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ZorbaTHut  1yr ago (text post)   35173 thread views

Culture War Roundup for the week of September 19, 2022

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I consider myself a generalist. More specifically, I try to find patterns in one part of reality which are replicated elsewhere, in order to understand reality better. I filed “criminal law” under “science” in my mind when I recognized the epistemological similarities between falsification in science and “beyond a reasonable doubt” in criminal laws.

My belief in “beyond a reasonable doubt” was somewhat shaken by having watched the TV series “Bull”. However, I was fairly confident that American law, by and large, gets it right. Until today, when I ran across this article on LessWrong. Basically, there are so many confounders in most experiments that actually learning something new is unlikely if the experiment is made to test one variable.

If criminal law and science are twin methods of knowing, both based on eliminating all reasonable doubt, I no longer have faith in the death penalty except in the most absolutely obvious and clear-cut of non-cherrypicked cases.

I don't understand this complaint about the death penalty specifically. The alternative to the death penalty in most cases is life imprisonment which barely seems better. Why are false positives with life imprisonment ok, but the false death penalties not?

Moreover, life imprisonment lets us pretend that we'll fix the false positives later on, even though I see little evidence we actually will.

Overall this argument seems like an isolated demand for rigor.

The opposite of an isolated demand for rigor would be an overall demand that life imprisonment also be off the table, on the same grounds. And while as a libertarian I should be as shocked (shocked!) that the government is allowed to steal someone’s life as to compel their death, the system is practically as sane as it can be in order to protect us citizens (us law-abiding, tax-paying, workaday folks, to really rub it in) from dastardly criminals of both the organized and the chaotic sorts.

So, no, death is a Schelling fencepost at the very cliff-edge of the slippery slope, not to protect the criminals from falling off, but to protect us from being the ones who push off the innocent. If we can’t be certain with no reasonable doubt when testing all the variables, we should play by Batman rules.

Life imprisonment is partially reversible.

With what odds will an innocent person sentenced to life imprisonment actually get their sentence partially reversed? Or...here's a more quantitative approach.

Take a typical time to live on death row of maybe 10 years (all the appeals, etc). What fraction of people sentence to life imprisonment get their sentences reversed in year 11-99? I'd hazard a guess it's quite low, but not sure where to find the numbers.

(Actually I suspect it might be high if your dataset overlaps the period when DNA testing was introduced - mainly cause a backlog of cases was created that could only be addressed after a technological advance.)

"Happens X times and is not reversible in Y% of them" is equivalent to "happens Z times and is not reversible at all", for appropriate values of X, Y, and Z.

Or in other words, if this was really your argument, you would be happy with the death penalty if it was only applied in a number of cases equivalent to (number of cases where people get life imprisonment) * (percentage chance of being able to reverse those before the person dies in jail).

No, the reason I personally am opposed to death penalty, and legalised euthanasia for that matter, is that I don’t want to give the state any additional ways or possible covers to murder people

An inconvenient person is framed for a crime -> quickly trialled, sentenced to death and executed -> public finds out the accusation is made up -> "oops, justice system error, sorry but it happens sometimes unfortunately"

As those who think about this stuff for a living have said repeatedly (826 times, per Google Scholar), "death is different":

In 1983, 11 years after Furman had been decided, JUSTICE O'CONNOR observed in a majority opinion that the "Court, as well as the separate opinions of a majority of the individual Justices, has recognized that the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination." California v. Ramos, 463 U. S. 992, 998-999; see id., at 999, n. 9 (citing cases). See also, e. g., Ford v. Wainwright, 477 U. S. 399, 411 (1986) (MARSHALL, J., plurality opinion) ("In capital proceedings generally, this Court has demanded that factfinding procedures aspire to a heightened standard of reliability. . . . This especial concern is a natural consequence of the knowledge that execution is the most irremediable and unfathomable of penalties; that death is different"); Ake v. Oklahoma, 470 U. S. 68, 87 (1985) (Burger, C. J., concurring in judgment) ("In capital cases the finality of the sentence imposed warrants protections that may or may not be required in other cases"); Gardner v. Florida, 430 U. S. 349, 357-358 (1977) (STEVENS, J., plurality opinion) ("From the point of view of the defendant, it is different in both its severity and its finality. From the point of view of society, the action of the sovereign in taking the life of one of its citizens also differs dramatically from any other legitimate state action. It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion").

