois' actual homicide rate, or 2. a change in Illinois actual homicide rate relative to the rest of the country. but 3. a change in the rate of change of Illinois homicide rate relative to the rest of the country. Various other questionable assumptions too.

I'm skeptical of Levitt's abortion study, too, btw. Obviously, I think economics is valuable, but there are very real limits--it's predictive power in the real world is not tremendous weak even in areas where the econ. literature is about 100x better developed than this one--& it's highly, highly susceptible to being reported in a way that does more to mislead people than anything else.

OK, here's the thing about the death penalty: It may, very well, have a deterrent effect. I'll even stipulate for argument that it's even at the high end of the range Sebastian alleges, that each execution deters 18 murders.

You know what? I don't care. I honestly don't.

We've had more than 200 years to get the application of capital punishment right, and we can't seem to do it. No matter what execution methods we use, no matter whether we separate the trial and penalty phases, no matter what kind of evidence we allow or exclude, we just can't get it right.

We still, after two centuries plus, cannot ensure that the death penalty as applied is done fairly and with the greatest rigor. We have a system in which minorities generally and black men especially are far more likely to receive death sentences than white men for the same crimes, when in a fair system the chances should be equally good (or equally poor) no matter what your skin color.

We have a system where the fastest way to get yourself a death sentence is to kill a white woman, when in a fair system the chances would be the same no matter what the gender and skin color of your victim.

We have a system in which we manage to keep convicting innocent people. And the only ones we know about for certain are the ones lucky enough to get someone like the Innocence Project to take on their cases, who have potentially exculpatory DNA evidence available, and who can get the courts to hear their cases. That's a vanishingly small proportion of death row inmates, and I bet there's a lot more innocents we haven't found who don't meet those criteria.

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.

Given all that, it's my feeling that, on Equal Protection grounds, if we haven't gotten it right by now, we ain't ever gonna. It may be unreasonable, but executing people is one of those things where, if we're going to give the state that power -- and make no mistake, it is a grant to the state by the people -- that I insist, absolutely insist, on an error rate of exactly zero. And if we can't achieve that, we don't get to do it at all.

So any deterrent effect is irrelevant frippery. This is not a topic on which society ought to tolerate systematic institutional unfairness, let alone egregious mistakes.

And that's all I have to say about that.

Katherine,
While I oppose the death penalty, I don't think your argument about modern methods of incapacitation or incarceration being able to prevent subsequent murders works, at least in practice. We have news reports of prisoners murdering prisoners and guards and even arranging murders outside prison via criminal enterprises. I'm not sure we really have perfected incarceration to eliminate all threats from an individual or member of a group.

Seb,
I don't think that majority support for the death penalty necessarily means the majority wouldn't consider it cruel and unusual. At least some of the people I talk to who support the death penalty think that it should be painful, slow, cruel and administered by the victims family.

Gary: Would you agree, bc?

I don't agree that my point was worthless (though anecdotal), nor do I agree that there is any crime on the ISS. And you assume I have conservative friends!

I do agree that the propriety of capital punishment is determined by the trade-offs you mention. That is why it is a policy question that is best handled by a legislature, not a court.

The disagreement over statistics is really a case in point. Would you want SCOTUS debating statistics unless each was married to an economics, statistics, or mathematics professor? Leave it to the legislature.

I agree. One of the things I think is just that horrific is a bunch of people getting together and coldbloodedly deciding to kill another human being who poses no threat to them, for no purposes other than vengeance and/or a statistical theory that maybe killing people like that will make other people safer.

I think many would take issue with the "pose no threat to them" part. I sure do. And your description, if it's intended to describe supporters of capital punishment, misses the mark. It looks like you are making a "moral equivalency" argument. I don't know how you can equate capital punishment of a murderer with the act of murder itself.

If it's just doing away with all killing, are you asking to do away with self-defense? What about police shooting a would-be murderer? How is the state condoning those killings different that capital punishment? Is the distinction all that great? Or are those not justified killings in your point of view?

