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June 25, 2012 9:10 AM   Subscribe

Today the Supreme Court announced their 5-4 decision for Miller v. Alabama and found that mandatory life without parole sentences for juveniles who commit murder are unconstitutional.

While this is a progressive leap for the Supreme Court, they did not approach the wider question of whether a juvenile life sentence could be justified after the consideration of individual factors. As a result life without parole for juveniles could still remain a sentencing option for judges but it cannot be forced on them by the legislature.

More coverage as always at SCOTUSblog.
posted by Talez (165 comments total) 10 users marked this as a favorite

 
Even a broken clock is right twice a day.
posted by double block and bleed at 9:16 AM on June 25, 2012 [9 favorites]


The Supremes also struck down most of the Arizona immigration legislation. They left intact the stop-and-ask-for-papers part.

Looks like they're giving the Obama administration a couple of wins before they smack-down most, if not all, of AHA.
posted by Thorzdad at 9:17 AM on June 25, 2012 [3 favorites]


Jackson accompanied two other boys to a video store to commit a robbery; on the way to the store, he learned that one of the boys was carrying a shotgun. Jackson stayed outside the store for most of the robbery, but after he entered, one of his co-conspirators shot and killed the store clerk.

This kid didn't murder anybody.
posted by goethean at 9:18 AM on June 25, 2012 [1 favorite]


This kid didn't murder anybody.

Felony murder.
posted by Sticherbeast at 9:21 AM on June 25, 2012 [8 favorites]


4 judges want kids to get off their lawns already.
The theme of the dissents is that the Court should have been more deferential to the moral judgments enacted by state legislatures, who are in a better position to determine the seriousness of crimes and to calibrate penalties appropriately.
Wasn't the majority opinion that state legislatures didn't 'determine the seriousness of crimes and calibrate penalties appropriately'? And that such calibration is still within their power? It's like the justices are reading from two different scripts.
posted by muddgirl at 9:21 AM on June 25, 2012 [2 favorites]


The dissents also expressed the view that the Court’s Eighth Amendment jurisprudence has become unmoored from objective standards, and that decisions like Graham and the decisions today continue that trend.

Yes, because, as we all know, the twenty-first century is going to go down as the one in which protection from "cruel and unusual punishment" was too broadly and subjectively applied.
posted by R. Schlock at 9:22 AM on June 25, 2012 [11 favorites]


Under the law, participation in a felony which results in a death is murder. Under the law, there was no sentencing discretion and the conviction carried a mandatory life sentence without parole. This court, in a very narrow ruling, said that you cannot have mandatory life sentences without parole for 14-year-olds. I agree, but it's not a radical change to the law.
posted by crush-onastick at 9:22 AM on June 25, 2012 [2 favorites]


muddgirl: "It's like the justices are reading from two different scripts."

I have long believed this.
posted by IAmBroom at 9:24 AM on June 25, 2012


Under the law, participation in a felony which results in a death is murder.

The rule is a critical one. It prevents more powerful criminals from making lesser criminals the trigger man in a felony and to escape the punishment that they deserve as the architect of the crime. The rule is simple, if you go to commit a major felony, you should know that you can be charged with any death that is a result, including the death of a co-conspirator or a police officer responding to the crime.
posted by Ironmouth at 9:25 AM on June 25, 2012 [27 favorites]


The 5 members, republican appointees, are the best that money can buy.
posted by photodegas at 9:26 AM on June 25, 2012 [1 favorite]


Thorzdad: "They left intact the stop-and-ask-for-papers part."

Incorrect. The statute that was left intact only allows police to check the status of people who are already being detained for other reasons. Ie. if you're being arrested, the police are empowered to verify your immigration status.

It's got potential for abuse, but it's far from the worst part of the law.
posted by schmod at 9:26 AM on June 25, 2012 [2 favorites]


The court today also ruled against the Montana Supreme Court ruling that contravened Citizens United 5-4, with the division as you'd expect. Justice Scalia wrote the majority decision, which begins "Who the fuck do you little pissants think you are to tell us we were wrong?"

(Well, not really, but that's what really happened here.)
posted by mightygodking at 9:26 AM on June 25, 2012 [10 favorites]


Incorrect. The statute that was left intact only allows police to check the status of people who are already being detained for other reasons. Ie. if you're being arrested, the police are empowered to verify your immigration status.

But, as the decision itself points out, you can detain someone for jaywalking, and then ask for their papers. SCOTUS basically instructed Arizona how to get around their decision.
posted by roomthreeseventeen at 9:27 AM on June 25, 2012 [1 favorite]


Someday I would really like to see a thread full of lawyers discussing systems administration.
posted by cribcage at 9:29 AM on June 25, 2012 [112 favorites]


From the SCOTUSBlog Post:
The decision also provoked three separate dissenting opinions, by the Chief Justice, by Justice Thomas, and by Justice Alito, who read his opinion from the bench. The theme of the dissents is that the Court should have been more deferential to the moral judgments enacted by state legislatures, who are in a better position to determine the seriousness of crimes and to calibrate penalties appropriately.
Are these guys for real? If state legislatures are better equipped to judge the severity of crimes than the courts, why do we bother having courts at all?
posted by schmod at 9:29 AM on June 25, 2012 [7 favorites]


Looks like they're giving the Obama administration a couple of wins before they smack-down most, if not all, of AHA.

This is not how the Supreme Court works.
posted by Pontius Pilate at 9:29 AM on June 25, 2012 [21 favorites]


Meh. Montana's supreme court, which is Constitutionally required to follow U.S. Supreme Court precedent, basically said “Citizens United doesn't apply in Montana because reasons, that's why.” Plus ten points for having their hearts in the right place, minus several million for style.
posted by Holy Zarquon's Singing Fish at 9:30 AM on June 25, 2012 [3 favorites]


Justice Scalia wrote the majority decision, which begins "Who the fuck do you little pissants think you are to tell us we were wrong?"
The question presented in this case is whether the holding of Citizens United applies to the Montana state law. There can be no serious doubt that it does. See U. S. Const., Art. VI, cl. 2.
It was damn close.
posted by Talez at 9:31 AM on June 25, 2012 [6 favorites]


Ironmouth wrote: The [felony murder] rule is a critical one. It prevents more powerful criminals from making lesser criminals the trigger man in a felony and to escape the punishment that they deserve as the architect of the crime.

And your justification for mandatory life sentences is ...?
posted by Joe in Australia at 9:33 AM on June 25, 2012 [3 favorites]


And your justification for mandatory life sentences is ...?

Stop putting words in his mouth. He didn't say a damn thing about them.
posted by Talez at 9:34 AM on June 25, 2012 [32 favorites]


This court, in a very narrow ruling, said that you cannot have mandatory life sentences without parole for 14-year-olds. I agree, but it's not a radical change to the law.

And it will change absolutely nothing. How many murderers get paroled in Alabama each year? I'd bet I can count them on one finger.

Sure, you get life with parole and never get paroled. Baby steps, eh.
posted by mrgrimm at 9:35 AM on June 25, 2012


the Court should have been more deferential to the moral judgments enacted by state legislatures, who are in a better position to determine the seriousness of crimes and to calibrate penalties appropriately.

I'm sure they'll be just as deferential to the President, the Senate, and Congress regarding the AHA.

This is not how the Supreme Court works.

I wish I could say I agreed with you, Pontius Pilate, but I think this week will provide strong counter-evidence. The level of politicization of the SCOTUS is breathtaking.
posted by dry white toast at 9:38 AM on June 25, 2012 [3 favorites]


"They left intact the stop-and-ask-for-papers part."

My understanding is that it didn't leave it intact, but it allowed enforcement of the law while it is being argued in front of the Circuit Court. Basically, "We think this won't get struck down." It's a minor thing, but it means we'll have to have this fight again, no?

The rule is simple, if you go to commit a major felony, you should know that you can be charged with any death that is a result, including the death of a co-conspirator or a police officer responding to the crime.

