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Last week, during the discussion of the Marcellus Williams execution we had a brief aside discussing my belief that the absolutist anti-death penalty stance is evil. That got me to thinking about the topic more and with the spate of executions last week, my social media feeds had a lot of discussion of them. Much of the commentary are sentiments that I find repellant, like this:
To be clear on who Littlejohn was:
…
To be clear on the arguments for clemency, it seems to be almost entirely based on uncertainty about which man pulled the trigger. This sort of hairsplitting, about who pulled the trigger is the kind of thing that I was referring to in the previous discussion as being about as close to just plain evil as any relatively normal, common policy position could be. Two men walked into a store with no intent other than robbing the owner at gunpoint. One of them shot him in the face. I could not possibly care less who pulled the trigger, they were both responsible and should both hang. I see no plausible moral case to the contrary. Perhaps one adheres to a generalized claim that the state should just never execute anyone, which I still strongly object to, but the idea that the case hinges on who pulled the trigger is either ridiculous or in completely bad faith. The latter possibility brings me to the second example of a post that caught my eye:
Readers will probably immediately spot what I think is in bad faith. Am I to believe that Ms. Gill’s objection to what she saw is that this method of execution is simply too brutal? That if only we could figure out some way to end Alan Miller’s life without suffering, she would agree that it’s appropriate to execute a man that “shot and killed two of his co-workers, 32-year-old Lee Holdbrooks and 28-year-old Christopher Yancy, at a heating and air-conditioning distributor, then drove five miles to a business where he had previously worked and shot and killed his former supervisor, 39-year-old Terry Jarvis”? No, of course not. Nonetheless, I want to treat this, for a moment, as a serious objection on the object-level to make a point in favor of execution that I don’t see made with much frequency.
How do you feel hearing that Miller may have spent five or ten minutes suffering before he died? Some may extend a degree of empathy to the monster on the table that I am not personally capable of, but I feel the same as many of the people replying on Twitter do - Miller deserves much worse than a few minutes gasping for breath. In fact, I’ve sometimes seen people argue that the death penalty is too good for the worst people, that life in prison is a worse penalty. This is presumably because they’re imagining a life in prison that’s filled with brutality, misery, and possibly rape and torture for decades. What this highlights to me is that the death penalty is not the worst punishment that a society can mete out - far from it, a swift execution is a cap on the amount of suffering that the justice system may inflict on someone. Truly, I think people like Dahmer deserve much worse than a simple firing squad, but putting some cap on it is a good way to prevent people from exacting revenge in a dehumanizing fashion.
I don’t really have any coherent argument to piece together here. I’m mostly expressing my frustration with empathy that is so misplaced that it seems like faulty wiring to me. Seriously, a man walks into a store with his buddy, shoots an innocent man in the face, is finally executed decades later, and people say, “rest in power” because it might have been his buddy that shot the innocent man in the face. How can I describe that other than evil? The only miscarriage of justice in the Littlejohn case is that the system allowed him to live for decades when no one even had any follow-up questions about whether he was one of the robbers. Other policies are more consequential, but there are none that I feel more conviction about my opponents being just plain wrong than the question of what to do with men like Littlejohn.
I get nervous about the death penalty for the same reason I think it should probably be legal: death is irrecoverable. When the state puts someone to death in error, that is an error that should shake the government to its foundations. Basically everyone involved in allowing that to happen should be removed from government office or employment, permanently, and strictly speaking at least some of the police, lawyers, and judges involved seem to have earned the death penalty themselves as a result. And wrongful execution does seem to happen, sometimes, and the consequences for it happening are basically nil; redistributing a bunch of tax money to the family of the innocent deceased is no solution at all.
But by the same token, when a murderer ends someone's life, there's just literally nothing anyone can do to "make it right." We sometimes allocate money to the bereaved, but their loss is inescapably paltry by comparison to the permanent, irrecoverable loss imposed on the deceased. The death penalty is society's way of saying, "the impossibility of restorative justice in these cases means that Hammurabi is all we have left."
