False Choices

It was a death penalty case.  When the jury came back with LWOP (twice, and the sentences were made consecutive so that after the guy dies in prison he doesn't get out until his second life without the possibility of parole sentence is completed), we hugged and smiled.

It was, after all, a win.  We cheated the hangman.

And yet.

INTERRUPTION

This is not a post about the horror of LWOP.  Nor is it a post about the death penalty.  It's a post about oversimplification and false dilemmas.

Kierkegaard offers Either/Or.  Kant teaches that there's a Categorical Imperative.  Each of the Abrahamic religions (and others, too) and each of their subsets believes that it alone has the truth and, by extension, that everyone else is wrong (factually, doctrinally, howeverly).

Some find comfort in those absolutes.  But the world is inevitably more nuanced and subtle.

Einstein famously responded to the necessary uncertainty of quantum mechanics by observing that 

God does not throw dice.

But Einstein never managed to figure out a way to get around the uncdertainty.

Schroedinger's cat, both alive and dead.  Neutrinos that travel faster than the speed of light (or don't).

END INTERRUPTION

As I was saying,

And yet.

There were lots of odd facts in the case, things that might have raised doubts.  Things that simply didn't fit.  The DNA you'd expect to find (not need to find, but expect to) if he were guilty, for instance, and the eyewitness ID that wasn't.

And there were serious legal questions.  Should that piece of evidence have been admitted?  Should this one have been excluded?  The juror who lied during voir dire, the lie discovered before trial began, but who the court refused to exclude.  And especially the constitutionality of the particular provision of the law under which he was tried.

I'm not saying he was factually innocent.  I don't know that.  Certainly there was plenty of evidence from which it could be inferred that he was guilty.  But there are oddball things that might leave you wondering about the fairness and justice of it all.

And see.

If he'd been sentenced to die, they'd have been pursued.  By lawyer after lawyer, through court after court.  Maybe he'd have gotten relief some day.  Perhaps a new trial.  Perhaps only a new sentencing (at which he could well have ended up with the same consecutive LWOP sentences he did get).

Or maybe, just maybe, there's at least a chance that someone would have turned up hard evidence that he was factually innocent.

But he wasn't sentenced to die.  He got LWOP.  He had a single appeal.  Denied.  Filed a couple of things pro se.  Denied.

And so he rots.

Because LWOP doesn't get examined the same way as death - death being different and all, which it is, but still.  You don't have guarantees of further appeal.  You don't have court appointed lawyers and agencies and volunteers to keep the case going, to keep looking, however slim the odds.

And that "however slim the odds" thing?  Lightning strikes.  The unlikely happens.

Once in a while, not often, but once in a while.

Which brings me to "Justice After Troy Davis," Ross Douthat's Op-Ed in today's Times.  Here's how Douthat begins.

IT’S easy to see why the case of Troy Davis, the Georgia man executed last week for the 1989 killing of an off-duty police officer, became a cause célèbre for death penalty opponents. Davis was identified as the shooter by witnesses who later claimed to have been coerced by investigators. He was prosecuted and convicted based on the same dubious eyewitness testimony, rather than forensic evidence. And his appeals process managed to be ponderously slow without delivering anything like certainty: it took the courts 20 years to say a final no to the second trial that Davis may well have deserved.
For many observers, the lesson of this case is simple: We need to abolish the death penalty outright. The argument that capital punishment is inherently immoral has long been a losing one in American politics. But in the age of DNA evidence and endless media excavations, the argument that courts and juries are just too fallible to be trusted with matters of life and death may prove more effective.

Put aside the question of whether he's right about the power of fallibility to move the masses.  Yes, there's a significant body of evidence to support that view.  On the other hand, polls consistently show (for whatever they're worth) that most people agree the death penalty doesn't deter, that most people agree we've executed factually innocent folk, and that most people - including most of those who don't think the death penalty deters and who believe that we sometimes kill the factually innocent still favor the death penalty.

But put that aside, because it's not where Douthat is going and it's not where he runs off the rails.  That happens in the next paragraph.

This is a healthy fear for a society to have. But there’s a danger here for advocates of criminal justice reform. After all, in a world without the death penalty, Davis probably wouldn’t have been retried or exonerated. His appeals would still have been denied, he would have spent the rest of his life in prison, and far fewer people would have known or cared about his fate. 