There was a case in Texas where, while committing a robbery, one of the conspirators ran into the current boyfriend of his ex-girlfriend, and killed him. The getaway driver was convicted of felony murder and given the death penalty (although Perry commuted his sentence to life-without-parole). It may be a necessary law, but it's easily abused if it doesn't ask for a certain level of 'conspiracy'.
posted by muddgirl at 9:38 AM on June 25, 2012 [6 favorites]


Matters to the over 2,000 juveniles currently serving lifr without parole sentences under mandatory sentencing regimes.

...and the fact that the Court is expressing some willingness to broaden the conception of "unusual."
posted by likeatoaster at 9:39 AM on June 25, 2012 [3 favorites]


The theme of the dissents is that the Court should have been more deferential to the moral judgments enacted by state legislatures, who are in a better position to determine the seriousness of crimes and to calibrate penalties appropriately.

Same deal with Scalia's dissent on SB 1070: it's the local authorities' responsibility.

Compare that with Montana's position wrt to its campaign finance law (our state's history is rife with political corruption; we've seen first hand the effects of unregulated money in politics, thus we can say with confidence that unregulated money does lead to corruption or the appearance of corruption, contrary to the Court's opinion on CU).
posted by notyou at 9:42 AM on June 25, 2012 [4 favorites]


These guys aren't even fucking trying anymore. The reasoning between the Arizona decision and the Montana decision are in direct opposition to each other.
posted by Benny Andajetz at 9:47 AM on June 25, 2012 [5 favorites]


between of
posted by Benny Andajetz at 9:48 AM on June 25, 2012


Not much to say about the main decision. I'm not partial to broad mandatory sentencing rules so this decision on the whole sits fine with me, but I'm sure the devil is in the details. On the tangential stuff:

Best case scenario for AHCA, if the Supreme's majority decides that public faith in the integrity of the system can survive yet another round of blatantly partisan decisions (I'm not sure that ship hasn't already sailed, though): the court effectively destroys the modern private health insurance industry in the US and lays the groundwork for the unavoidable creation of a true public health care system, by rejecting the mandate but letting the rest of the law stand (assuming Romney doesn't capture the POTUS and allow for a full repeal).

The partisans on the SCOTUS may be thinking they've got a golden political opportunity here, because striking the mandate will almost certainly superficially seem to "vindicate" the right wing political orthodoxy on intervention in the markets a few years down the road.

Can't you almost hear the refrain now: "What do you mean there's another industry going into collapse and threatening to drag the US economy back/deeper into recession and it's clearly, immediately the fault of those few portions of 'Obamacare' the court allowed to stand? See? This is what all that liberal do-goodering gets you!"

I am a little nervous that the media coverage of the rulings this week seem so conspicuously designed to emphasize the court's willingness to come out on the same side as the administration (even though really, as in the Arizona show me your papers case, they didn't actually side with the administration on the points of law that really mattered). But then again, the new Citizens United ruling against Montana came out just now, too, and that decision is clearly in keeping with the majority's partisan political commitments since those commitments even obviated recourse to the usual conservative, strict-constructionist "states rights" feint.
posted by saulgoodman at 9:51 AM on June 25, 2012 [3 favorites]


This is huge. Discretion in sentencing can mean everything, especially with a first offense. Celebrating this with those in the office today.
posted by agregoli at 9:51 AM on June 25, 2012 [3 favorites]


And your justification for mandatory life sentences is ...?

What?
posted by OmieWise at 9:52 AM on June 25, 2012


I don't know about this ruling. With this case, I am all for life without parole. What, if you're underage, you have no clue that murder is wrong? I just don't see the brutality that gang committed as something that would never happen again.
posted by stormpooper at 9:53 AM on June 25, 2012 [1 favorite]


Judges can still hand out life-without-parole sentences when the facts warrant it. The legislature can't order then to hand out life without parole regardless of the facts.
posted by Holy Zarquon's Singing Fish at 9:56 AM on June 25, 2012 [3 favorites]


I am all for life without parole. What, if you're underage, you have no clue that murder is wrong?

This is about legislating mandatory life sentences.
posted by OmieWise at 9:57 AM on June 25, 2012 [2 favorites]


I don't know about this ruling. With this case, I am all for life without parole. What, if you're underage, you have no clue that murder is wrong? I just don't see the brutality that gang committed as something that would never happen again.

The ruling only struck down mandatory life without parole sentences for minors convicted of murder. This ruling says that judges have the freedom to determine whether or not such a sentence is appropriate in any particular case.
posted by Sticherbeast at 9:57 AM on June 25, 2012 [1 favorite]


I don't know about this ruling. With this case, I am all for life without parole.

As I understand it, the ruling doesn't forbid life without parole for juveniles categorically, merely that it not be a mandatory sentence. Particularly horrific crimes committed by 17+ year olds would still have a good chance at such a sentence, whereas accomplice to murder by a 14 year old would not. Seems reasonable to me.
posted by dsfan at 9:57 AM on June 25, 2012 [3 favorites]


I don't know about this ruling. With this case, I am all for life without parole.

But I think the point of this is that judges get to decide; that case is different from the one in question so perhaps they should have different sentencing outcomes.
posted by Mrs. Pterodactyl at 9:58 AM on June 25, 2012


Whoa, should have previewed. Sorry to pile on!
posted by Mrs. Pterodactyl at 9:58 AM on June 25, 2012


What, if you're underage, you have no clue that murder is wrong?

We commonly accept that minors do not have a full adult capacity to process information, to reason, etc. It's why we don't let them vote, or drive, or drink, or serve in the military, or buy pornography or weapons, or get married without parental consent. I don't think it's at all unreasonable to extend that... benefit of a doubt to minors who commit crimes, even the crime of murder. And as noted, judges can still hand down that sentence if the facts of the case warrant it (or if the judge hates kids, or hates people of the race of the defendant, or one of the dozens of other factors that go into sentencing).
posted by muddgirl at 9:58 AM on June 25, 2012


What, if you're underage, you have no clue that murder is wrong?

That's why we let fourteen year old kids drink, smoke, vote, get married, serve in the armed forces, and drive, right? They obviously have clear concepts of right and wrong, are in complete control of their mental faculties and understand every possible consequence of their actions.

Kids fuck up. Some more than others. Some a LOT more than others.

My question is why when a kid murders someone supposedly civilized society starts yelling "BURN THE MURDERER AT THE STAKE!" instead of asking "why did this kid fuck up so badly?"
posted by Talez at 9:59 AM on June 25, 2012 [20 favorites]


Got it, stormpooper?
posted by notyou at 9:59 AM on June 25, 2012 [1 favorite]


stormpooper: "I don't know about this ruling. With this case, I am all for life without parole. What, if you're underage, you have no clue that murder is wrong? I just don't see the brutality that gang committed as something that would never happen again."

stormpooper, pay attention to the definition of "felony murder" given about. Individual anecdotes about how "this here guy totally deserved it!" are not really helpful.

What you are implying is that, if a child participates in a robbery, AND a death results from that robbery (because, for instance, the adult organizer/gang leader shot someone because he's a psychopath), you believe that child should suffer a life imprisonment.

I doubt you actually believe that.
posted by IAmBroom at 10:00 AM on June 25, 2012 [1 favorite]


Perhaps the 14 year old did not understand the "involved in committing a felony that results in death" nuance of state law because they did not cover it when the 14 year old went to law school.
posted by Cookiebastard at 10:03 AM on June 25, 2012 [27 favorites]


But, as the decision itself points out, you can detain someone for jaywalking, and then ask for their papers. SCOTUS basically instructed Arizona how to get around their decision.

In thuis they're following the example of the Liberal and Tolerant Netherlands, where by law a police officer can ask you for your papers and it's a criminal offence not to have them on you if you're asked to produce them, but -- be reassured -- they can only ask for them if they have a reasonable doubt a crime has been committed or they're in the process of investigating a crime.
posted by MartinWisse at 10:04 AM on June 25, 2012


The level of politicization of the SCOTUS is breathtaking.

