Friday, July 26, 2013

In Which I Set Up a Straw Man and Then Knock Him Down

The story, attributed to most every wag of the 20th Century; I like to think it was George Bernard Shaw:
"Madame," Shaw said to the elegant matron, "would you sleep with me for a million pounds?"
"I suppose so," she replied.
"Then, would you sleep with me for 10 pounds?"
"Certainly not.  What sort of woman do you think I am?"
"We've established that," Shaw answered.  "Now we're haggling over the price."
 Last night I went to a debate on the death penalty.  

As I listened to the pro-DP side fumbling their commentary and analysis and facts and trying to deal with the fact that one of the folks in the audience was Joe D'Ambrosio who spent some 22 years on death row for a crime he didn't commit, I thought that I could have done a better job making their case than they did. 

The problem wasn't just that they couldn't seem to muster any passion for or real commitment to their position.  And it wasn't just that they were fumbling and troubled every time they looked over at Joe who stood there, arms crossed, just staring at them.  The real problem is that they didn't know, or couldn't focus on, their only real argument.

They kept getting sidetracked.  So one of them explained that without the death penalty victim family members would themselves stalk and kill the killers.  That's just silly.  The alternative to the death penalty isn't immediate release after conviction.  In many states, the only alternative sentence to execution is death in prison.  In other states (Ohio for instance) death in prison is one alternative.  Possible death in prison but a chance (not a promise, a chance) of released decades in the future is the other possibility.  

But look, deterrence is iffy at best.  The studies are all over the place and all are problematic.  Anecdotally, we know that there are some few people the possibility of execution deterred, some few who killed in the hope that they'd be able to remove all witnesses and thereby avoid the possibility of execution, and some few who killed in order to get executed. It's likely a wash, and in any case there are pretty clearly more effective ways of reducing the number of horrific crimes than by executing folks.  If the goal is reducing killing, use the money and resources we pump into execution on some of those things instead.

And closure is a lie.  There is none.  People don't get over the loss of a loved one by watching someone else be killed.  But that second killing creates more folks who grieve.  More innocent collateral damage from more not-so-friendly fire.

Thane Rosenbaum would have us kill in revenge.  It's a prospect deeply troubling, not least because revenge is personal but legal execution isn't.  It's not just that the killing is so clinical that it satisfies none of the visceral desire for revenge.  It's also that the whole idea of transferring to government the right to avenge a personal loss (and really, that's the only kind at issue) takes away the whole point of the thing.  And aren't we, at that point, really supposed to just do what the survivors prefer?  Or say that the dead person would prefer?  And what if they disagree?

No, the only good argument for the death penalty is retribution.  Some crimes are just so horrific that it's the only proper response.  Do unto others and it will be done unto you. At least, that's the argument.  What else do you do with Hitler? with Stalin? with Pol Pot? with Idi Amin? And there's some force to it.  But only some. 

Once you're there, once you've accepted the premise, then where do you stop?  How many must you kill?  Or how few?  Does it matter how brutally?  Do we cut a plea bargain (as they did, effectively, with Idi Amin)?  But then what if Hitler had won?  

History, you know, is written by the winners.  And from the winners' perspective the numbers of the dead are irrelevant.  The cause was just.  They deserved it.  Needed killin'.  

And there's Ted Bundy and John Wayne Gacy and Charles Manson (who's still alive, and still hanging out in prison of course, yet the republic survives) and Steven Hayes and Joshua Komisarevsky and my clients and.  Damn, where do we stop?

Who, after all, is the worst of the worst and how do we know that we haven't screwed up and killed someone who isn't.  And then what are we?

And what do we do with the volunteers?  How does it satisfy a sense of fit justice to do unto them what they wish?  Shouldn't it be that the person who wants to be killed gets LWOP but the person who prefers LWOP gets killed?  And how do we figure out whose public preference is real?  And frankly, isn't the whole exercise at that point just a little bit silly?  And tawdry?

And of course, there will be mistakes.  It's inevitable.  We can argue about odds and numbers and even (although the evidence is really pretty clear by now) whether it's actually happened.  But it's a mathematical certainty that if we kill enough folks we'll kill some factually innocent ones along the way.  I suppose that's it's own strange kind of warning.
Don't be innocent in Talahassee!
And there's the thing about how you can't make omelets without breaking eggs.   But nobody actually says you have to have an omelet.  And how many innocent folk are too many? 

Which just naturally leads to early Dylan.

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