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Notes -
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.
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.
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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).
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.
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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.
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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.
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.
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
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.
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It doesn't. That's just one justification sometimes given.
Sure, if we know they're guilty. I'm agreeing with the OP--too often that's not the case.
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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
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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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