Salon Redeems Itself

by publius

I'm in the midst of deadlines, etc., but I wanted to note that Salon has published a new essay by Professor Lee Kovarsky, who guest posted here a while back on the Court's most recent habeas decision. 

In light of the recent New Yorker article arguing convincingly that Texas executed an innocent man, there has been a renewed focus among death penalty opponents on conclusively exonerating an already-executed person.  Kovarsky explains, however, why this focus is misplaced.  In short, the death penalty sucks for many other easily-established reasons.

It's a good read.  As a disclaimer, he's also a friend, but you should still read it.

Comments

[Roger Moore]

The only problem with his argument is that it ignores human nature. The statistical case that we've executed at least one innocent person is just as open and shut as he says. But that's a dry argument, and most people's eyes will glaze over before you've finished with it. An actual, specific wrongly executed person would make a much better narrative. People who can easily ignore the statistics will have a much harder time ignoring an interview with the widow or children of a wrongly executed man

[Hartmut]

Any argument will only reach those that follow the philosophy that it is better to let one (or more) guilty go free than to punish a single innocent. Those that think that eggs have to be broken to make an omelet and that getting all guilty is more important than a few suffering innocents will not be impressed. And then there is the 'Kill 'em all. God knows his own' so popular with certain Kristians(TM). Not to forget the professional repressers: "(S)He was probably guilt of something".
Cynic that I am I think that those groups plus those simply indifferent are a majority (at least in the US) and will be for the time being.
Unlike our libertarian friends here I believe that the only way is for legislators to ignore that majority and to abolish capital punishment in order to demonstrate that the world does not come crashing down as a result. I think experience shows that consent will follow within a few years while it will not, if the step is not taken. The fair thing would be to make a test for, let's say, 10 years and then to revisit the decision, so people can make comparisions. (unfortunately this would not work in reality because the question will be demagogued to, literally, death).

[markusnagler.wordpress.com]

@Hartmut
I imagine "that could have been you or someone you know" would work with some of the people you describe. Also, the alternative is not "going free" that's a different debate about the reach of criminal investigations and one's day in court, one in which e.g. Miranda skews things very much in favour of letting some criminals escape in order to avoid convicting innocents. That debate is pretty much over unless you're suspected of being a terrorist.
The death penalty is just about sentencing and IMO the relevant dimension here is people's willingness to use criminal law to be vengeful and to inspire fear versus those interested in impartial justice.
In that light, I think the massive influence of Christianity and it's US-specific focus on the old testament showing a God of wrath and fury is the pivot. Culturally we win this one to the extent that we're able to convince people that Jesus teachings of love, mercy and forgiveness are more important.

There are states without a death penalty statute, so the evidence, that the sky doesn't fall if one stops executing people is already there.

That said, I do think there's a bit of magical-silver-bullet-thinking behind the search for the one innocent person wrongfully executed.

[kovarsky]

I do most of my capital work in Texas, which is like the land without hope. But I do have to say, there are signs of hope. On the Supreme Court, Kennedy has clearly drifted away from Scalia over the last 10 years. Even in Texas, Fifth Circuit judges that would have NEVER voted for certain kinds of habeas relief in a close case (e.g. an Atkins claim) are starting to do so. I think Indiana is about to become the first death penalty state to bar the execution of the mentally ill.

DNA evidence is making an enormous difference. DNA evidence is of course useless in many cases, but there are many others in which it is really undermining claims that our system of punishment is accurate. For example, in cross-racial rape convictions, which rely on testimony that notoriously unreliable because white people have a harder time distinguishing between black people and vice versa, are really being exposed as a serious problem. In those cases, where a prisoner is convicted based on a primitive blood-typing or serology exam, the power of DNA to conclusively exonerate does, I think, ripple through the entire system of criminal adjudication and sentencing.

I guess what I'm saying is that I hope it's not hopeless. I hope we can get people to see that the question of whether it's necessary to kill 1 out of, say, 25 people wrongly in order to administer criminal justice, in a new light. The question is not whether the error of 4% is acceptable, but is it acceptable to fail to use societal resources to decrease that rate of error. In other words, get people to think about society as paying for accuracy, and whether it's worth the cost.