Murray v. Giarratano, 492 US 1, 21 (1989)

It is for that reason that juries determining whether to impose the death penalty are told that they can consider "lingering doubt" or "residual doubt" as to the defendant's guilt, which is usually "'defined as that state of mind between beyond a reasonable doubt and beyond all possible doubt.'" People v. Brooks, 2 Cal. 5th 674, 776 (2017). So, yes, it is literally a demand for additional rigor.

Moreover, life imprisonment lets us pretend that we'll fix the false positives later on, even though I see little evidence we actually will.

Basically for this reason. You can let an innocent out of prison, you can't bring them back to life.

Again - will we actually do it? I'm asking about probability and gambling odds, not theoretical possibility of a comforting story.

You can let an innocent out of prison in X% of the cases, where X is not 100%, because sometimes the innocent dies in prison before their innocence is discovered.

You also can't give them back the term of their life they've already spent in prison. Sure, under the "time is money" theory, you can try to make up for it that way, but I don't know. I'm imagining an eighteen-year-old, wrongfully sentenced to life in prison, being exonerated after seventy years and set free. Hooray! Justice has been done at last; he has his life back now!

What's left of it.

Strictly speaking, everything is irreversible. How should we take this, as modus ponens or modus tollens? I'm certainly conflicted, but it does seem important.

This does happen on occasion, but IMO "life in prison is cheaper because we save on legal appeals" (which is a common argument, but not one you specifically are making here) is wrong because life in prison probably deserves the same standard of confidence the death penalty does. I don't think someone innocent dying of old age in prison is morally much better than dying by execution.

I agree with this. It seems to me that a lot of the argument for the superior morality of long prison sentences weighs on the importance of being able to apologize to someone after unjustly imprisoning them. This leads to the intuition that it's much more tragic for someone to die one day before being released from unjust imprisonment than one day after, but I've never really found this very persuasive. It seems transparently self-serving for authority to believe in the morally transformative power of declaring "Sorry, I fucked up!"

Criminal law is absolutely not a "method of knowing." It is a method for sorting through socially-disapproved conduct. The jury is not engaged in an epistemological analysis; they're exercising raw judgment. "Do we want to put up with this?" "Is that excusable?" "Does he seem like a person who should be expelled from civilization?"

? Juries are literally fact finders, and their verdicts can be overturned if there is insufficient evidence to support them.

In contrast, the issues you mention -- is it excusable, etc, are generally issues of law, which the jury is not charged with deciding, and in particular, a prosecutor who asks the jury to determine the "kind of person" the defendant is is asking for a mistrial. "It is impermissible for the state to attack the character of the defendant unless he first injects the issue by offering evidence of his good character." State v. Miner, 703 SW 2d 73, 75 (Mo Ct of Appeals 1985).

So, whether criminal law is a "method of knowing" is debatable (it is a system of justice, not merely a system of truth determination, and hence it intentionally ignores some relevant evidence), but your statements about what happens at trial are incorrect.

All of the dialogue-style examples you gave seem to be the jury assuming the prosecutor is telling the truth about the events in question. Yet every political side can point to one of their own being wrongfully prosecuted. So clearly, the primary duty of the court is to determine whether something happened a certain way or another, with level of criminality to be adjudged after existence of criminality.

It is the court’s use of falsifiability in determination of existence of criminality in a given case which shares epistemological roots with the scientific process.

The law of evidence is a masterpiece of applied philosophy, where the central question is "how can we be confident (for any value of confident) that we know something is true?" The intricacies of hearsay and the balancing of admissibility (probative value vs. prejudicial effect) come from hard-won knowledge about measuring claims to truth in an imperfect world where people lie, or are mistaken, or were not present to observe the thing you really want to know about. It is top to bottom messy compromises and carefully honed best guesses presented to a random sample of average folk who are supposed to use common sense to sort truth from fiction.