I hope this will not be a derail, but "The Roberts court is finding laws unconstitutional and reversing precedent — two measures of activism — no more often than earlier courts." (NYT). (Author argues that despite the numbers, the Court is shifting toward conservative results.)
posted by spacewrench at 10:08 AM on June 25, 2012 [1 favorite]


@talez, I really don't see the victim's families giving two cents about why the kid messed up so badly. I'll ask my friend whose father was shot and killed by an underage kid during a robbery. He died when my friend was 12.

@Cookie, I just feel that sometimes yes, we should put the responsibility on a 14 year old. You mean to tell me a 14 year old doesn't understand the difference between hanging with a known thug who is a trouble maker and staying away from known trouble making thug? You see that "friend" of yours robbing, killing, selling drugs, whatever, something doesn't click "hmmm maybe this person is holding me down, back, is a jerk?" Maybe we need to start having 14 year olds stop acting like punks and start thinking?

Everyone is entitled to their opinion.

For the mistake in reading the manditory, my error. So yea, I "got it".
posted by stormpooper at 10:10 AM on June 25, 2012 [1 favorite]


Sorry, that's a 2010 article. I just encountered it in a post at The Volokh Conspiracy.
posted by spacewrench at 10:11 AM on June 25, 2012


@talez, I really don't see the victim's families giving two cents about why the kid messed up so badly. I'll ask my friend whose father was shot and killed by an underage kid during a robbery. He died when my friend was 12.

Getting vengeance won't bring your friend's father back and won't figure out why kids fuck up and kill people in the first place to try and stop other kids from doing the same thing in the future.
posted by Talez at 10:13 AM on June 25, 2012 [5 favorites]


Mandatory sentences (as opposed to clear guidleines) for just about any crime are a bad idea. I'm a very law and order person and I believe that, yes, there are people who deserve life without parole, but to apply to every single case is just stupid.
posted by jonmc at 10:17 AM on June 25, 2012 [5 favorites]


You mean to tell me a 14 year old doesn't understand the difference between hanging with a known thug who is a trouble maker and staying away from known trouble making thug?

Their choices may be limited (or perceived to be limited, which amounts to the same thing). And neurologically, the brain of a 14-year-old is literally incomplete. They are biologically incapable of making the kinds of judgements and decisions that 25-year-olds can. The vast majority of 14-year-olds make terrible decisions that only affect themselves, or have non-criminal effects, and we never read about them in newspapers.
posted by rtha at 10:18 AM on June 25, 2012 [5 favorites]


Kids fuck up. Some more than others. Some a LOT more than others.

My question is why when a kid murders someone supposedly civilized society starts yelling "BURN THE MURDERER AT THE STAKE!" instead of asking "why did this kid fuck up so badly?"


And my question for you is: why should we care about the kid in question? Why is he entitled to more compassion that the person he murders?

Ultimately, I think "society" is simply a set of compromises that allow people to get together without chaotic violence. If people can't abide by those rules - regardless of the reason - then they need to be removed from society. This isn't about justice, fairness, or revenge, any more than shooting a rabid dog would be. It is simply about minimizing the danger to society. Bringing squishy emotions like compassion or empathy into the equation may make you FEEL like a better person, but ultimately it does society a disservice by taking focus away from the most important issue, which is how to protect society as a whole.

And since I just know that people are going to leap to assumptions and words in my mouth, I want to disambiguate my stance here. I absolutely do not believe in mandatory minimum sentences for juveniles. (And in some of the cases mentioned, it's a tragedy that they got life sentences. In others, the kids acted like monsters and utterly deserved their punishment.) My comment is simply a response to Taled's point of view, which I feel demonstrates a knee-jerk reaction of sympathy for juvenile offenders - but at the expense of a reasoned and logical analysis.
posted by wolfdreams01 at 10:20 AM on June 25, 2012


No. I'm saying a 14 year old doesn't know that hanging with a known thug who is a trouble maker can lead to felony murder that can result in lifetime in prison on a first offense under state law. And this is something SCOTUS, which has very few 14 year olds on it, argued about for, like, hours.

14 year olds also don't tend to have a real good grip on the concept of "lifetime" either.
posted by Cookiebastard at 10:22 AM on June 25, 2012 [13 favorites]


W/r/t the court giving Obama a couple things prior to it slashing and burning ACA:

Heard some analysis on NPR re: possibility the court would save ACA because Roberts wants his court to take steps to the right vis-a-vis other things the right hates, like affirmative action.

I may be imagining things, but I seem to recall members of SCOTUS feeling real bad over the anger over Bush v. Gore. So who the fuck knows. Scalia's opinions, from what I recall of them, seem to be beautifully done rationalizations of bullshit. Given that they're people too, I can see the impulse to say, 'we should hold off on X if we are going to Y,' even if this isn't a conscious impulse.
posted by IwishIwasFordMaddoxFord at 10:24 AM on June 25, 2012


If people can't abide by those rules - regardless of the reason - then they need to be removed from society.

This is an argument for summary execution. Anything less is an appeal to compassion or empathy.
posted by muddgirl at 10:24 AM on June 25, 2012 [9 favorites]


And my question for you is: why should we care about the kid in question? Why is he entitled to more compassion that the person he murders?

Because while getting your bloodlust on may make you feel like a big man it doesn't get to the root of the problem. Why the fuck do people kill each other? To cast aside the reasoning as "Meh some people are just evil. Lock them up and throw away the key" is disingenuous and also even more disrespectful to the victims of people who keep dying to homicide.

By helping others we help ourselves as a society. But fuck that, why the fuck should we show any compassion to a god damn murderer, right folks?
posted by Talez at 10:25 AM on June 25, 2012 [10 favorites]


Why is he entitled to more compassion that the person he murders?

Why are you defining "compassion" as "not required by the legislature to be sentenced to prison until he dies, regardless of circumstances"?
posted by rtha at 10:27 AM on June 25, 2012 [8 favorites]


The court today also ruled against the Montana Supreme Court ruling that contravened Citizens United 5-4, with the division as you'd expect. Justice Scalia wrote the majority decision, which begins "Who the fuck do you little pissants think you are to tell us we were wrong?"

I for one am pleased with this decision. Money is unequivocally speech! It's the law of the land! Which, by my reading, means that I should be able to claim First Amendment protections when I find Mr. Scalia and mercilessly beat him with a sock full of nickels.
posted by Mayor West at 10:28 AM on June 25, 2012 [9 favorites]


Why is he entitled to more compassion that the person he murders?

No one asserted that he was. That people have some compassion for a kid who does a terrible thing while also having compassion for the people he did that terrible thing to is not inconsistent or backwards, it's just compassion. The world is a hard and sometimes terrible place, and it's a common if not universal belief that mitigating that is more doable if you're trying to figure out how to make it better for everybody than if you're setting aside some subset of humanity as despicable and unworthy of compassion.
posted by cortex at 10:28 AM on June 25, 2012 [9 favorites]


Someday I would really like to see a thread full of lawyers discussing systems administration.

Have a law firm as a client, sometime.
posted by lodurr at 10:28 AM on June 25, 2012 [3 favorites]


I think we're starting to get far afield here. I don't disagree that there are some individuals, maybe even some juveniles, who are so dangerous that they need to be separated from society for life. All this decision says is that we shouldn't apply it to all cases. That sounds logical to me.
posted by jonmc at 10:29 AM on June 25, 2012 [8 favorites]


Because while getting your bloodlust on may make you feel like a big man it doesn't get to the root of the problem. Why the fuck do people kill each other? To cast aside the reasoning as "Meh some people are just evil. Lock them up and throw away the key" is disingenuous and also even more disrespectful to the victims of people who keep dying to homicide.

By helping others we help ourselves as a society. But fuck that, why the fuck should we show any compassion to a god damn murderer, right folks?