[Hartmut]

The magic bullet would be to have a prosecutor (or two or more) who knowingly caused the death of an innocent convicted of murder and executed.
Unfortunately it is possible to build one's political career on the bodies of convicts in some parts of the US and I have heard of rivalries between ambitious prosecutors vying for an elected office that turned into a "Vote for me for I achieved more and more severe convictions than my rival" campaign*.
And then there are the legal professionals that allegedly boasted that they could have anyone convicted, innocent or not (such guys exist as long as the legal profession itself). As long as a prosecutor can be painted as a loser for not achieving a conviction (again independent of guilt or innocence of the defendant), the system will stay sick.
I think the absence of the death penalty in one region does not have much effect on the people in the pro-death regions for at least two reasons. It can be dismissed as "their situation is different, we need capital punishment for our much more dangerous criminals" or "these cowardly crybabies are so weak, they don't even have the balls to free the world of this scum" (replay updated Willie Horton ad).

*sorry, no link at hand. I might have read it in the "what real event inspired this book" section of a novel on the topic but I am not sure.

[wj]

Hartmut, I think there is one other argument which might reach some people who otherwise are OK with the death penalty: it just costs more. By the time you get thru all of the mandatory appeals, etc. the state has ended up spending significantly more than they would have if they just sentenced the individual to life without parole and held him permanently. At that point, the ability to reverse (however belatedly) a mistaken conviction is simply a bonus.

Fiscal responsibility in sentencing -- what a concept!

[Nigel]

>>For starters, the death penalty is not colorblind<<

The entire US criminal justice system is not colorblind, so that is not an argument against the death penalty per se.

>>some jurisdictions are derelict in enforcing Eighth Amendment restrictions on capital punishment<<

Again, vile though that is, I don't see that's an argument against the death penalty per se.

>>There is something unsettling about the very idea that posthumous exoneration is a burden that death-penalty opposition must assume.<<

Agree entirely.

>>But when we evaluate the institutional implications of wrongful executions, why is identity so important?<<

Because people care about individuals, not abstractions.

>>But the "innocence" critique need not have a face to be right.<<

Again, I entirely agree, but unless death penalty opponents can make a case which convinces emotionally, as well as rationally, they won't succeed.

[Ed Haines]

Ultimately, there is (to me) only one argument needed against capital punishment. That is that the state should not engage in violence except in defense of an active threat. Murder of a helpless victim (execution) is the ultimate violence and there is no place for it in a civilized society.

[wades]

I think Kovarsky is wrong.

While the death penalty system in the US is awful for all of the reasons he describes, those reasons evidently don't cut ice with too many people. If enough posthumous exonerations could be lined up (it would probably take more than one) it'd be a lot easier to make the argument stick that "It's better to let 1000 Ted Bundys rot in prison than to execute a single innocent."

A lot of support for the death penalty currently rests on the perception that procedures are adequate to keep innocents from being executed. Unambiguous proof to the contrary would change at least a few minds.

[liberal japonicus]

People here may be interested in this Irish Times article about Sakae Menda, who was released from death row in Japan after 34 years.

[Hogan]

By the time you get thru all of the mandatory appeals, etc. the state has ended up spending significantly more than they would have if they just sentenced the individual to life without parole and held him permanently.

The problem is that that works just as well as an argument for limiting appeals (even further).

[Phil]

I imagine "that could have been you or someone you know" would work with some of the people you describe.

In my experience, the usual retort to that is, "I and my family would never be in a position where we would be suspected by the authorities of this crime."

[Hartmut]

wj, Hogan, the cost argument is made by both sides but I think the pro-death side is the most cynical there. I have read arguments (and there might even have been a bill proposed in at least one state) that there should be NO legal appeal against death sentences (whith appeals against lesser verdicts still possible) backed with the sole reason that otherwise capital punishment would be too expensive. I guess that's the same kind of people that come up time and again with demands that prison inmates should be charged for their stay (the last proposal I read of was 95$/day!!!).
I have some sympathy for the old joke that capital punishment should be introduced for those that propose the introduction of capital punishment.