Look, I appreciate the position that says "never kill." It shows respect and dignity towards human life. But don't assume that supporters of capital punishment do so because they DON'T value human life. The opposite is often true. The moral condemnation of some acts justifies the taking of life in the opinion of many supporters of the death penalty.

As per JayS's point I'm not so sure that incacertaion prevents murders -
Studies by the nonprofit Stop Prisoner Rape assert that 1 in 5 male prisoners is raped while in custody, and some estimates say one in four prisoners is HIV positive. so that gives us a lot of people essentially being murdered by murderers in jail let alone all the people murdered in other ways.

> We have a system where the fastest way to get yourself a death sentence is to kill a white woman

the key issue then is juries - you need to get rid of them. No jury will ever produce an unbiased decision - they are pretty much set up to be biased.

so that gives us a lot of people essentially being murdered by murderers in jail let alone all the people murdered in other ways.

GNZ, the vast majority of people in prison are not murderers, which suggests to me that even if we executed all murderers, the rape rate in prisons would not decrease significantly. There were 17,000 murders committed last year and there are very roughly 2 million people in prison - the gap here is just too large to believe that murderers are more than a drop in the bucket. Of course, prison rape is a real problem, but there's no point in pretending that its primarily the fault of murderers.

the key issue then is juries - you need to get rid of them. No jury will ever produce an unbiased decision - they are pretty much set up to be biased.

Have you ever met an unbiased judge? Or an unbiased district attorney? Or an unbiased taxpayer base that is willing to fund indigent legal defense at the same rate they fund prosecutors? Also, since judges are expected to overturn problematic judgments made by juries, if juries are the problem, shouldn't we see judges tossing out jury judgments at much higher rates in these cases than in other types of cases?

You may very well be right, but (and I'm sorry for being so repetitive) I can't accept that conclusion without seeing some evidence that juries play a larger role in this problem than other aspects of the criminal justice system.

"We have a system where the fastest way to get yourself a death sentence is to kill a white woman"

I'm sure every regular but me knows this to be true, but please humor me with a link?

> even if we executed all murderers, the rape rate in prisons would not decrease significantly.

death penalty is rarely an automatic reaction for murder, and it certainly isn't in the US system and yes it wouldn't solve any problems (problems are never that easy to solve).

All it points out is that certain antisocial people are an issue even in prison, possibly a very significant issue.

If I was a politician I'd be reluctant to go with the death penalty option because it would be like putting blood on my hands - and yet, with some people, I'm not so sure sending people to prison, or letting murderers remain free leaves them any cleaner just because the link of causation to the harm they cause is ever so slightly more distant.

> Have you ever met an unbiased judge?

you could establish systems to deal with that, consequences for incorrect rulings etc - but the jury system makes that almost impossible - you can't create very effective reward structures or training for juries to check their own biases.

I also note there appear to be a huge number of incorrect rulings by juries for example where it is later proven the convicted person must be innocent via DNA etc.

> if juries are the problem, shouldn't we see judges tossing out jury judgments at much higher rates

the judges job is to throw out based on procedural errors not some unstated bias against black men (etc), or to correct judgements they think are wrong. That leaves a very wide range within which they can apply bias.

I think the judge system is superior but much more importantly it could be made to be very effective with some effort - while the jury system is almost impossible to improve.

bc: I think many would take issue with the "pose no threat to them" part. I sure do.

Why? We're talking about someone who has been convicted of murder. They're in jail. In a properly conducted prison system, that means this person cannot post a threat to anyone outside jail, ought not to be released on parole until it is certain that they will pose no threat to anyone when they are free, and proper supervision and due care should ensure they pose no threat to anyone inside jail.

Killing a convicted murderer is not done to terminate a threat in any country with an adequate prison system. If the US's prison system is inadequate, then perhaps Americans should look to devoting more resources to it, rather than advocating killing people sentenced to it.