So?  Without the death penalty, Troy Davis still wouldn't have gotten relief, but he also wouldn't have become famous.  He'd just be doing life today rather than having been murdered Wednesday.

Damn.  That's an argument for something being wrong with abolition?

In fact, for Douthat it apparently is, though he never exactly ties it up, and I don't really understand how it connects.

Here's Douthat's real point.  The system is altogether fucked up.  If we abolish the death penalty because it's so badly fucked up and so prone to error, we're left with a hopelessly fucked up system that just doesn't kill people.

And that's a bad thing because the alternative is to develop a really good and fair and just system that doesn't make so many mistakes and isn't too badly fucked up but that does kill people.

Don't believe that that's what he says?  Here's his language.

Fundamentally, most Americans who support the death penalty do so because they want to believe that our justice system is just, and not merely a mechanism for quarantining the dangerous in order to keep the law-abiding safe. The case for executing murderers is a case for proportionality in punishment: for sentences that fit the crime, and penalties that close the circle.
Instead of dismissing this point of view as backward and barbaric, criminal justice reformers should try to harness it, by pointing out that too often our punishments don’t fit the crime — that sentences for many drug crimes are disproportionate to the offenses, for instance, or that rape and sexual assault have become an implicit part of many prison terms. Americans should be urged to support penal reform not in spite of their belief that some murderers deserve execution, in other words, but because of it — because both are attempts to ensure that accused criminals receive their just deserts.
Abolishing capital punishment in a kind of despair over its fallibility would send a very different message. It would tell the public that our laws and courts and juries are fundamentally incapable of delivering what most Americans consider genuine justice. It could encourage a more cynical and utilitarian view of why police forces and prisons exist, and what moral standards we should hold them to. And while it would put an end to wrongful executions, it might well lead to more overall injustice. 

See, we can't fix the system, he says, unless we're willing to murder people.

Which is . . . .  How do I want to put this?

Stupid.

Really, really stupid.

Fucking nuts.

The system is screwed up.  We allow, even encourage, corruption.  We allow, even encourage, cops to lie and prosecutors to cheat.  We allow, even encourage, junk science and dishonest forensic experts.  We allow, even encourage that, while steadfastly and with straight faces decrying it.  Because, after all, as the courts and legislatures and executives too often mean if they aren't quite honest enough about it to say,

Close enough for government work.

And then we lock 'em away, the guilty and the innocent, in prisons that are overcrowded, brutal, venal places.  Too often corruptly run.  Far too violent.

Self-perpetuating, those prisons breed recidivists.  They largely avoid all but cosmetic efforts at rehabilitation.  And as they routinely provide inadequate medical care and almost no psychological care, the conditions of confinement actually create psychosis.

And none of this can be cured, Douthat says, unless we're willing to murder some folks.  Because if we abolish the death penalty, it means that we'll have thrown our hands up in disgust.

Which, as I said, is just stupid.

It's not a zero-sum system.  It's perfectly possible, at least in theory, to fix the system and abandon the idea that an occasional murder is a good thing.

Oh, we'll never get the system perfect.  Just as we could never ensure that a system with a death penalty won't sometimes kill the wrong folks (assuming, of course, that there are right folks).  Human fallibility and frailty assure imperfection.  But Douthat's analysis assumes not human imperfection but something far worse.  It's not that we can't do it all (even imperfectly), but that we won't.  As long as we don't kill, he says, we'll be happy with a system that relies on lying, cheating, and corruption.  As long as we don't kill, he says, we won't give a shit about anything else.

But if we keep killing, then we'll somehow be compelled to make it all better.

Though damned if I can figure out just why.

It may be true that you can't make an omelet without breaking some eggs.  But that's not the right metaphor for Douthat's argument.  Rather, he says that you can either have an omelet with broken eggs or you can starve.  There really are other choices.

And for the record, I'm not clear about just how and why Troy Davis, who'd still be alive but not freed if there were no death penalty, would be worse off than if he'd gotten his death sentence commuted to LWOP then if he'd gotten LWOP in the first place.

UPDATE

Doug Berman buys into Douthat's silly argument which he claims as his own. He writes,

I am very pleased to see the op-ed page of the New York Times reflecting similar sentiments.

Sigh.