[kovarsky]

i think some people are missing a fairly important point -

even if you look at the New Yorker article, the end result is almost always going to be indeterminate (except in some DNA cases). we can use posthumous investigation to say that the likelihood that we killed the right guy was about 50%, but we're rarely going to meet the "clear and convincing" test scalia suggests for a particular offended. but if you can identify 20 offenders that you've executed with only 50% confidence in the accuracy of the sentence, you've still killed 10 people. so yes, critiques about innocence ARE very important. what i object to is the idea that we go about measuring innocence by the ability to specifically identify a person executed wrongfully with certainty.

and i think we exacerbate the problem when we pretend like the innocence critique comes down to a question of identifying a specific offender. you can have a great innocence critique if you are more focused on collecting 20 cases like willingham and saying that, statistically, 10 of these guys have to be innocent.

there is already unambiguous proof that we execute innocent people, is my point.

[Bob L.]

Kovarsky: "if you can identify 20 offenders that you've executed with only 50% confidence in the accuracy of the sentence, you've still killed 10 people." No, actually you've killed 20 people. Statistically, it's most likely that 10 were guilty and 10 innocent.

What's actually being hypothesized here is a kind of reverse Russian roulette, in which everyone takes a bullet even though half of them shouldn't have been in the game to begin with.

And speaking of 50-50, Grann's New Yorker article discusses another case so much like Willingham's that it's almost as if they're the same case with two sets of names. The defendant in that other case was released from death row and prison because the prosecutor concluded that he was innocent. But the prosecutor in Willingham's case lacked the intellectual flexibility to see how flimsy the case against Willingham was.

On the other hand, and having lived in Texas myself for several years, I find it hard to believe that Texas will be the first state to exonerate someone who was executed for a non-existent "crime." And that's a terrible shame, because if there's one place in this country that needs to face up to its shameful past in this regard, it's Texas. (I live now in Virginia, which does its best, with its smaller population, to compete with Texas in sheer bullheadedness about death penalty cases.)

I'm no Christian, but I do wonder how, in a country that so many people insist is a "Christian country," Jesus' teachings of love and mercy are so consistently flouted by almost the entire "justice" establishment.

[cleek]

the Constitution doesn't guarantee you the right not be executed for a crime you didn't commit, so long as the proper procedures were followed.

/scalia

[xanax]

Actually, of those 20 "hypothetical" executions, according to the 50-50-90 rule, you've actually killed 18 innocents.

[xanax]

Umm... clean-up on aisle three.

[hairshirthedonist]

>>For starters, the death penalty is not colorblind<<

The entire US criminal justice system is not colorblind, so that is not an argument against the death penalty per se.

>>some jurisdictions are derelict in enforcing Eighth Amendment restrictions on capital punishment<<

Again, vile though that is, I don't see that's an argument against the death penalty per se.

Purely in the abstract, you may be right, Nigel. That's cold comfort for the wrongly executed and their families, though.

To me, these problems outside the death penalty itself are severely exacerbated by the death penalty. I understand what you mean, I think, in that, if these problems didn't exist in the first place, the death penalty couldn't make them worse, so it's not really about the death penalty (per se). But, then again, so what?

[Prup (aka Jim Benton)]

This is the sort of argument thqat is partially responsible for the head-shaped indentation on the top of my desk. ALL of the above arguments are both valid and valuable -- okay, except for John J.'s obnoxious intrusion -- yes, we've heard the word before, yes, we are properly shocked, now go away, your fifth-grade teacher is calling you.

But isn't it simply silly to get excited over which is the 'one, right, true, effective' argument, which is the 'best'? If all the arguments are true -- and they are -- the 'best argument' is the one the speaker/writer is most comfortable with, and the one (s)he thinks is most effective with the audience he is addressing.

Some people will be moved by one type of argument and not others. (And there are plenty more to choose from. "Deterrent? Not only has it not shown to BE a deterrent, if someone has already committed a murder, what is there to "deter" him from killing any possible witness since it doesn't add to his punishment."

(I'd even consider a flat-out appeal to the revenge motive. "Look, if you kill him, it's over for him. Wouldn't you rather see him live a long, painful, constrained life, every minute of which he is reminded of what he did to your loved one?")