(That aside, there is the plain fact that in any country with an imperfect justice system - and I wouldn't trust any country that claimed to have a perfect justice system - execution runs the risk of killing another innocent person, and ensuring that the real murderer goes free and uninvestigated.)

But don't assume that supporters of capital punishment do so because they DON'T value human life. The opposite is often true.

If so, that's because supporters of killing people have not managed to think through how they reconcile both values - wanting to kill people for vengeance, or in revulsion for what the court says they've done: and claiming to feel an inherent value in human life. Respect for human life, clearly thought through, must require opposition to the state killing people via the court system. If nothing else, because a thoughtful person must acknowledge that if the justice system is allowed to kill people, sometimes it will kill the wrong people.

I have a slight objection to Sebastian's claim that "a case of murder has not to be solved to be noticed" in connection with progress in forensic science. I can't provide a link but I heard/read quite disturbing estimates about the dark figure for the crime of "killing a human being". This is partly due to neglicence/incompetence of those writing the death certificates (e.g. cases were the undertaker finds the dead to have been stabbed while the certificate says "natural causes") and the "no suspicion, no enquiry" principle. There are reputable forensic experts that believe that for example murder by poison is detected only in a minority of cases (some cases of multiple black widows seem to corroborate that) and only, if the murderer makes a serious mistake (or in serial cases statistics come to play).

Hmmmmm, maybe non-US murderers are simply more sophisticated and the actual rate is similar. Is posion covered by the 2nd amendment? ;-)

the key issue then is juries - you need to get rid of them. No jury will ever produce an unbiased decision - they are pretty much set up to be biased.

Um, no, the key issue is that district attorneys and prosecutors are more likely to seek the death penalty in the first place against certain types of offenders and for certain types of victims. If the prosecution isn't seeking execution, neither a judge nor a jury can deliver it as a punishment.

Slarti, I'll dig up the links later today. It will take me some Googling since I don't keep them handy anywhere, but if you're inclined you might be able to find them on your own as well. I do know from memory that being black makes it between 2.5 and 4 times more likely that prosecutors will seek a death sentence. I don't recall from memory the stats based on type of victim.

I should have added, the best way for a murderer to avoid capital punishment is to be a white woman when, again, in a fair system it wouldn't matter at all. As a percentage of their representation among all murderers, women are almost never sentenced to be executed.

Slarti, I'll dig up the links later today. It will take me some Googling since I don't keep them handy anywhere, but if you're inclined you might be able to find them on your own as well.

I tried, but gave up. You know how sometimes Google gives you the haystack and the needle? This was one of those times.

The question of relative populations of blacks as compared to whites on death row I'll take as a given, but that wasn't what you said. And I asked, just to be clear, not because I'm disputing you, but because if that is indeed a fact, it'd be good to know for certain. And contrariwise, too.

Either way, thanks for responding.

Yeah, it's infuriatingly hard to find this stuff all in one place, especially if I don't bookmark it later. (More fool me, I guess.) I'm still looking for the stats that show death penalty rates by race and victim of gender, but I did find this that tells at least part of the story:

Questions of whether or not the death penalty was applied fairly along racial lines surfaced in McCleskey v. Kemp. McCleskey argued that there was racial discrimination in the application of Georgia's death penalty. As evidence for this claim, McCleskey presented the results of an extensive statistical study by Professor David Baldus of the University of Iowa Law Schooland his colleagues. Baldus’ study collected information about all the capital defendants in Georgia—whether or not they were sentenced to death. This information allowed the researchers to control for hundreds of variables about the offender, victim and crime—thereby permitting a statistical comparison of cases in order to see what factors influenced whether a person was sentenced to death. Professor Baldus found, among other things, that:

-- Fewer than 40% of Georgia homicide cases involve white victims, but in 87% of the cases in which a death sentence is imposed the victim is white. White-victim cases are roughly eleven times more likely than black-victim cases to result in a sentence of death.
-- When the race of the defendant is added to the analysis, the following pattern appears: 22% of black defendants who kill white victims are sentenced to death; 8% of white defendants who kill white victims are sentenced to death; 1% of black defendants who kill black victims are sentenced to death; and 3% of white defendants who kill black victims are sentenced to death. (Only 64 of the approximately 2500 homicide cases studied involved killings of blacks by whites, so the 3% figure in this category represents a total of two death sentences over a six-year period. Thus, the reason why a bias against black defendants is not even more apparent is that most black defendants have killed black victims; almost no cases are found of white defendants who have killed black victims; and virtually no defendant convicted of killing a black victim gets the death penalty.)
-- No factor other than race explains these racial patterns. The multiple-regression analysis with the greatest explanatory power shows that after controlling for non-racial factors, murderers of white victims receive a death sentence 4.3 times more frequently than murderers of black victims. The race of the victim proves to be as good a predictor of a capital sentence as the aggravating circumstances spelled out in the Georgia statute, such as whether the defendant has a prior murder conviction or was the primary actor in the present murder.
-- Only 5% of Georgia killings result in a death sentence; yet, when more than 230 non-racial variables are controlled for, the death-sentencing rate is 6% higher in white-victim cases than in black-victim cases. A murderer therefore incurs less risk of death by committing the murder in the first place than by selecting a white victim instead of a black one.

All emphases mine. ISTR that this pattern holds true nationwide, not just in Georgia, which this particular study was limited to, and will deliver those stats as I find them.

Is this data controlled for the racial composition of the jury pool? I would assume that most black on black murders occur in majority black jurisdictions, and most white on white murders in majority white jurisdictions; Perhaps prosecutors are responding to a disinclination of black jurors to impose the death penalty?

Jesur,
I'm not sure that putting an innocent person in jail for the rest of their life (to be raped and whatever else you allow to go on in there) is really that much better than killing them. Of course your right the prisons should be made better - but one has to base one's current policy on the current situation because the combination of the two is the result you will get.

> the key issue is that district attorneys and prosecutors are more likely to seek the death penalty.

it is easy enough to put incentives in place (if they are not already) for the prosecution to go for the maximum penalty. But if they know the jury wont convict because of the demographics of the people involved then they are wasting their time to go for the death penalty. A mistake like using juries causes problems all over the justice chain.

GNZ: I'm not sure that putting an innocent person in jail for the rest of their life (to be raped and whatever else you allow to go on in there) is really that much better than killing them.

If an innocent person has been jailed for a crime they did not commit, so long as they are alive, they have the chance of justice. Kill them, and they no longer do.

I don't think it ought to be up to you, or anyone, to decide that it's better to kill an innocent person than to let them continue to strive for justice.

Is this data controlled for the racial composition of the jury pool?

Why don't you check it out yourself, Brett.

I myself would be surprised if someone who thought of controlling for lots of other things, and who was studying racial disparities, hadn't thought of that. Very surprised.

it is easy enough to put incentives in place (if they are not already) for the prosecution to go for the maximum penalty.

And yet everything we've tried over the last two centuries in capital punishment jurisprudence hasn't erased these inequalities.

But if they know the jury wont convict because of the demographics of the people involved then they are wasting their time to go for the death penalty.

You know, prosecutors regularly strike people who are opposed to the death penalty during voir dire. They don't even have to ask them any other questions. And they have to decide whether to seek death or not before the jury is even empaneled. So, having decided to seek the death penalty, how likely do you think it is that the problem really lies in the demographics of the jury?

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

Damn that pesky Constitution!

> If an innocent person has been jailed for a crime they did not commit, so long as they are alive, they have the chance of justice.

No they can never get justice - you can't give them back 10 or 20 or more years of their life.