Discourse on this topic is frustrating because a rather labyrinthine motte-and-bailey complex has arisen in connection with the retribution/deterrence/rehabilitation theories of criminal justice. In the United States, at least, we refuse to really commit to any particular theory of criminal justice (probably as a result of the democratic process). Instead, we engage in laundered mob justice, demanding our lawyers dress it up in whatever theory has the best fit, or happens to be in fashion. This strikes me as... inadequate.
So I end up being kind of weakly opposed to the death penalty, more because I tend to despise government than because I have any philosophical objections to executing known murderers. This is all in much the way that I vehemently reject the idea that "all cops are bastards," while comfortably believing that, say, "all traffic cops are bastards" is basically correct.
I disagree that the death sentence is a qualitatively different punishment from the usual.
We do not have a 100% accurate legal system, or even one that approaches it. It is still, speaking broadly, an acceptable one. I and most people present here have negligible chances of ending up behind bars if we go on leading relatively normal lives.
If I were someone wrongly convicted of a crime, and only released at the hoary age of 80 with a few million dollars as an apology, it isn't much better than being dead. Better, yes, but assuming I was in there for most of my natural life, I would have lived a very substandard existence, I would have lost the opportunities that I cared about.
Life is fungible with time, and time with money.
Look, I get where you're coming from about the irrecoverable nature of death, but I think we're missing the forest for the trees here. Sure, death is final - but so is losing decades of your life to imprisonment. Many seem to consider that there's there's this huge, qualitative difference between execution and long-term incarceration, but I'm not convinced it's as big as we make it out to be.
Think about it - if you're wrongfully convicted at 25 and spend the next 40 years in prison, only to be exonerated at 65, what exactly have you recovered? You've lost the prime of your life, missed out on career opportunities, relationships, family, and pretty much everything that makes life worth living.
Most of us need to donate a decade or two of our lives laboring to make ends meet. And (for the moment), death has been an inevitability for 97 billion anatomically modern humans. You steal my life savings, and I can draw up a figure for the years of my life you've stolen for me.
Keeping someone alive in custody for decades is expensive. Yet, the damage done, if done wrongly, cannot be trivially reversed.
Executing someone, in the USA, even those guilty beyond the shadow of a reasonable doubt, is somehow more expensive, but that speaks more to political opposition and organizational failure than the price of a bullet or a noose. It is not intrinsically difficult or expensive to end a human life, quite the opposite.
You mentioned the idea of Hammurabi being all we have left when restorative justice is impossible. I'd argue that this applies just as much to life sentences as it does to the death penalty. In both cases, we're essentially saying, "We can't undo the harm done, so we're going to remove this person from society permanently."
And that may as well be cheaply. Because the rest of us are paying for it with our finite time and money. Not without due process, extra care even, but the kind of people who end up on Death Row aren't particularly sympathetic characters if the recent discussion about the questionable candidates that the Innocence Project were forced to advocate for are any indication.
I'm an unabashed transhumanist. I think there is a very significant probability that human lifespans could be made nearly unbounded in the span of our current life expectancies. I think it's a tragedy that anyone dies, especially today, when the end is potentially in sight. That only changed the values of the calculus, not the core of it. Still, beyond wishful optimism, I know no reason to assume that humans can live literally forever, not while thermodynamics and Feynmann's quip about it stands. But as the world exists, reformative and restorative justice seem farcical to me. The closest we can get those congenitally inclined towards to criminality to desist within the tender caress of a prison is to age them out of their proclivities. While still outside, with the fear of swift and likely punishment (hence why the perceived odds of being brought to justice outweigh the kind of justice involved, the death penalty isn't a detterent over life in prison). Thus, without access to better ways of removing the crime from the criminal, we keep them away from those they might hurt. Maybe one day we'll be able to edit minds or genes to turn even the most murderous maniac into someone who sobs at the idea of hurting a fly, but that day isn't today. If the possibility of killing someone before that eventuality seems too much, oh well, cryopreserving their brains in a vat preserves some possibility of reform even after death, and is more than their victims received. It's a rounding error compared to the costs of trial, prison, or execution at the end.