The important thing is to get the result, not to argue 'which is the best one.'

(And, btw, why do so many fellow liberals feel it is somehow more desireable to find a 'one size fits all' argument, that it is somehow dishonorable to -- while remaining strictly honest -- shape and choose your argument for the audience you are attempting to reach?)

[Prup (aka Jim Benton)]

As for the 'moratorium idea', we've already tried that. There was a moratorium for several years. The sky didn't fall, but the Right rose, and got it reinstituted. And, sadly, the strongest argument I have with president obama is his support for the death penalty -- and I was horrified that he even suggested extending it to particularly horrible crimes other than murder. (In fact, the most shocking to the community a crime is, the more police and DAs feel pressured to 'get it solved.' These types of crimes are probably the ones most likely to caue the onviction of innocent suspects. Prof K, any figures using that -- maybe statistically, number of column inches in the local papers -- or percentage of the 'newshole' -- in cases later overturned?)

[_]

_

[Julian]

"White people convicted of murder are no more likely to receive the death penalty than blacks convicted of murder."

I'd be interested to see something besides your opinion supporting that assertion.

[Nombrilisme Vide]

Fix'd?

[Nombrilisme Vide]

Ugh. That's some obnoxious trolling, there. Can an admin delete the 12:56 post by _ that appears to have been made for no reason but to add open italics and bold tags?

[kovarsky]

Re: the correlation between the offender's race and the victim's race.

The best data on this comes from various studies (and one in particular) by a professor named david baldus, who has collaborated with various statisticians. It IS true that the race of the victim often predicts a capital sentence more strongly than the race of the defendant, but some of these studies still show that a black defendant is 4 times as likely to receive the death penalty for the same crime as a white defendant.

The critique from the other side is that you can explain the difference on the "race of defendant" question in terms of variables that correlate with race, but that are not race itself. The contotions necessary to make "race of the defendant" a bad predictor of a capital sentence are pretty extreme, and I don't really buy the argument, but it's there.

[cleek]

lemme try

[Bob L.]

A couple of thoughts --

In general, a "plain old" murder is not a capital offense -- some enhancement is needed. (This is the distillation of a lot of SCOTUS decisions on that topic.) So someone who kills Victim A may not be subject to capital punishment but may become subject to it if he kills a second person, like the witness to the first killing. Somehow, though, I doubt that the average murderer consults his criminal law textbook before deciding whether to kill that second person.

And speaking of the execution of innocents, consider reading *The Airman and the Carpenter*, by Ludovic Kennedy. Okay, it's obviously a brief for the defense, but the facts and conclusions sure seem accurate -- and anyone who can remain persuaded about Hauptmann's guilt beyond a reasonable doubt after reading that book must be a Texas appellate judge.

[Nombrilisme Vide]

John, did you just reopen those tags? That pretty much destroys any credibility you might have regarding arguing in good faith here, as it's an intentional move plainly intended only to disrupt conversation.

*sigh*

[cleek]

mm k...

[Bernard Yomtov]

if you can identify 20 offenders that you've executed with only 50% confidence in the accuracy of the sentence, you've still killed 10 people.

No doubt you meant 10 innocent people, on average. Another calculation shows that the chance that all 20 were guilty is one in a million.

A more convincing way to make the point, because it really is counterintuitive, is to show that even with a high degree of accuracy innocent people will still be executed.

If the chance of convicting an innocent is 5%, then after 50 trials the chance of having convicted at least one innocent is about 92%. You can do these calculations forever. The basic result is that even very unlikely events occur with surprising frequency if you give them some chances - fewer than you might imagine would be needed.

[publius]

John J - I would really prefer if you didn't use those terms. I'm not going to delete b/c I read them as making a substantive argument. And I don't want to censor that type of stuff.

But we would appreciate it - -use asterisks if it's absolutely necessary

[liberal japonicus]

Whose IP address was the 12:56 comment? And was it the same as the 1:06 in this thread? Once is an accident, twice in different threads should get someone the boot.

[Nombrilisme Vide]

John, given that your 2:08 comment contained neither italics nor bold, but it left both tags open, it defies credulity that your leaving an open italics tag at 3:52 was accidental.

