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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.
To interrogate this a little: do you think that attempted murder should have the same punishment as accomplished murder?
Historically attempted murder has often drawn a lower penalty than completed murder, with there being an underlying assumption that failure to complete the act indicates some lack of mens rea to do so, or that cosmically it is wrong to execute a man without another body on the other side of the scale. After all, for Hammurabi "An eye for an eye" represented a gentler moderation rather than a harsher extreme, by that logic one cannot execute one's enemies unless they have taken a life.
One can, of course, focus on the mens rea and say that it's the evil intent that is most important.
I'm just curious where you come down on that argument.
I'm fine with biting the moral luck bullet. Drunk driving is the clearest example of this for me, where there is obviously no literal intent to kill anyone, but we punish those who do kill someone much more harshly than those that are merely negligent. I have no intuitive reaction to how attempted murder should be punished, but it seems basically fine to me to not escalate punishment to execution without a successful murder.
So why does that not extend to the accomplice, rather than the triggerman, in a felony murder case? What if witnesses testify that the triggerman was at the counter alone while his accomplice was in another room, but cannot identify which was which? It seems odd to say, well we wouldn't kill both of them if we knew which one was which, but since we don't know which one was which we'll kill them both.
Though I'll note that capital Felony Murder seems like a fine rule to me in that a felony is a sufficient predicate for an execution, but we can draw ever more outre cases. How many Jan-6th type "felony trespassers" can you charge with the murder of Ashli Babbitt? Felony murder has been used to charge felons for the deaths of their accomplices, on the theory that violence was a predictable result of their felonies on the day, and so the deaths of their accomplices were a predictable result of the violence they invited. We're only looking for a sufficiently tyrannical prosecutor.
Let's set up a hypothetical: five guys are at a party, all drinking, assume the same amount and tolerance for the sake of the hypo, all clearly plan to drive home. Four of them are caught at a highway checkpoint and arrested, the last is not so "lucky" he took backroads and crashed into oncoming traffic and killed another driver. Should the four men who did not kill anyone be charged just as harshly?
See this post for some elaboration. In the Littlejohn case, I don't think it's obligatory that he be executed, just that there is no miscarriage of justice in doing so. Had the jury gone the other way, I wouldn't have follow-up questions for them, it's fine.
Well, yeah, this is where a jury of your peers comes in, plus a little help from a judge in sentencing. I don't think planning on armed robbery where things going as planned results in someone getting a gun pointed at their face is all that similar to the guys that walked into the capital and were technically trespassing. Many lacked proximity to violence that would look like any sort of meaningful moral culpability. Further, Babbitt died because she charged a semi-fortified position with an armed officer there - her own death could easily be avoided with her own decisions. I get your point, but ultimately, it's hard to say much other than that this is exactly why judgment is relevant. There is no scalable, generalizable principle that would lead me to treat literally all plausible felony murder cases the same; two thugs deciding to knock over a convenient store and one of them shooting the owner in the face is pretty much a canonical example of what felony murder cases should be about though.
If the concern is really just that felony murder is too flexible a charge, I may well agree, but this isn't the case where that seems relevant to me.
Nope. Like I said, I'm just willing to bite the bullet on the moral luck there. I can come up with reasons why I'm willing to do so, but I kind of suspect that they're all just post facto, formulated to serve the intuition rather than the other way around. On the flip side, if there was a clearly articulated law that DUI is always punished equally harshly, based on the known facts about the level of inebriation rather than the outcome of the driving, I wouldn't feel a great deal of sympathy for the guys at the checkpoint that got "unfairly" punished. Some behaviors are beyond the pale - whether drunk driving is one or not seems less obvious to me than whether armed robbery is. In either case, my intuition is that your punishment should coincide with the actual outcomes rather than a probabilistic model of outcomes, but I don't think I can muster a great defense of that position at the moment.
This aligns with my basic intuition, I'd agree that the jury verdict should absolutely be respected absent a near certainty of error.
This, though, strikes me as a little shakier:
The armed robbers planned for a gun to be pointed at someone's face. The crowd charging at armed police officers intended for someone to confront the armed police, that it wasn't them personally who ran into that police officer is moral luck.
Though your point about Juries is well taken.
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