Just because I don't advocate caring and compassion for kids who murder people doesn't mean I have "bloodlust." I just look at the bigger picture, which is society. And there's no need to swear. It's clear you're worked up about this, and this exactly demonstrates the flaw in your argument. You've made no logical argument as to why we should care - instead, you made passionate appeals to emotion. You let your emotions take precedence over logic, and this mentality should not be part of the legal system.
posted by wolfdreams01 at 10:31 AM on June 25, 2012


And my question for you is: why should we care about the kid in question? Why is he entitled to more compassion that the person he murders?

Because compassion is not a finite, or even rivalrous good. Because we can do nothing, literally nothing, for the dead, but we may yet help the living. Because we need to look too far outside of our own circles to find people who have turned their lives around after a second chance. Because capital punishment devalues human life. Because it costs less, in the majority of cases, to rehabilitate someone than it does to keep them locked up. Because you and I, here on the internet, have no idea of what that kid was facing when he agreed to participate in a robbery, but the people who have some idea (i.e., the judge and jury having been presented the facts, or the parole board) may believe that this particular person is not a lost cause.
posted by gauche at 10:32 AM on June 25, 2012 [28 favorites]


The court today also ruled against the Montana Supreme Court ruling that contravened Citizens United 5-4, with the division as you'd expect. Justice Scalia wrote the majority decision, which begins "Who the fuck do you little pissants think you are to tell us we were wrong?"

In New Decision, The Supreme Court Still Loves Citizens United: A Montana case gave the justices a chance to reconsider their decision allowing unlimited corporate spending in elections. The court's conservatives weren't interested.
posted by homunculus at 10:33 AM on June 25, 2012


Why are you defining "compassion" as "not required by the legislature to be sentenced to prison until he dies, regardless of circumstances"?
You utterly failed to read the last paragraph of my comment, which specifically addressed this. Allow me to repost it here for your edification:

And since I just know that people are going to leap to assumptions and words in my mouth, I want to disambiguate my stance here. I absolutely do not believe in mandatory minimum sentences for juveniles. (And in some of the cases mentioned, it's a tragedy that they got life sentences. In others, the kids acted like monsters and utterly deserved their punishment.) My comment is simply a response to Taled's point of view, which I feel demonstrates a knee-jerk reaction of sympathy for juvenile offenders - but at the expense of a reasoned and logical analysis.


Seriously rtha. I specifically predicted people would misinterpret my comment, put words in my mouth to assume I was defending mandatory minimum sentences, put an entire paragraph in there just to make sure that didn't happen - and you did it anyway. Good reading comprehension there.
posted by wolfdreams01 at 10:36 AM on June 25, 2012 [1 favorite]


You've made no logical argument as to why we should care - instead, you made passionate appeals to emotion. You let your emotions take precedence over logic, and this mentality should not be part of the legal system.

But there's no logical argument why we should execute or even imprison people for doing wrong to each other besides emotion (in this case some notion of retribution/justice). Nature has no court saying the lion should be executed for killing the gazelle to survive.
posted by Talez at 10:37 AM on June 25, 2012 [2 favorites]


Why is he entitled to more compassion that the person he murders?

I haven't seen an instance here where anyone does. Retaining compassion for an underaged person accused of murder does not in any way imply lessened compassion for the people who were killed.
posted by lodurr at 10:37 AM on June 25, 2012


Compassion isn't quantifiable. It isn't gold or spices or sand. Just because I have compassion for underage criminals doesn't mean I don't have compassion for murder victims or their families. To imply that I, or that society, has to pick where we "spend" our compassion is illogical and silly.

I'm an absolutist on this topic: If you can't buy scratch off lotto tickets when you are 17 years, 364 days old, then you shouldn't be tried as an adult if you commit a crime on that same day. The responsibilities and punishments of adulthood should not come before the privileges.

And yes, I am familiar with the horrific, heartbreaking case of James Bulger. It's not that I don't think children can be evil- obviously, they can. It's that I think the law needs to be consistent, logical, and clear. I also am unwilling to say that children are incapable of rehabilitation.

Mandatory sentencing was supposed to make things more just, supposed to remove judicial prejudices from impacting punishments. The problem with this rationale is that we are still operating under a penalty-based model. I don't think our criminal justice system should be about vengeance. It should be about protection, and the method with the best track record is rehabilitation. I understand that to ask the U.S. system to function like a rehab is laughable, but I don't think it's too much to ask that it be an option for children.
posted by Athene at 10:38 AM on June 25, 2012 [5 favorites]


Revenge is not a form of compassion.
posted by Holy Zarquon's Singing Fish at 10:42 AM on June 25, 2012 [5 favorites]


With its latest Citizens United-related decision, this court struck down a campaign finance system that has been in place in the state of Montana in one form or another for literally 100 years.

That's in no sense of the term an example of "conservative" jurisprudence; "Conservative" jurisprudence, you betcha.
posted by saulgoodman at 10:42 AM on June 25, 2012 [10 favorites]


Seriously rtha. I specifically predicted people would misinterpret my comment, put words in my mouth to assume I was defending mandatory minimum sentences, put an entire paragraph in there just to make sure that didn't happen - and you did it anyway. Good reading comprehension there.

No, I read it. But then you keep making categorical statements about why kids convicted of murder shouldn't get any compassion shown to them. No one needs to put words in your mouth when you say things like

Just because I don't advocate caring and compassion for kids who murder people


So maybe the comprehension failure is not happening (only) at the reading end.
posted by rtha at 10:44 AM on June 25, 2012 [1 favorite]


Why are we arguing about whether or not kids should be punished like adults instead of whether or not judges should have the power to exercise judgment in sentencing? This is not a case about the right and wrong of any particular form of punishment or sentencing; it concerns nothing more or less than the balance of power in one part of our legal system.
posted by saulgoodman at 10:44 AM on June 25, 2012 [11 favorites]


Sadly, 'balance of power' these days seems to be code for "someone't trying to make my side lose."
posted by lodurr at 10:46 AM on June 25, 2012


I just look at the bigger picture, which is society.

Stuff and nonsense. The bigger picture is that tough-on-crime doesn't actually work to reduce crime.

I'm not the one who dropped the "bloodlust" comment, but speaking as someone who's looked a bit at the social science around criminal policy, I can say that it becomes harder and harder to hear arguments such as the ones you're advancing, wolfdreams01, without hearing them as a intellectual cover for a certain bloodlust that runs through U.S. society. It doesn't have to be your personal bloodlust.
posted by gauche at 10:47 AM on June 25, 2012 [9 favorites]


This judgment should wreak havoc in Florida. I'm not saying it will, but it should. They try kids as young as 11 and 13 down here as "adults" under mandatory sentencing laws. Maybe the fact that they used the term, "under the age of eighteen," in the brief will clear that up.
posted by halfbuckaroo at 10:52 AM on June 25, 2012


Someday I would really like to see a thread full of lawyers discussing systems administration.