You cant 'un-rape' someone or 'un-beat them up' all you can do is hurt some other person in exchange or throw some money at them, but it would always be rather like being given insurance money after your child got killed.

worse yet if that leaves them in a state of wishing they were dead.

>I don't think it ought to be up to you, or anyone, to decide that it's better to kill an innocent person.

The problem is that inaction is also a decision.

So take two examples
1) if a justice system decided not to do something it knows would protect innocent people or
2) if a doctor decided not to provide treatment to a critically ill patient.

that it is inaction (with an associated duty) as opposed to action doesn't make it all that much better to me.

No they can never get justice - you can't give them back 10 or 20 or more years of their life.

No, but they can be released and their innocence publicly confirmed. I don't see that it's up to anyone but that person to decide which.

worse yet if that leaves them in a state of wishing they were dead.

If someone in prison decides they would rather be dead than wait any longer for justice, I would guess that they can find a means of killing themselves. It is very hard even in Guantanamo Bay to stop a person who is determined to die.

Concern for prisoners' welfare is admirable. Concern for prisoners' welfare that gets as far as deciding it's better that innocent prisoners should be killed rather than have to suffer the horrors of a US prison, is pretty much pointless.

The problem is that inaction is also a decision.

Yes. The inaction of the American public with regard to the horrible conditions many prisoners in the US prison system suffer, is a decision.

1) if a justice system decided not to do something it knows would protect innocent people or
2) if a doctor decided not to provide treatment to a critically ill patient.

I agree. The US justice system (considered for the sake of shorthand as an entity in itself) has decided not to do something it knows would protect innocent people:
- Not to improve the conditions of the US prison system
- Not to work for the abolition of the death penalty

This is an inaction, a failure to do something that it knows would protect innocent people, and yes, I do see it as exactly as bad as a doctor refusing to treat a critically ill patient.

As noted above: killing prisoners who are already in prison has nothing to do with "protecting the innocent".

I am just that there is something in the dilemma, moral issues to weigh up and so forth. That it is not quite as simple as "lets not kill people".

As to suicide - most people who attempt suicide fail and are well past wanting to die by the time they actually try to die (yes people are irrational). still if your willing to facilitate their suicide in a 'death with dignity' sort of a way then you have a solution of sorts.

> Yes. The inaction of the American public with regard to the horrible conditions many prisoners in the US prison system suffer, is a decision.

yes indeed. I think it needs to be fixed as does your system that convicts too many innocent people - hence my suggestion you get rid of juries amongst a wide range of other things.

> Not to work for the abolition of the death penalty

yes that is an inaction too, and depending on ones position in this debate may amount to a sort of murder by inaction - of course thats yet another step removed.

> killing prisoners who are already in prison has nothing to do with "protecting the innocent".

To continue with the effort to help with understanding - a lot of people who support it or do it think its a deterant, and think it frees up resources for other things and protects guards from exposure to these people etc even if they happen to be mistaken.

As to the wider effect on innocent people I guess the negatives on the balance sheet have to come from the fact that your prisoner might be innocent (because as a death penalty supporter would say "a dead criminal harms no-one")- which comes back to how inferior the justice system is.

What if one killed only those with 100% evidence that they are guilty? I don't think that changes your mind - so I guess innocent is not really on your radar either.

GNZ: As to suicide - most people who attempt suicide fail and are well past wanting to die by the time they actually try to die (yes people are irrational). still if your willing to facilitate their suicide in a 'death with dignity' sort of a way then you have a solution of sorts.

I'm dubious about facilitated suicide for any reason other than imminent death from natural causes - ie, if you have cancer and are going to die painfully in six months and are opting to die painlessly now.

I oppose capital punishment, for a whole bunch of reasons, but I suppose in theory if people who were pro capital punishment were willing to accept that people condemned to die should be given the option of a painless facilitated suicide, that would resolve at least the moral issue of the state employing people to kill people. If someone who had been condemned to death were not willing to take the overdose themselves, well, then they're reprieved.