[cleek]

W.T.F.?

someone needs to learn HTML.

[Marty]

"I was just describing how people in Texas talk, as Publius surely knows."

I will make my obviously useless objection to this statement. I was born and raised in Texas and in three generations I have never heard the word in my home or in casual conversation with polite company. I obviously have heard thee word used by racists in texas and in the northeast where I have lived for several years.

But it isn't "how people in Texas talk".

[cleek]

um?

[cleek]

clean up on aisle 2 ?

[Hogan]

So much for asking politely.

[Nombrilisme Vide]

On the off chance you were in fact acting in good faith, John, I think you should refrain from using formatting until you get a better handle on it.

[Nombrilisme Vide]

Not that I think he was (nor did he give me any cause to).

[Jesurgislac]

Marty: But it isn't "how people in Texas talk".

Quite. I remember my irritation when, in another online argument, a Brit used "the c-word" and then claimed that "this is how Brits talk, it's not offensive in the UK", to which I and several other Brits said "Yes, it bloody is"...

[russell]

I was just describing how people in Texas talk, as Publius surely knows

I've been a lot of places in this country, and I think I've heard that word in all of them at one point or another.

A suggestion for a new posting rule: if you don't close your italics, you have to buy cleek a sandwich or a beer, his choice.

[Slartibartfast]

I'd be delighted to clean all of that up, but I no longer have the Sekrit Passwurd.

[Kovarsky]

I've lived most of my life in Texas, including my first 18 years. A lot of us would never talk that way so I'm not sure what point you are making on this thread. Please stop.

[cleek]

wow. TypePad is doing something funky. for all you HTMLers, look at the source and check out what happens just before John L's signature - the offending [i] gets inserted before the "Posted By", but after a 'p class='comment-footer' tag.

i'd love to know what kind of stuff you have to put in the comment/info boxes to get TypePad to do that!

[Prup (aka Jim Benton)]

I hate to defend John R, but I have been running into similar problems on another TP blog -- there mostly with bold not closing, though one comment stayed as h ref for the whole piece. Typepad is acting screwy again, though those mysterious "-" posts ARE suspicious. It may not be him.

[Nombrilisme Vide]

The problem with the "malicious Typepad" theory is that there is formatting added at the end of some of his posts where he used no formatting, or where he'd not used that particular formatting. I'd honestly be shocked not in the least if John J. was "_", for that matter. The timing is a bit too tidy.

Then again, I am a deeply suspicious and cynical person.

[cleek]

i got no problem with the malicious user theory, but i'd love to know how a user can get TypePad to stick HTML between two tags that shouldn't have any user content between them.

cause i'm a geek. that's why.

[Woody]

Prosecutors, Judges, the whole legal apparati, HATES reversing convictions; hates even more releasing folks "convicted" and sentenced (howsoever wrongly) to death.

Because it weakens the "myth" that all that is required for justice is a jury of peers. If you start showing that juries can be railroaded, the convictions can be obtained via tainted--or no--evidence, that prosecutors and cops regularly prevaricate to gain convictions, that innocent people HAVE BEEN and WILL AGAIN BE executed, then you have just handed every jail-house lawyer in the pen a writ of habeus corpus...

You can see what a problem that would be...

[Jay Jerome]

"i'd love to know what kind of stuff you have to put in the comment/info boxes to get TypePad to do that!"

And I haven't been able to get html links to show... I type them, but none of the html tags, or the link itself, is visible.

[Jay Jerome]

AND
I just twice tried to post a multi paragraph comment on Vons previous "On regarding that speech..."

and typed in the required 'password'

and received message the comment was posted --

but neither one is there...

these posted, why not on the other thread?

[Nigel]

hairshirthedonist,
>>But, then again, so what?<<

I suppose the point is that the death penalty would also be wrong under a criminal justice system less brutal and more colorblind than that in the US.

[Donald Johnson]

"I will make my obviously useless objection to this statement. I was born and raised in Texas and in three generations I have never heard the word in my home or in casual conversation with polite company."