I can't speak for systems admin stuff, but progamming and lawyering can be awfully similar at times. With the one major difference being that one of them uses premises A, B and C, which are generally consistent in their methodology, and the other is generally dictated by old white men. is where A, B and C are generally mutually exclusive and you have to argue that this particular instance of X is more B-ish than it is C-ish.
posted by Blue_Villain at 10:52 AM on June 25, 2012 [3 favorites]



Ultimately, I think "society" is simply a set of compromises that allow people to get together without chaotic violence. If people can't abide by those rules - regardless of the reason - then they need to be removed from society. This isn't about justice, fairness, or revenge, any more than shooting a rabid dog would be. It is simply about minimizing the danger to society. Bringing squishy emotions like compassion or empathy into the equation may make you FEEL like a better person, but ultimately it does society a disservice by taking focus away from the most important issue, which is how to protect society as a whole.
I think it's telling that the language here is dehumanizing toward the accused. There are two "chaotic" responses that a society must resist in order to maintain the social contract: 1) crime itself, including the most heinous of crimes, murder; 2) the instinct to treat criminals as subhuman, as non-persons who have forever surrendered their humanity and their capacity to feel by having committed a crime. This is why criminal justice (in western societies, anyway) deals in punitive measures based on precedent, and when the criminal has served his or her time, the crime is repaid. We do not want to claim to treat the ailments of the soul, for this would force us to consider the humanity of the killer, and we might realize that all that separates a "normal" man from a murderer is a thick psychic armor. You can see this dialogue taking place in discussions about capital punishment in the United States. If a murderer is forever condemned (in the eyes of God/society), why not simply put all of them before a firing squad? To do otherwise would be to submit to our "feelings".
posted by deathpanels at 10:56 AM on June 25, 2012 [1 favorite]


This comment I can completely agree with. There's no question that rehabilitation is far more effective than retribution. I'm a big fan of "mandatory therapy for criminal offenders" for similar reasons - not because I give a crap about the criminals themselves, but simply because empirical evidence shows that this approach works. What bothers me is when people get so caught up in the "love and brotherhood for all mankind" nonsense that they think rehabilitation is always the best choice . That's the only point I'm trying to defend - that while it's best to rehabilitate whenever possible, sometimes people are just not fixable, and if a person's sense of compassion prevents them from seeing that, then they're irrational people whose opinions should have no place in the legal system. I think people are trying to misrepresent and exaggerate my views so they have a straw tiger to rail against.
posted by wolfdreams01 at 10:57 AM on June 25, 2012


sometimes people are just not fixable

And this is where it all comes back to.

You see some people as just not fixable. I see a society that hasn't tried hard enough.
posted by Talez at 11:01 AM on June 25, 2012 [6 favorites]


My comment is simply a response to Taled's point of view, which I feel demonstrates a knee-jerk reaction of sympathy for juvenile offenders - but at the expense of a reasoned and logical analysis.

For what it's worth, you too have failed to execute a reasoned and logical analysis, in this case by virtue of appeal to intuition instead of appeal to emotion. If this rhetorical tack doesn't have a name yet, I'm going to go ahead and call it the Hard Truth Fallacy -- that because something is uncomfortable, it's right. Without coming down on one side or the other, because I don't think I have enough information to do so, here are some issues with your "argument":

1. Society is too complex of a phenomenon to blindly assert that merely removing convicted criminals from the society in question is going to have a measurable effect on general safety and well-being, as compared to alternatives such as rehabilitation. Without actual data, what are you basing your conclusion on? I'm baffled that you think you're being any more rational than your interlocutors.

2. Your definition of "removing" needs unpacking -- first, if you're thinking of imprisonment, then imprisonment is only an approximation of "removal," which almost certainly has measurable effects; second, if you're thinking of firing people out of a cannon, or whatever other method of "removal" that actually meets the definition of the word, then you're not considering the probably non-negligible costs of that operation.

3. You're failing to recognize three things about the invocation of abstract values, especially abstract values that may run contrary to your attempt to optimize a particular variable here (which is what, by the way?) in making decisions about this kind of thing: (a), that your thinking is almost certainly guided by similar values that you just haven't examined yet (which may or may not include "compassion" -- I'm not convinced you've thought about this enough to really unpack whether or not that particular value is figuring into your beliefs here); (b), that the difficulty of measuring the effect of the maintenance of those values on real-world outcomes does not imply that effect doesn't exist; and (c), that society is not utilitarian, that it inevitably conducts itself according to such values, and that you probably wouldn't like it if it didn't.

Again, I'm not taking a side here. All I'm saying is that you should look into reinforcing all that glass that your house is made from.
posted by invitapriore at 11:03 AM on June 25, 2012 [5 favorites]


It's not just that children don't have their mental faculties/impulse control problems all sorted out. Another important distinction in why people under the age of majority are subject to what is essentially mercy is the lack of legal rights that a minor has compared to an adult- you are tied and reliant on care takers, who may make all sorts of arbitrary choices for you, certain municipalities/areas have age discriminant laws for you, like curfews or mandatory school attendance with consequences including juvenile detention for truancy, you don't have the franchise and you're not in a position to hold down self supporting employment.

You are so much into the status of property, even after gaining access to reproductive capacity, your access to contraception may be subject to parental fiat (again, region allowing), up to blocking you from aborting and forcing you to carry a pregnancy to term. The adults in charge of you can even beat you, within certain limitations, manage your assets, control your housing options and the use of your time, including forcing you into labour in the household without pay (childcare being a popular choice, though we have a whole language of obedience and 'earning' and learning responsibilities). So even the most rational child-under-law is not functioning under the same situation as an adult.
posted by Phalene at 11:03 AM on June 25, 2012


stormpooper: "I just feel that sometimes yes, we should put the responsibility on a 14 year old. You mean to tell me a 14 year old doesn't understand the difference between hanging with a known thug who is a trouble maker and staying away from known trouble making thug? You see that "friend" of yours robbing, killing, selling drugs, whatever, something doesn't click "hmmm maybe this person is holding me down, back, is a jerk?" Maybe we need to start having 14 year olds stop acting like punks and start thinking?"

I can't believe this really needs to be said but: not every 14-year-old kid has options. Not every 14-year-old kid had a good childhood, or parents that cared enough to teach them. Some 14-year-old kids hang out with known thugs because those are the only adults who have ever shown them any positive attention. Some 14-year-old kids want desperately to be cool so that they're liked, and have learned from TV and movies that "bad = cool". Some 14-year-old kids can't see any other options for themselves, because the institutions in their lives actively work against their interests for daring to be born into a certain "type" of family. Most 14-year-old kids can't conceive of their future beyond their immediate peer-group.

We have compassion for 14-year-old kids - even ones who colossally fuck up - because in a lot of these situations, society has failed them somehow. They don't know that the thug is bad for them, because maybe the thug was nicer to them than the police ever has been. They don't know that drugs aren't good for them, because that's the only way the adults in their lives have shown them how to cope with their problems. They see friends of theirs robbing stores, and think that that is literally the only way to survive...and maybe sometimes, it is. 14-year-old kids might know that murder is wrong, but 14-year-old kids are pliable, persuadable, naive, and desperately want to be loved.

And even if none of the above were true, even if they've grown up in a fairy-tale childhood, even if they are privileged as possible: they're 14. 14-year-old kids are dumb. 14-year-old kids think that Justin Bieber is the best musician ever. I spent my teenage years indoors writing stories and avoiding drugs, alcohol, and parties, pretty much the opposite of a punk, and I know I was a pretty dumb fuck when it came to how my actions affect others, the longevity of the decisions I was making even hten. I love my teenage sister with all my heart and I think she's the smartest kid I've ever met and she spends more time reading Orwell and Huxley than your average college student, but I would not trust her to know about about the consequences of lifetime sentencing, of hanging out with the wrong people, of one action completely derailing your life.That's what the adults are for: to teach 14-year-old kids, who are kids, and who don't understand how the world works no matter how amnesic you may be about who you were at the age of 14.

A lot of adults have failed in a lot of ways for that 14-year-old to be where he is. I don't mind sparing a little bit of compassion.
posted by Phire at 11:07 AM on June 25, 2012 [26 favorites]


Bringing squishy emotions like compassion or empathy into the equation may make you FEEL like a better person, but ultimately it does society a disservice by taking focus away from the most important issue, which is how to protect society as a whole.

Compassion and empathy are an absolutely critical, necessary element of a functioning and healthy society.

The ignorance you are displaying is far more dangerous to society than compassion and empathy.
posted by fleacircus at 11:18 AM on June 25, 2012 [9 favorites]


Talez: "sometimes people are just not fixable

And this is where it all comes back to.

You see some people as just not fixable. I see a society that hasn't tried hard enough.
"

And I see it as irrelevant. We can't legislate the distinction between "fixable" and "unfixable" criminals, even if the latter category exists. We can barely manage to legislate a quasi-fair judicial system at all.