The reason a lot of it is so complex is simple--the problem is really really hard, and we need a workable approach now. So we have a system, the result of centuries of work across millions upon millions of cases, trying to provide a delicate compromise between accuracy, fairness, efficiency, and a host of other values.

Jail is not enough of a deterrent for certain crimes. Most people fear death more than they fear jail. Also executing someone is more humiliating to them than jailing them. Also if you execute them you don't have to pay for the costs of sustaining them in jail.

Lifelong internment of blood-thirsty monsters is a small price compared to executing the innocent. If any utilitarian argument were to sway me, it’s the current chaos of them being alive for Democrats to let out in an emergency, like the COVID lockdowns.

I don't think it's a given that death is more humiliating than jail.

This only works if you execute them quickly, PRC style, instead of letting someone sit on the death row for a decade.

Criminal justice reform can be somewhat of a snarl phrase because it’s generally used by people who seem to not believe in prison as a concept, or more charitably, are blank statists enough that they believe almost everyone can and should be rehabilitated with enough time and effort.

I’m not really in that camp and think we can and should lock people up for as long as we need if they’re violent menaces to others. That said, prison conditions in the US are appalling and I get extremely uncomfortable when people righteously gloat about how a criminal will be violently raped in prison as retribution for his crimes.

Someone who goes to prison for a minor or nonviolent offense often finds himself joining up with a prison gang just to have protection. Once you’re out, your criminal record hurts your employment chances, but it’s okay because you just networked with a group of hardened criminals… it’s like we designed the system to both maximize suffering and crime.

I’ve seen a few suggestions for reform on here that I really like. One was from a rather controversial user who used to post here named Penpractice, who suggested public corporal punishment instead of jail time for minor offenses. Basically, humiliate and let the criminal resume his life, rather then send him to prison to meet worse criminals.

I like this idea, but since I don’t believe the optics of this could survive for a minute in the US, a better solution came from 2cimirafa, who basically said “keep violent offenders in prison until they’re 60 and give them fast food and video games to keep them humanely fat and sedated.” If that could survive the inevitable Republican swipe of “Democrats want to buy Playstations for every felon in prison” it seems to be a good idea. Keeping violent offenders comfortable and sedated and off the streets should cut down on violence for prison guards, less hardened prisoners they would prey on, and of course the average person.

Obviously, both ideas would take a lot of work from concept to execution, but they seem a lot better than the current system.

I also think the people who valorize prison rape are doing a bad thing.

Because the brutal parts of prison life are "technically not supposed to happen," we get to have our cake and eat it, too, with regards to sentencing people to tortures and feeling innocent about it. It is, at the least, not in-line with most people's professed ideals, I think.

In my view, effective self-defense is a natural right, and any reasonable approach to imprisonment abridges that right pretty harshly. I am not therefore opposed to imprisonment! There are contexts where natural rights may be properly abridged, and this is one of them.

However, you can't abridge a natural right without consequences, and in this instance, I believe that the state takes on the moral responsibility for the prisoner's defense, since the state has so sharply limited his ability to provide that for himself. The state--and in a democracy, the people--can't shirk this moral responsibility by just shrugging and saying, "shit happens." The state should prevent prison rape where and when it can, in balance with its other responsibilities, and punish the inevitable failures.

How would that reasoning not lead to getting rid of jails completely? You could similarly argue that if the state takes away someone's freedom, they are obliged to provide him with freedom.

(If your answer is that the state only needs to provide some, but not as much as it took away, that would affect your original argument too.)

Imprisonment, as a punishment, is intended to restrict a prisoner's ability to commit crimes, by separating him from the rest of society and putting him under the supervision of guards. This is a direct, and intended, removal of liberty.

However, there are also second-order effects, that are not intended, but are--practically speaking--inevitable. One of those is the limitation on the prisoner's right of effective self-defense. This limitation isn't justified by the standard philosophical defenses of imprisonment-as-punishment, so in my view, the state needs to step in to replace what it has taken without justification.

