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ZorbaTHut  2yr ago (text post)   36019 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!"

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