If you recall (read upthread) you had asserted that it was better for an innocent person condemned to life imprisonment to die, so it was OK for the state to execute an innocent person. I pointed out that if that were so, that person has the option of killing themselves - because even in Guantanamo Bay, where prisoners are held securely beyond justice, hope, or freedom, a few have succeeded in escaping via suicide.

Your claim that it's juries that are responsible for convicting so many innocent people won't hold up, I believe. To prove it, you would need to show that countries that don't permit trial by jury have a higher rate of accurate convictions than countries that do. Can you show this?

- a lot of people who support it or do it think its a deterant,

Yes, but they're wrong, demonstrably so. Killing people just because some ignorant people think that killing is a "deterrent" is about as wrong as allowing human sacrifice for religious purposes. Indeed, it's about the same thing: it's killing people to indulge a superstitious belief.

and think it frees up resources for other things

So it's okay to kill people to save money?

and protects guards from exposure to these people etc

Ah, now there's a point. Of course, killing people requires the state to pay some people to have the job of killing people, and that I think is something that people deserve to be protected from. The state shouldn't hire people to have the job of killing people in cold blood any more than the state should hire people for the job of torture or rape.

If there is interest in helping prison guards, a better system would be to improve US prisons and pay and train guards better.

What if one killed only those with 100% evidence that they are guilty?

I don't trust anyone who claims their justice system is perfect, because no justice system is perfect. It's not within the realms of human possibility. So a person who claims they kill only people who are 100% definitely guilty, is merely saying that they aren't even willing to examine the possibility that they are, in fact, killing innocent people. There is the added factor that (again, noted above) that the death penalty is applied unfairly - that two people, proved guilty of equally heinous crimes, may live or die depending on the ethnicity of the person they killed.

> better for an innocent person condemned to life imprisonment to die.

Potentially it would be so of course not by definition - some people even like prison - strangely...

> To prove it, you would need to show that countries that don't permit trial by jury have a higher rate of accurate convictions than countries that do.

there are complicating factors at play here not the lest of which being, countries have factors that are different besides the system of justice (for example wealth) and if we knew all the false convictions across all countries then we wouldn't have a problem.

However I'm surprised by why you would think juries would have less false convictions. Judges can be biased but so too can juries and judges can be incentivised not to make errors. Judges can be trained or become experienced at detracting liers, judges don't need to be protected form evidence like lie detector results because they might irrationally overestimate it and the list goes on. Judges would have to be very much more biased than juries to balance out those factors - and that is ignoring the potential to improve the system.

All juries seem to protect you from is some sort of potential for a class war or some small subset of bias that relates to the demographics of judges (which is an issue of course - but one that should be possible to resolve without lowering the system to the level of a jury if it is indeed significant)

> Yes, but they're wrong, demonstrably so.

Your claim was that it was not "about" protecting the victim. I'm just saying in the interest of understanding the other side, that they want to protect victims - even if they may be factually wrong. I expect as a matter of fact that the death penalty is a disincentive above life in prison - but not much more (because criminals tend to be more concerned with catch rate than punishment) and much less in the US than in other countries like china as a result of how it is done.

I think you are putting forward my position here which is the good or bad of the death penalty is a matter of making a logical conclusion based on facts - as opposed to a moral absolute. And my conclusion from that is "I would consider it based on all the evidence". The fairly limited effectiveness as a deterant is one thing to consider.

> I don't trust anyone who claims their justice system is perfect

It was a hypothetical - but I was thinking of those cases where there is video evidence DNA evidence and admission of guilt from the murderer. Still not OK with it?

> two people, proved guilty of equally heinous crimes, may live or die depending on the ethnicity of the person they killed.

indeed - jury.... I could get a list of judges and look at their odds of convicting white and black men (and the evidence, and the rate of being overturned on appeal) and hurt those that convicted too many black men - but a jury? you can't do anything.

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