You could similarly argue that if the state takes away someone's freedom, they are obliged to provide him with freedom.

More precisely, I'm arguing that if the state takes away someone's freedom without justification, they are obliged to provide him with something in exchange. In this case, if you remove someone's right to effective self defense without justification for removing that right specifically, then you're obliged to step in and make a reasonable effort to provide protection.

I like this idea, but since I don’t believe the optics of this could survive for a minute in the US, a better solution came from 2cimirafa, who basically said “keep violent offenders in prison until they’re 60 and give them fast food and video games to keep them humanely fat and sedated.” If that could survive the inevitable Republican swipe of “Democrats want to buy Playstations for every felon in prison” it seems to be a good idea. Keeping violent offenders comfortable and sedated and off the streets should cut down on violence for prison guards, less hardened prisoners they would prey on, and of course the average person.

Well imagine if someone raped and killed your mother, wife and daughter, and then proceeded to laugh at you for the next thirty years, eating Big Macs and playing video games all the while

Would you be okay with this kind of "justice"?

Thing is, some crimes are in fact heinous and must be punished by long imprisonment with dismal conditions (and that only because we can't trust the state with the death penalty). The others probably shouldn't be jailable offences to begin with.

I was a bit unclear with the "until they're 60" line I was quoting, but I'm fully for locking that type of offender up for the rest of their natural life with no chance of parole. If I related to the victims, I would probably want blood, but there are other considerations beyond personal satisfaction. Locking him up this way ensures he's never able to harm an innocent citizen again and lowers the likelihood of him person harming the people who have to live with or guard him in prison. In a world where we could 100% verify guilt without bias, I have no issue with the death penalty, but for practical reasons I'm against it.

The others probably shouldn't be jailable offences to begin with.

How should we punish comparatively minor offenses? I think we should come down hard on crimes that don't produce a body like thievery and armed robbery since they lower trust and make people feel unsafe, even if the objective harm they have is minor compared to some white-collar crimes. Just because I don't want those people around doesn't mean I want them to face constant prison violence, though.

How should we punish comparatively minor offenses? I think we should come down hard on crimes that don't produce a body like thievery and armed robbery since they lower trust and make people feel unsafe, even if the objective harm they have is minor compared to some white-collar crimes.

None of those are minor crimes. Indeed, white collar crimes are the type that have the least intuitive reason for actually jailing them, because sullying their reputation is enough to prevent their repeat. Theft is a serious crime prone to repeating, which is why incapacitation via jailing is appropriate.

I'd presume a large part of the point of jailing white-collar criminals is to prevent first offenses.

Some split between deterrence and punishment is likely. You can see rhetorically, there is often heavy emphasis on punishment.

People bring up the discrepancy in sentencing between white collar and blue collar crimes as a flaw in the justice system all the time and I've literally never heard this counterargument. And I have no idea why, because it makes perfect sense and reading it made me do a 180 from tentatively against this apparent double standard to tentatively in favor of it.

This is one of the best compliments I've gotten on here, thanks!

The term you're looking for in the philosophy of punishment is "incapacitation"--making the criminal incapable of repeating his crime. Imprisonment gets there by putting physical separation between the criminal and his potential victims.

I'd be surprised if they didn't also cover deterrence, both general and specific?

And after 20 years they are middle-aged. Definitely not impossible to commit crimes of violence any more (and if the original crime was against a small child or an elderly person, sure, this does not apply) but if they hang around any criminal elements in an attempt to, say, get an illegal handgun or fence some goods, they are likely to just become another victim.

Yes, incapacitation no longer applies as a justification when the circumstances aren't met. Imprisonment meets the incapacitation justification for the duration of the imprisonment, but not afterwards. Capital punishment meets the incapacitation justification permanently, as can various forms of maiming in the cases of specific crimes.

If reality is a rich tapestry, philosophy often involves taking a microscopic look at one of the threads. This is one of those cases. If you're looking to make policy, you should definitely consider way more factors than whether a specific type of punishment meets a specific philosophical justification!