One-size-fits-all categories, with no leniency, makes for the exact opposite of individual justice.
posted by IAmBroom at 11:22 AM on June 25, 2012


As a part of this conversation about punishment, compassion, and somewhat tangentially the "rights" of victims in relation to "criminals", I think it can be important that we remember that a criminal is being punished for a crime against the State, not one against the individual victim. For better or for worse, victims and their famies shouldn't expect closure, justice or other such concepts from a criminal proceeding. They weren't designed to provide such things to injured individuals.
posted by atomicstone at 11:23 AM on June 25, 2012 [4 favorites]


cribcage: "Someday I would really like to see a thread full of lawyers discussing systems administration."

When decisions by systems administration affect basic human rights, you see exactly that. Check out threads involving internet censorship, and you'll get your wish.
posted by IAmBroom at 11:25 AM on June 25, 2012 [1 favorite]


I became convinced a long time ago that we're just never going to make crime & punishment work in the US.

Why? Because in the US there are basically 3 theories of what a criminal justice regime should accomplish:
  1. Protect society
  2. Punish wrongdoing
  3. Cure crime
You can bascially only do two of those at any given time. You can protect society and punish wrongdoing by just keeping everyone in jail (fail on [3]); you can try to cure crime through rehabilitation and protect society if your rehabilitation regime is effective at rehabilitation ans assessing continued risk, but that means a not satisfying a lot of people's ideas about justice (fail on [2]); etc. You just always end up with a situation where some powerful constituency doesn't like what you've done.

Add to this the fact that we've become so reliant on prison that we really can't reform the system, and we're pretty fucked. (Seriously, how many more people do we have in prison, per capita, than China? And what exactly would happen, given the fact that we've largely been alternately warehousing and exploiting most of these people, if we started letting them out?)
posted by lodurr at 11:26 AM on June 25, 2012 [1 favorite]


"Someday I would really like to see a thread full of lawyers discussing systems administration."

Of course, the main difference between the two groups is that lawyers are often wrong.
posted by Celsius1414 at 11:27 AM on June 25, 2012 [3 favorites]


Bringing squishy emotions like compassion or empathy into the equation may make you FEEL like a better person, but ultimately it does society a disservice by taking focus away from the most important issue, which is how to protect society as a whole.

And a focus on logic and objectivity in criminal justice is often a smoke-screen for other emotions (anger, fear, chiefly).

Objectively, it seems quite clear to me that punishment regimes are barely sustainable in the best of times - in America in the late-20th/early-21st centuries, they're totally unsustainable.

Objectively, it seems quite clear to me that the only really sustainable approach to criminal justice is rehabilitation. We just can't sustain keeping all these people in jail. That's the naked, objective, heartless & dispassionate truth.
posted by lodurr at 11:30 AM on June 25, 2012 [2 favorites]


Compassion and empathy are an absolutely critical, necessary element of a functioning and healthy society.

The ignorance you are displaying is far more dangerous to society than compassion and empathy.


Compassion and empathy are moral traits, not quantifiable ones. Are you implying that it's a good thing to legislate morality?

I'm sure that a lot of homophobic Santorum supporters also think that legislating morality is a great thing. But once we start doing that, it brings up the question of whose morality to legislate, and trust me, that never ends well.
posted by wolfdreams01 at 11:30 AM on June 25, 2012


wolfdreams01: "And my question for you is: why should we care about the kid in question? Why is he entitled to more compassion that the person he murders?"

False dichotomy is false.

Society did not decide to murder the victim. Society (via the court system and legislative constructs) is only deciding how to handle the guilty parties.

Stop using false, emotional arguments, and you will stand a better chance of being taken seriously.
posted by IAmBroom at 11:37 AM on June 25, 2012


Compassion and empathy are moral traits, not quantifiable ones. Are you implying that it's a good thing to legislate morality?

I'm sure that a lot of homophobic Santorum supporters also think that legislating morality is a great thing. But once we start doing that, it brings up the question of whose morality to legislate, and trust me, that never ends well.


We've been doing it for thousands of years. Do you think property rights are some sort of natural construct? If a cat finds another cat pissing on the wrong tree it'll try and rip the other cat a new asshole to teach it a lesson. What about basic civil rights? The constitution? They sure as hell aren't laws of nature.

The entirety of law of is society's collective morality being legislated and codified. Justice and retribution are as much emotions and moral traits as compassion and empathy.
posted by Talez at 11:42 AM on June 25, 2012 [2 favorites]


You can see this dialogue taking place in discussions about capital punishment in the United States. If a murderer is forever condemned (in the eyes of God/society), why not simply put all of them before a firing squad?

Well, some of us do believe in capital punishment...

Objectively, it seems quite clear to me that the only really sustainable approach to criminal justice is rehabilitation. We just can't sustain keeping all these people in jail. That's the naked, objective, heartless & dispassionate truth.

See above, if you're talking really naked, objective, heartless, and dispassionate truths. If it's not about morality but simply practicality, it's much simpler to simply kill an offender than spend time and effort trying to rehabilitate people, some of whom can never be rehabilitated.
posted by corb at 11:42 AM on June 25, 2012


What bothers me is when people get so caught up in the "love and brotherhood for all mankind" nonsense that they think rehabilitation is always the best choice.

Honest question: where in this thread, prior to your first comment, did you see people taking this position?

I ask because you seem to think that people are strawmanning you but as I re-read the thread it kind of seems to me as though you have advanced a counterargument to a position that was never introduced. It seems, to me, like a bunch of people were talking about the relative merits of the felony murder rule and of mandatory minimum sentencing -- and indeed that the in-thread trend is in agreement, broadly speaking, with the position that I think you articulate -- but you came in with a disagreement about the allocation of compassion which could only be relevant if someone's sole reason for opposing mandatory minimum sentences was that they wanted to be nice to underaged murderers.

I don't see that happening. I see people talking about how kids brains are different than adults, about how the law treats kids different in a lot of other ways, about how compassion is sometimes appropriate under a rudimentary definition of justice. Defined, at least when I was taught jurisprudence, as "treating alike things alike, and different things differently."

The definition I advanced above is one which poses some difficulty for your repeated position that emotions have no place in the application of justice which is the law. Our compassion and our empathy are two highly attuned and sophisticated tools by which we can understand when two things are the same and when they are different. Pure logic is insufficient in many cases. We rely on the good sense of twelve jurypersons because we believe, as a society, that their ability to find facts -- supported by their intuition, their sense of empathy and honesty and compassion and the whole host of messy and illogical ways that people parse the world -- is indeed one of the best ways to get at the truth of a situation. It is not always people's logic that cues them in to when a witness is lying, for instance. In many cases, it is their intuition and empathy.

Also, I want to close with another honest question. You've written:

You let your emotions take precedence over logic, and this mentality should not be part of the legal system.

I want you to explain the should in that sentence by reference to logic alone.
posted by gauche at 11:44 AM on June 25, 2012 [2 favorites]


Well, some of us do believe in capital punishment...

But do you believe in absolute, mandatory capital punishment without any reference to the specific details of the evidence or case against the accused? 'Cause that's what seems to be implied here by these objections...
posted by saulgoodman at 11:45 AM on June 25, 2012 [1 favorite]


Oh, no, not at all! I don't believe in mandatory sentencing period.

I think I was lazy and just favorited the stuff I agreed with, and only talked to counter the points I disagreed with. But I do think this is a good step forward. Mandatory minimum sentencing doesn't allow judges the flexibility they need to deal with individual cases. If a judge is going too light on sentencing, have him removed, but don't try to force him to rule against his better judgment.
posted by corb at 11:52 AM on June 25, 2012 [1 favorite]


gauche: I want you to explain the should in that sentence by reference to logic alone.

Excellent request. As I said: smokescreen for other emotions (e.g., fear, hate....).
posted by lodurr at 11:56 AM on June 25, 2012 [1 favorite]


What if they are a repeat offender by the time they become adults? Then manditory is ok? So a 14 year old can commit crime after crime until after 18 and continue to commit crimes?