Almost all societies recognize the necessity of governments making hard decisions, often unpleasant decisions, about who goes behind bars and who dies. We simply have to choose how to calibrate that curve, decide how many innocent men die and how many guilty men go free. For a functional society, the optimal number of either is not zero. When you bite that bullet, I genuinely don't see any reason to be squeamish about the most villainous biting theirs.
The only extra care given to capital cases in the United States is the bifurcated nature of the trial with both guilt and penalty phases and the requirement for death-qualified juries. While these impart some additional amount of time and expense, the biggest contributing factor is the lengthy appeals process. This is what's usually in the crosshairs of people who want to speed up the execution process, because it's the most obvious contributing factor; the trials may take a bit longer, but people don't start the clock on these things until after the sentence is pronounced. The problem, though, isn't that the appeals process is any different for capital cases than it is for other cases, but that the entire process is almost always utilized.
Most criminal convictions in the US are the result of plea bargains, and there isn't much to appeal in those cases. You could theoretically claim that an incompetent attorney talked you into taking a bad deal, but winning that appeal would at best get you a trial, at which you could be convicted and sentenced to a stiffer penalty. So no point in appealing that unless the situation is desperate or your attorney really likes your chances of winning. Also if there's a DNA exoneration or something like that, but those are rare. Even without a plea, though, most defendants don't appeal because it simply isn't worth it. Defendants who do appeal will usually only do so when there are clear avenues for appeal, and they will limit their appeal to those avenues. They'll also usually stop after losing at the first stage, and will only press further if there's a serious constitutional issue at stake.
Death penalty cases never result from plea bargains, and the defendants have no incentive to not file every appeal they can. So rather than focus on a few key issues they'll throw the entire record into question. Challenge everything in there that can be challenged. And capital cases are complicated and bifurcated so they have incredibly long records. This means the prosecutor has to wade through thousands of pages of trial transcripts to properly contest the appeal, and he's on the public payroll. So take your appeal to the intermediate appellate court and wait a couple years. When that appeal is rejected, take it to the state supreme court to be rejected (some states have tried to short-circuit this process by giving all capital appeals directly to the supreme court). Then maybe appeal that ruling to the US Supreme Court. They probably won't take it, but you'll by some time waiting for them to deny cert.
By this point, your appeals are exhausted, but that's not the end of it. Now you start filing for post-conviction relief. This is where you argue that defects outside the record merit reconsideration. Things like ineffective assistance of counsel, discovery of new evidence, and an intervening court decision. These also take a while. But then after that you get to argue the same things in a Federal habeas corpus petition. All of this by itself take a long time, but in a significant number of cases the defendant actually wins an appeal or a motion for relief. The thing is that winning these doesn't get you out of jail, but simply gets you a new trial, or a new sentencing phase. So now the defendant goes back to square one (or two) and starts the whole process over again.
The incentives in this process line up so that the goal is to expend as much time as possible. Someone serving a ten year sentence isn't going to do it this way because he's probably going to be out of prison before the appeals are exhausted. Someone serving a life sentence isn't going to do this because if they can theoretically get out they want out as fast as possible; buying time does nothing. But death row inmates aren't that stupid (or at least their attorneys aren't). Any postponement is a bonus, even if the end result is the same.
I honestly don't see any way around this. I understand the sentiment around not wanting to waste time, but these are protections that are enjoyed by everybody, and we have to look beyond death row if we want to scuttle them. Yeah, most death row inmates are total pieces of shit, but in some cases there really were serious procedural mistakes, in some cases there really was ineffective counsel, and there occasionally are exonerations. I'm not comfortable with the idea of intentionally scuttling constitutional protections across the board for the sole purpose of making it easier to execute people. I'm not sure what exactly is gained from that.
I think the answer is 'fast track appeals, so capital cases who appeal their sentence get a hearing almost immediately, and if they lose, it's over quickly'.