But then again, I have the luxury of believing in Hell. God is the retributive one, and he doesn't convict the innocent, only the state does that.

I wouldn't describe the Christian God as "retributive."

If a Christian man murders 12 Muslims and repents afterwards, does the Christian man go to Heaven while the Muslims burn in Hell? That's not "retribution" and not even "mercy", it's abominable behavior of an unjust and arbitrary tyrant.

God is also responsible for making the criminal in such a way that they would be inclined to commit heinous crimes...

How should we punish comparatively minor offenses? I think we should come down hard on crimes that don't produce a body like thievery and armed robbery since they lower trust and make people feel unsafe, even if the objective harm they have is minor compared to some white-collar crimes. Just because I don't want those people around doesn't mean I want them to face constant prison violence, though.

Well just fine the criminal, you generally wouldn’t mind if someone stole 1000$ from you and then had to return 2000$.

In case of failed serious violent crimes, maybe indeed the video game prison.

Generally speaking people steal money because they don't have any of it. You may as well just put them in prison straight away and save the court the paperwork and time.

Yeah, becoming a skeptic (which happened gradually, but I think I noticed really happening around my second year of grad school) made it very hard for me to accept the death penalty, for basically the same reason. I am not opposed to it, in principle, for murder. I expect it is probably warranted in some cases of military misbehavior. But in a modern jury system? I just can't bring myself to endorse its actual implementation. We know that some innocent people get executed, and evidence that the death penalty discourages murder in other cases is too thin and dubious to support the occasional death of an innocent.

I enjoy reading insights from the various criminal lawyers who occasionally post here, because that is a job I could never do. In practical terms, I can't handle the sausage making. I'm too attached to my ideals. Sometimes this is to my benefit, but I think it makes me a poor politician, and an even worse trial attorney.

The death penalty exists because horrific crimes exist where any lesser punishment is obviously insufficient. Those horrific crimes are...not as rare as anyone would prefer, and blood cries out for justice.

Vigilante justice is a form of justice. It's...not great, but nearly always available. It has significant problems with consistency, proportionality, accuracy, etc. all of which organized forms of justice can (and do) improve on, which is the underlying social contract. No vigilante justice, so long as organized justice provides better value in aggregate.

But organized justice needs to do the work, and the work suuuuuucks. When organized justice flinches away from the messy business of punishment, it violates the social contract that gives it legitimacy. Enough of that, and the system loses credibility, and people turn to vigilante justice instead. (This is bad. Vigilante justice is the second-worst outcome.)

There are certainly horrific crimes out there, and horrific people. But, the reality is that the categories of death-eligible crimes has expanded far beyond the scope of such extreme crimes. For example, here are all of the special circumstances that can result in the death penalty in CA: :

(1) The murder was intentional and carried out for financial gain.

(2) The defendant was convicted previously of murder in the first or second degree. For the purpose of this paragraph, an offense committed in another jurisdiction, which if committed in California would be punishable as first or second degree murder, shall be deemed murder in the first or second degree.

(3) The defendant, in this proceeding, has been convicted of more than one offense of murder in the first or second degree.

(4) The murder was committed by means of a destructive device, bomb, or explosive planted, hidden, or concealed in any place, area, dwelling, building, or structure, and the defendant knew, or reasonably should have known, that his or her act or acts would create a great risk of death to one or more human beings.

(5) The murder was committed for the purpose of avoiding or preventing a lawful arrest, or perfecting or attempting to perfect, an escape from lawful custody.

(6) The murder was committed by means of a destructive device, bomb, or explosive that the defendant mailed or delivered, attempted to mail or deliver, or caused to be mailed or delivered, and the defendant knew, or reasonably should have known, that his or her act or acts would create a great risk of death to one or more human beings.