And for me, the why a kid messes up has been in place for a while. DCFS, juvy system, etc. I just don't see anything working a of yet---whether a manditory hard knox punishment or plain ol juvy and parole.

Sorry when it comes to crime, my views and opinions are more hard line than others. Medical marijuana, right to choose---goes the other way. Again, we all have opinions. And no life without parole won't bring a dead person back but if it were my kid as a victim, I would sleep easier knowing someone got the death penalty. Again, when it comes to crime, I just have hard views.
posted by stormpooper at 12:01 PM on June 25, 2012


Thanks for the clarification, corb. Gotcha.
posted by saulgoodman at 12:01 PM on June 25, 2012


(Before anyone says anything, I know this isn't the topic of the FPP, but it does seem to be what people are talking about.)

How come progressive people so often write rapists off, only to turn around and insist murderers deserve more chances? And not just in the form of being treated properly as they serve their sentences, but of actually being sentenced to less time? Am I wrong in this perception of things? Because I find the whole thing sort of off. I don't see how deliberate adult killers are any nicer, less sadistic (sometimes), less unjust, or less full of a sense that it's fine for them to use other people's bodies the way they want to. And I freely admit to being afraid of people who are willing to kill others, especially for personal gain or pleasure.

I don't agree with the death penalty, or mandatory life sentences for children (or mandatory sentencing in general). But I don't think all murderers can be rehabilitated, or that people are spending too much time in jail for killing. Do you really have to think those things to be compassionate?

We just can't sustain keeping all these people in jail.

But what does that have to do with whether it's just for people to be in jail for a long time (or forever) for murder in particular? Aren't there like a billion junkies and non-violent criminals in your system to work through first?

You see some people as just not fixable. I see a society that hasn't tried hard enough.

Are you saying there's nobody who can't be stopped from violent crime without being locked up?
posted by two or three cars parked under the stars at 12:04 PM on June 25, 2012 [2 favorites]


How come progressive people so often write rapists off, only to turn around and insist murderers deserve more chances? And not just in the form of being treated properly as they serve their sentences, but of actually being sentenced to less time? Am I wrong in this perception of things?

I think capital punishment should be an option for murder /and/ rape. Also child molestation. But I do see the thing you're talking about.
posted by corb at 12:13 PM on June 25, 2012


Are you saying there's nobody who can't be stopped from violent crime without being locked up?

Yes I'm saying that. Just because we haven't found the way to treat it doesn't mean it can't be eventually done. Society needs the collective will to move past retribution and look into "why" and eventually the "how can we prevent it from happening in the first place".

Perform the research, recognize the risk factors to find people at-risk for criminal behaviour, ensure that people who need treatment get treatment, or that they get help for their shitty social situations.

If we find and divert people away from the causes that lead them to lifetimes of crime we can start to solve this at its core rather than waiting for more people to die/get raped/assaulted and sending the "bad, evil not-people" responsible through the retributive industrial prison meat grinder.
posted by Talez at 12:14 PM on June 25, 2012


Honest question: where in this thread, prior to your first comment, did you see people taking this position?

I ask because you seem to think that people are strawmanning you but as I re-read the thread it kind of seems to me as though you have advanced a counterargument to a position that was never introduced.

Honest answer: I was referring to the comment that Talez made, which I quoted in my original question. That is the ONLY comment I was referring to, hence the reason I referenced it (honestly, I think that's pretty self-evident). If people thought I was arguing with something THEY said, that's a comprehension error on their part - I was disagreeing solely with Talez's initial comment (hence the reason I specifically referenced it, which seems like a totally reasonable way to disambiguate things). The fact that they jumped in to disagree with me logically suggests that they support HIS position, since that's really the only thing I was arguing with.

but you came in with a disagreement about the allocation of compassion which could only be relevant if someone's sole reason for opposing mandatory minimum sentences was that they wanted to be nice to underaged murderers.

Not at all. I wasn't referring to the debate as a whole but commenting solely on Talez's comment, which (to me) seemed overly emotional and soft-hearted towards criminals. In fact, as I've stated multiple times already, I do not support mandatory minimum sentences for juvenile criminals. People who think I am making a case for mandatory minimum sentences clearly haven't read all my comments on this thread, which is disheartening considering that I've made multiple explicit references to disambiguate my stance.

In short, my ONLY premise in the original comment (and the only case that I am defending, regardless of how people try to change my argument) is that Talez and the people who defend him are extremely naive to think that rehabilitation is a cure-all. Talez even stated the fundamental difference quite clearly himself:

You see some people as just not fixable. I see a society that hasn't tried hard enough.

Talez seems to think we can fix everybody. I think we should fix whom we can and lock away all the rest. Any assumption that other people make beyond that is a misreading of my statements.
posted by wolfdreams01 at 12:19 PM on June 25, 2012


There shouldn't be mandatory sentencing of any sort. There are far too many variables and far too vague of terms to treat all offenders alike. That really should be a basic human right.

The part about a death during a felony is absurd and completely unfair. It also has zero deterrent because people don't think about that sort of thing. There has been cases of people committing a felony. They try to evade the police. A car chase results. The cop crashes his car into a civilian who dies. Now that criminal will be facing life in prison as a murderer when he did not kill any one. Probably would never kill anyone. And certainly can't be rehabilitated not be a murderer. He or she will face life in prison for nothing but what may have been a mere indiscretion.

This is especially true when "felony" can be so broad.Cops can adjust the evidence to push your crime into a felony, use that to threaten you with murder charges unless you confess to the lesser crime - even if you're innocent. Here in Florida trespassing on a construction site is a felony. Which in itself is ridiculous but that is a different argument. You're sleeping at a construction site or otherwise trespassing. The police, owner, or someone else comes along to roust you from your shelter. That person trips, hits his head and dies. Now you are looking at life in prison for merely being at a construction site. I could easily see kids playing around such things.
posted by 2manyusernames at 12:22 PM on June 25, 2012 [1 favorite]


I guarantee you there are people alive today who might have become murderers who didn't and it's not simply due to the threat of being punished really, really harshly that those individuals took a different path.

Isn't that much at least obvious?

Well, if it is, the idea that rehabilitation/intervention should at least be attempted just as seriously as punishment follows naturally. Doesn't mean no one should ever be harshly penalized for serious crimes; just that a single-minded obsession with punishment alone doesn't offer any magic solution to the original problem. So it's ultimately just self-indulgent nonsense to only focus on that one solution.
posted by saulgoodman at 12:22 PM on June 25, 2012 [1 favorite]


I think we should fix whom we can and lock away all the rest.

I have a serious question. How hard do we have to try before we declare someone is "unfixable"?

Please show your work as well for full credit.
posted by Talez at 12:25 PM on June 25, 2012


The reason rehabilitation should be a huge component of incarceration (besides compassion) is that most prisoners will eventually be released. It's in society's best interest to move away from vengence to actually addressing problems.
posted by agregoli at 12:27 PM on June 25, 2012 [3 favorites]


I guarantee you there are people alive today who might have become murderers who didn't and it's not simply due to the threat of being punished really, really harshly that those individuals took a different path.

At the same time, I can guarantee you that there are people alive today who would stand willing, ready, and able to become murderers if it were not for the threat of the extremely harsh sentence that would befall them.
posted by corb at 12:29 PM on June 25, 2012 [1 favorite]


I guarantee you there are people alive today who might have become murderers who didn't and it's not simply due to the threat of being punished really, really harshly that those individuals took a different path.

Isn't that much at least obvious?


No. No it isn't. It seems like a major oversight to allow your intuition to guide your notions of what makes for effective policy.
posted by invitapriore at 12:30 PM on June 25, 2012


How come progressive people so often write rapists off, only to turn around and insist murderers deserve more chances? And not just in the form of being treated properly as they serve their sentences, but of actually being sentenced to less time? Am I wrong in this perception of things?