Huh. Three generations would take us back a fair number of years. I lived in TN from 68 until 81 and for many years I probably heard the n word repeatedly used every weekday of my life, around both adults and children. Not when blacks were around. And not with some racists who were slightly more sophisticated. And not with some whites (like my immediate family) who were not racist (as best as a person can judge that about oneself and one's own family).

But that word was part of the air you breathed and yes, in polite company. What I remembered as a child was reading the polite arguments against "forced" busing in the letters to the editor, and then hearing white kids at school saying that they didn't want to go to school with n*****.

And from what I hear from people still down south, it hasn't entirely changed in some areas.

[publius]

John J - I asked you nicely, and was pretty accommodating, considering. And then you rubbed my face in it. I should have just deleted them in the first place. I'm extremely busy for the next couple of days and really don't have time to monitor the comments for 8 year old immaturity.

I'm not banning you, but I did delete everything in the post. This is your warning -- pull that crap again and you're out of here.

[Nombrilisme Vide]

i got no problem with the malicious user theory, but i'd love to know how a user can get TypePad to stick HTML between two tags that shouldn't have any user content between them.

FWIW, I poked through the source and couldn't find what you referred to here. Every place where unclosed tags were present, they were before the [p class="comment-footer"].

(That we're seeing the source displayed inconsistently is slightly perturbing in and of itself, assuming we are and I'm not just blind and/or airheaded.)

[Dan S.]

" An actual, specific wrongly executed person would make a much better narrative. "

I've seen philanthropy-related research where a single human story proves to be rather more effective in getting people to give (a small amount) than far more comprehensive statistics. Wouldn't be surprised if it works the same way here.

[CharlesWT]

"A single death is a tragedy; a million deaths is a statistic." —Joseph Stalin

[cleek]

FWIW, I poked through the source and couldn't find what you referred to here.

can't show you now that the offending comments are gone...

[Brett Bellmore]

"Any argument will only reach those that follow the philosophy that it is better to let one (or more) guilty go free than to punish a single innocent."

But, of course, the only way to drive the false conviction rate to ZERO is to accept a false acquittal rate of 100%. In which case you might as well not have a law against killing anybody.

You have to set an acceptable rate of false convictions somewhat higher than zero, and where you draw that line is, of course, a judgment call. It's not that easy to get people outraged about things that have to be judgment calls.

[Hartmut]

The alternative is to not execute leaving the door open to redemption in this life.

[Jesurgislac]

Hartmut: The alternative is to not execute leaving the door open to redemption in this life.

Good grief. You'd think the US was a Christian nation, the way you go on...

[Brett Bellmore]

The reasoning is the same whether you execute, or merely imprison. It's not like you can give a falsely imprisoned man the years of his life back.

I respect people who object to the death penalty on principled grounds, but most of the arguments against the death penalty are not such as to persuade those who don't find it objectionable on principle. And would really be better directed to complaints that our 'justice' system isn't very good at serving up justice no matter what penalty is at stake.

[Phil]

It's not like you can give a falsely imprisoned man the years of his life back.

Sure you can. You can compensate him monetarily for all the time he was imprisoned. And you've already explained to us on a recent occasion that giving someone money is EXACTLY LIKE giving him additional years of life. Therefore, by giving a falsely imprisoned man money, you are giving him additional years of life, to compensate for the ones that were taken away.

[Hartmut]

Admittedly I do not object on principle (at least, if I am honest) but for any practical purpose it does not matter because I believe that humans are far to imperfect to apply it in a way that would be sufficiently immune against error and abuse.

[Hartmut]

Jes, the word was chosen deliberately for its ambiguity. You probably know as well as I do that the belief in a judgement after death is one of the excuses brought up by the Kristian(TM) pro-death faction to play down the cases of executed innocents (=God will redeem them for being innocently slain).

[Jesurgislac]

Hartmut, I was being sarcastic; I should have added the /sarcasm tag.

[Hartmut]

No problem, I guessed that much.

[twiff]

It's not like you can give a falsely imprisoned man the years of his life back.

no, but they are still alive, you see. that's the point.

given the choice of being falsely imprisoned for, say 30 years and being dead, i'm thinking most people will take false imprisonment.