(7) The victim was a peace officer, as defined in Section 830.1, 830.2, 830.3, 830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37, 830.4, 830.5, 830.6, 830.10, 830.11, or 830.12, who, while engaged in the course of the performance of his or her duties, was intentionally killed, and the defendant knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of his or her duties; or the victim was a peace officer, as defined in the above-enumerated sections, or a former peace officer under any of those sections, and was intentionally killed in retaliation for the performance of his or her official duties.

(8) The victim was a federal law enforcement officer or agent who, while engaged in the course of the performance of his or her duties, was intentionally killed, and the defendant knew, or reasonably should have known, that the victim was a federal law enforcement officer or agent engaged in the performance of his or her duties; or the victim was a federal law enforcement officer or agent, and was intentionally killed in retaliation for the performance of his or her official duties.

(9) The victim was a firefighter, as defined in Section 245.1, who, while engaged in the course of the performance of his or her duties, was intentionally killed, and the defendant knew, or reasonably should have known, that the victim was a firefighter engaged in the performance of his or her duties.

(10) The victim was a witness to a crime who was intentionally killed for the purpose of preventing his or her testimony in any criminal or juvenile proceeding, and the killing was not committed during the commission or attempted commission, of the crime to which he or she was a witness; or the victim was a witness to a crime and was intentionally killed in retaliation for his or her testimony in any criminal or juvenile proceeding. As used in this paragraph, “juvenile proceeding” means a proceeding brought pursuant to Section 602 or 707 of the Welfare and Institutions Code.

(11) The victim was a prosecutor or assistant prosecutor or a former prosecutor or assistant prosecutor of any local or state prosecutor’s office in this or any other state, or of a federal prosecutor’s office, and the murder was intentionally carried out in retaliation for, or to prevent the performance of, the victim’s official duties.

(12) The victim was a judge or former judge of any court of record in the local, state, or federal system in this or any other state, and the murder was intentionally carried out in retaliation for, or to prevent the performance of, the victim’s official duties.

(13) The victim was an elected or appointed official or former official of the federal government, or of any local or state government of this or any other state, and the killing was intentionally carried out in retaliation for, or to prevent the performance of, the victim’s official duties.

(14) The murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity. As used in this section, the phrase “especially heinous, atrocious, or cruel, manifesting exceptional depravity” means a conscienceless or pitiless crime that is unnecessarily torturous to the victim.

(15) The defendant intentionally killed the victim by means of lying in wait.

(16) The victim was intentionally killed because of his or her race, color, religion, nationality, or country of origin.

(17) The murder was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit, the following felonies:

(A) Robbery in violation of Section 211 or 212.5.

(B) Kidnapping in violation of Section 207, 209, or 209.5.

(C) Rape in violation of Section 261.

(D) Sodomy in violation of Section 286.

(E) The performance of a lewd or lascivious act upon the person of a child under the age of 14 years in violation of Section 288.

(F) Oral copulation in violation of Section 287 or former Section 288a.

(G) Burglary in the first or second degree in violation of Section 460.

(H) Arson in violation of subdivision (b) of Section 451.

(I) Train wrecking in violation of Section 219.

(J) Mayhem in violation of Section 203.

(K) Rape by instrument in violation of Section 289.

(L) Carjacking, as defined in Section 215.

(M) To prove the special circumstances of kidnapping in subparagraph (B), or arson in subparagraph (H), if there is specific intent to kill, it is only required that there be proof of the elements of those felonies. If so established, those two special circumstances are proven even if the felony of kidnapping or arson is committed primarily or solely for the purpose of facilitating the murder.

(18) The murder was intentional and involved the infliction of torture.

(19) The defendant intentionally killed the victim by the administration of poison.

(20) The victim was a juror in any court of record in the local, state, or federal system in this or any other state, and the murder was intentionally carried out in retaliation for, or to prevent the performance of, the victim’s official duties.

(21) The murder was intentional and perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person or persons outside the vehicle with the intent to inflict death. For purposes of this paragraph, “motor vehicle” means any vehicle as defined in Section 415 of the Vehicle Code.

(22) The defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang.

"A lot of categories, using a lot of words" isn't the same thing as "large scope". There are a lot of words in your list, and it contains a lot of categories, but it's not a large scope--that entire list has a smaller scope than if the list was just replaced with "has committed a murder".