That sounds good in theory, but the reality is that court backlogs aren't the reason these cases take so long to resolve, and trying to force the issue actually increases the chance that the prosecution loses. Technically speaking, appeals are on a strict timeline. In reality, like most things in law, nothing is that strict. I can't speak for all states, but here's how it works in Pennsylvania:
After sentencing, the defense has 10 days to file a post-trial motion. This is where you list all the errors you think the court made and politely ask the court to reconsider them. Since you only have ten days to file, though, you pro-forma list every adverse decision the judge made. At this point, the judge has 120 days to grant or deny the relief. Since these motions are rarely granted, the default is that if no decision has been rendered in 120 days, they are automatically denied. Since this doesn't require the judge to actually do anything, you can expect to wait the full 120 days. Then you have 30 days to file notice of appeal. Once the notice is filed, the court will send a docketing statement, that has a deadline by which you must file a Statement of Errors with the trial court. Except you just got the transcript after 4 months, and this transcript is 11,000 pages long, and you need time to go through it to catch all the errors. So 2 weeks before the Statement is due, you file a motion with the court for an extension, which they grant, because the prosecution doesn't oppose it, because if they did then defense counsel would never agree to their extension requests. So the deadline gets extended by a month.
Once the Statement is finally submitted, the trial judge has to actually respond to every argument. And he's going to take his sweet time responding because he's about to start another trial which he isn't about to postpone for the third time just so he can respond to your long-shot motion, so add another couple months onto that. Once he's explained why your arguments are bullshit, you have to file a brief in support of your motion, which you nominally have 30 days to do but which you're going to ask for an extension on because you've raised so many issues that you need time to properly research the issues and apply the law to the facts in this monster transcript. And the prosecution again raises no opposition, because they don't exactly have an attorney assigned to handling this appeal and the trial team are all busy trying to incarcerate criminals who aren't in jail indefinitely and don't have the time to spend going through that 11,000 page transcript themselves and countering all of your arguments. After all, if they contest your motion then you're not exactly going to be inclined to grant them any extensions, which means their brief would be dogshit and you'd waive oral argument while the appeals court remands the case for a new trial and they're back to square one. So you get your extension. And since you got your extension, you're in no position to request their request for an extension, and they get one as well. And once you get their brief you now have 14 days to file a reply brief, which you probably don't do unless they made a particularly bad argument, but anyway. Now, a year and a half after sentencing, we're finally at the point where the case can even get scheduled for argument.
The upshot is that it's not so much the court's time that's the problem but the attorneys' time. We can certainly increase the speed of these appeals by hiring dedicated appellate teams for local DA's offices, but these offices don't have the budgets to fully staff their offices as it is. Why would we prioritize these cases? These defendants have already been convicted and are going to be in jail forever and a day regardless of what happens. Every capital case that gets fast tracked means another case gets bumped. Is this really more important than a free speech case? Or a case where there are legitimate questions about illegal searches? Or even a commercial case where the law is genuinely ambiguous? Shouldn't we dedicate what limited resources we have toward prosecuting crimes where the defendants haven't been convicted and might not be? Or do we raise local taxes to give DA's offices more money? That won't sit well in red areas. In Washington County, a rural/exurban county outside of Pittsburgh, the new DA has decided to make a statement by charging every murder he can as a capital case. His first year in office there were 9 murders in a county of about 200,000 people. He charged 5 capital cases, including 1 woman whose only connection to the crime was that her fingerprint had been found on a shell casing. This isn't a particularly large office. He probably could've gotten plea deals on most of these, but instead he has to waste taxpayer money on a quixotic attempt at securing the death penalty in a state that has a moratorium on executions, and that is considering abolishing capital punishment on the grounds that it's an inefficient generator of the bullshit described above.
I greatly doubt that this would actually result in expedited processes. The legal profession is hardly alone in finding that the amount of putative work that exists tends to increase to meet the number of individuals that are doing that work, but it's a stark example of the phenomenon. The United States has no shortage of attorneys, but legal proceedings have tended to increase in length rather than becoming quick and straightforward processes. Much like many of the other issues caused by endless legal wrangling and treating obvious bullshit as worth 120 day waiting periods, these aren't problems with no known solution to man, but problems created by the legal profession and the love its practitioners hold for artificial complication.
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Nominating for a late-in-the-game AAQC purely on the strength of that marvelous closing sentence.
Heh. I can't resist to throw in some alliteration, a pinch of prpsody, and I'm glad someone appreciates it!
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