It's like observing that a store has for sale "half gallon milk, and gallon milk, and chocolate milk, and pints of milk, and condensed milk", and saying "look how many things they have on sale! That's a lot more than if they just had all their milk on sale".

Dude, I never once said that the scope was particularly large in an absolute sense. I merely noted that the scope was larger than what the OP claimed it was.

"I just made a random statement that is literally accurate, but has no relevance to the argument", as if you just posted a 25 paragraph nitpick, is a common excuse in places like this, but not a believable one. You said it to imply that the scope was so large that it wasn't restricted to serious crimes.

No, that is simply not why I said it. Killing a witness is obviously a serious crime, as is killing a judge, as are gang crimes, as is everything else on that list. And, please see, eg, my later comment in which I note that there are other, public policy based, reasons for imposing the death penalty, other than how horrific it is.

But, the reality is that the categories of death-eligible crimes has expanded far beyond the scope of such extreme crimes.

It has not. "Extreme," in this case, is a measure of severity, not rarity.

There is not a single item on your list where the guilty criminal is routinely sentenced to death in CA, much less executed. The number of crimes committed in CA where the criminal deserves death considerably outnumbers the number of actual executions. Which is at least directional evidence towards the system working properly! Organized justice should lead to fewer executions, because of all the countervailing moral considerations involved that balance against justice.

The implication that CA--of all places!--is too quick and/or indiscriminate in its application of capital punishment is ridiculous.

I did not remotely say that CA is too quick or too indiscriminate in applying the death penalty. I don't know why people insist on thinking everything is a normative claim. I merely described the categories of crimes that are death eligible."

Nor do I think that OP was meant "rare" when they said " The death penalty exists because horrific crimes exist where any lesser punishment is obviously insufficient." It was I who used the term "extreme," as a perhaps poorly chosen synonym for "horrific."

Nor did I say that people who commit those crimes are routinely sentenced to death. But the fact remains that we don’t really know what pct of those sentenced to death in the US committed crimes that were "horrific" in the sense used by OP, nor in the sense used by those who make similar claims (which are quite common).

I don't know why people insist on thinking everything is a normative claim.

Conversational implicature.

If you weren't saying it to imply something normative, you'd have no reason for saying it at all.

Oh, nonsense. Not everyone is an infant.

There is not a single item on your list where the guilty criminal is routinely sentenced to death in CA, much less executed. The number of crimes committed in CA where the criminal deserves death considerably outnumbers the number of actual executions.

Despite that long list, no one has been executed in California for nearly 17 years. With a freeze on capital punishment in a one-party state with no serious advocates to reverse it, that list could grow or shrink by 100x and it would be insignificant.

Crimes that may occur with unfortunate or surprising regularity can still be extreme. Are there any specific crimes on the list you provided that you find unwarranted?

I suspect without much effort I could identify more crimes I'd add to the list. Any number of sexual violent crimes against children or the elderly that don't necessarily result in death I'd happily add to the list.

The point is not whether any particular crime warrants the death penalty. The issue is whether the OP is correct that the death penalty is reserved for particularly horrific crimes. I don't know that poisoning is per se particularly horrific. Nor is shooting someone from a car more horrific than doing so on foot. Nor does the fact that I am motivated by gang affiliation render my murder more horrific than the same act which is motivated by jealously.

Of course, there might well be sound public policy for making those crimes death-eligible, but as I said, the question is not whether any one of those crimes merits the death penalty on any basis, but rather whether, in fact, the death penalty is reserved for particularly heinous crimes.

Poisoning someone to death is more horrific than picking their pocket. Given the routes of administration often involve adulteration of food or medicine the distrust and suspicion it breeds can have a larger impact.

Being shot and killed from a passing car makes walking the streets unsafe in much the same way a bomb attack strikes terror. It has a more indiscriminate appearance.

Shooting me because you need to blood-in to your gang is more horrific to many than shooting the rake with your wife.

  1. Yes, poisoning someone is more horrific than picking their pocket. But, we are talking about types of murder. No one is arguing that poisoners should not be punished more harshly than pickpockets.

  2. Yes, driveby shootings probably have more serious effects than most other murders. But I already said that "there might well be sound public policy for making those crimes death-eligible."

How in your view is the 'sound public policy' category different from the horrific category? I see the former flowing from the latter.

The horrific can be multidimensional, not all horrific murder is horrific in the same way. It could be horrific due to a particular gruesome nature of the offense, it could be horrific due to the impact it has on the larger community, it could be horrific as it strikes at the foundations of our society. There are good public policy reasons for capital punishment for many horrific offenses.

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Why does the death penalty have to be about deterrence as opposed to revenge/justice? If it’s a bad enough crime, anything short of killing him feels wrong. Just let the prisoner give a short speech before hanging publicly

Why does the death penalty have to be about deterrence as opposed to revenge/justice?

If it's about justice, then the state does have an interest and a right to use it. If it's about revenge, we moved from private blood feuds to having the state prosecute on our behalf for the very reason of doing away with revenge. Revenge is not proportionate and it is not just. It is the worst impulses of our nature and if we're trying to improve life for everyone, to be more civilised and rational and considerate and less stabbing each other in the eyes over a crust of bread, then we can't indulge the cruel, mean and vicious elements of human nature even if we make the state the agency to do that.

There are crimes when reported, of such cruelty and wickedness, that my immediate vindictive reaction is "so-and-so should be slowly tortured to death for this". But that's wrong, that is the mean vicious part of my nature speaking out, and so-and-so did not silence that part but indulged it, which is why they are in jail for that crime. Torturing so-and-so to death is not justice, it's wanting to be a sadist and declaring myself just.

I'm anti-death penalty and anti-abortion, for much the same reasons: the state does not have the right to declare that this life is forfeit. It's a complicated issue, and some Catholics are pro-death penalty and some, like myself, against it. I do think that the deterrent element has been shown not to work, even from an early period. Thieves and pickpockets would be operating in the crowds gathered to watch a public hanging of someone being executed for theft. People operating under a fit of passion are not contemplating "If I stab George for fucking my wife, I will be hanged". People who planned out murders tried to do so in such a way that they would not be caught. Some people were deterred, but most people took the chance of getting away with crimes.

Why does the death penalty have to be about deterrence as opposed to revenge/justice?

It doesn't. That's just one justification sometimes given.

If it’s a bad enough crime, anything short of killing him feels wrong.

Sure, if we know they're guilty. I'm agreeing with the OP--too often that's not the case.

I firmly believe that there are situations in which a bullet through the brain-stem and an unmarked grave is the morally correct response. Do I trust the lawyers and bureaucrats who comprise our legal system to to make that determination? No, not really.

So inspite of being nominally in favor of the death penalty, I find myself in the opposition camp.

It is odd that you fall back on blaming "lawyers and bureaucrats" when it is juries that decide whether to impose the death penalty.

Judges determine sentencing, not juries. Juries determine the verdict prior to sentencing.

That is incorrect, in regard to the death penalty.

The jury is still only finding facts as regarding the sentencing enhancements. If the jury finds those facts support the death penalty, it is still up to the judge whether to impose that or some lesser punishment. Importantly, the jury is not supposed to consider the appropriateness of the sentence even in those cases, but simply whether the factual requirements are met.

That is not correct. A jury absolutely considers the appropriateness of the sentence. That is what happens at the penalty phase. The jury weighs the aggravating circumstances versus the mitigating circumstances. See, eg, here

I wrestle with this a lot. The problem is that I cannot imagine a society in which the justice system is functional and honest and honors the spirit of the law as much as its letter...but also has to deal with the crime, disorder, and lack of public trust problems that our current governments do. Corruption, decay, and criminality feed ravenously on idealistic purity until everyone's down at their level just to survive. So paradoxically the society which needs the judiciously and wisely-administered death penalty the most, is precisely the one that one ought to trust least with carrying it out. I don't have a good answer for this.

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