I don't know the answer to this, in part because you might be painting "progressives" with a broad brush, but I do have a theory. Glad you asked.

Part of the issue is that there's an apparent tension between the appropriate response to violence against women and the principle of innocence until guilt is proven. People who work in sexual violence are trained to believe the victim, because they see, over and over again, how victims are silenced and shamed and discouraged into dropping cases by law enforcement officers, by their friends, by their own families, sometimes by their rapists, when those people don't believe them or state outright or imply that the victim brought it on themselves. Being believed and being supported that it's not your fault are important to victims, and since progressives are the ones doing a lot of the heavy lifting on sexual violence, I think this plays into your perception of progressives "writing rapists off" in a way that progressives don't seem to write off murderers.
posted by gauche at 12:30 PM on June 25, 2012 [1 favorite]


I was going to post this as a FPP but probably belongs here:

The 5-4 ruling here, and the likelihood of a similar ruling in the ObamaCare case, not to mention many more means that one individual decided for the nation which direction to go. This is potentially a problem.

How to solve it? Jonathan Turley, a legal scholar specializing in constitutional law believes that a larger selection of judges is called for. Instead of the current 9 members, a number that came about by happenstance, 19 would result in fairer and less partial rulings.

original longer post

Edited down version at Washington Post
posted by 2manyusernames at 12:32 PM on June 25, 2012


I guarantee you there are people alive today who might have become murderers who didn't and it's not simply due to the threat of being punished really, really harshly that those individuals took a different path.

Where "there are people" could be 2 in 300,000,000, you are almost certainly correct.

The question is, how large a value does "there are people" have to be, before we warp our entire society to provide a deterrant to those people, given strong empirical evidence that severe criminal punishment doesn't really work as a deterrent for a number of people that's a hundred million times larger?
posted by lodurr at 12:47 PM on June 25, 2012 [1 favorite]


two or three cars parked under the stars: "How come progressive people so often write rapists off, only to turn around and insist murderers deserve more chances?"

I'll try to address this question since I think it's an interesting one, though this hasn't really been my personal experience.

Speaking for myself only, my stance towards convicted murderers isn't that they necessarily deserve more chances (in a lot of cases remorseless killers should be kept away from society), but that the circumstances of their crime should be taken into consideration during the sentencing. The criminal justice system largely agrees with me on that, in allowing variances in treatment for pleas of insanity, age-based treatment, differentiating between homicide vs. manslaughter, etc. That's the position that I'm arguing from, when I say that a kid who was an accessory to a felony should maybe get a break in the criminal justice system, and not be subject to mandatory life without parole. I think you and I agree there. That, to me, is what compassion towards the convicted criminal means. It doesn't mean I think Karla Homolka is kittens and rainbows.

On the flip side, I think that maybe sexual violence is often discussed with such vehemence is because there is still an uphill battle to get it taken seriously at all. The far greater frequency with which sexual crimes are committed makes it seem more personally threatening (to me, at least, as a woman), and the flippancy with which sexual violence is often dismissed or else blamed on the victim makes me feel like there is no recourse, which is incredibly frustrating. No one really disagrees that a murder victim is a victim, even if the victim wasn't everyone's favourite person. A lot of people have quibbles about the status of survivors of sexual violence. Furthermore, in this system, the victims themselves have to face all these forces acting against them often in the immediate aftermath of the crime having taken place: the indifference of the authorities, the insults against their person on top of the crime itself, etc. Even in the cases of child molestation, there is still pressure to be silent about it, and to not rock the boat.

This is hugely problematic from the perspective of a criminal justice system that's failing to identify dangerous and violent individuals and attempting to rehabilitate them, but even more so from the perspective of victims and friends-of-victims who see the system as consistently favouring the perpetrator. The perpetrator receives the message that they have done nothing wrong, or that society is willing to let them get away with it, and thus fails to contemplate rehabilitation. This dynamic colours the language with which people will discuss these specific crimes, and perhaps that's what you notice.

I don't think it's fair to say that rapists are "written off" - there are different, for lack of a better term, gradations of sexual assault, just as there are differences in how a particular homicide took place. I say this not to diminish the horror of sexual assault, but rather to point out that the circumstances and the motives of a crime matter, and need to be taken into account whether the crime is murder or rape. Some people should probably be locked away. Others may be rehabilitated.

I don't think that very many true progressives who argue for rehabilitation over revenge would make this one exception for this one branch of crime, and maybe that's optimistic of me. But I do think the disenfranchisement of victims of sexual assault leads to a very different conversation being had about the crime.
posted by Phire at 12:54 PM on June 25, 2012 [6 favorites]


No. No it isn't. It seems like a major oversight to allow your intuition to guide your notions of what makes for effective policy.

And yet, that's literally all the position I'm responding to even offers in the first place--the intuition that only punishment is effective.

And yes, it is obvious unless you don't believe in free will in the first place. In which case, why do we bother with any kind of law?
posted by saulgoodman at 12:57 PM on June 25, 2012 [2 favorites]


I have a serious question. How hard do we have to try before we declare someone is "unfixable"?

That question goes so incredibly far outside the scope of this argument that any attempt to answer it would effectively turn this debate into chatfilter - and you probably already KNOW that, so please don't be disingenuous here.
posted by wolfdreams01 at 1:00 PM on June 25, 2012


If it's not about morality but simply practicality, it's much simpler to simply kill an offender than spend time and effort trying to rehabilitate people, some of whom can never be rehabilitated.

See, this is exactly why proponents of capital punishment, by definition, lack any moral authority to discuss proper punishment for crimes. You are basically saying that the problem with murder is that the murderers didn't file the proper paperwork with the proper administrative offices before killing their victims.

But, as the decision itself points out, you can detain someone for jaywalking, and then ask for their papers. SCOTUS basically instructed Arizona how to get around their decision.

My reading, and I hope I'm right about this, is that Sheriff Joe is going to just start making up reasons to arrest any latino he sees now, but that opens him up to a huge "as applied" challenge under this new ruling, which is really what is needed to finally shut him down.

If this rhetorical tack doesn't have a name yet, I'm going to go ahead and call it the Hard Truth Fallacy -- that because something is uncomfortable, it's right.

I love this. Everything is "simple" if you're ignorant enough.
posted by Navelgazer at 1:00 PM on June 25, 2012 [3 favorites]


I can guarantee you that there are people alive today who would stand willing, ready, and able to become murderers if it were not for the threat of the extremely harsh sentence that would befall them.

I'm curious how you can guarantee it, and can you provide a list?
posted by mrgrimm at 1:04 PM on June 25, 2012 [2 favorites]


That question goes so incredibly far outside the scope of this argument that any attempt to answer it would effectively turn this debate into chatfilter - and you probably already KNOW that, so please don't be disingenuous here.

Awww and here I was thinking you wouldn't see the giant hole in the ground covered in a layer of thin sticks leaves.

Nevertheless you obviously already have a threshold in mind I'd like you to share with us just so we can know your personal level of compassion and empathy.
posted by Talez at 1:08 PM on June 25, 2012


Chatfilter is off-limits in the blue now? That's a new one.
posted by rtha at 1:09 PM on June 25, 2012 [2 favorites]


That question goes so incredibly far outside the scope of this argument...

I do hope you'll be as understanding as you expect us to be, the next time someone arbitrarily defines the scope of the argument on you.
posted by lodurr at 1:10 PM on June 25, 2012 [3 favorites]


Well, it's obvious unless you view humans as hardwired automatons, in which case no one is making a choice to murder anyway and you might as well blame god and no system of punishment or rehabilitation could ever prevent a single murder anyway.
posted by saulgoodman at 1:11 PM on June 25, 2012


I'm curious how you can guarantee it, and can you provide a list?

Come on, of course he can guarantee it. If he knows of anyone for whom that's true, his statement is true. As I noted above, the really interesting question is how many people that's true for, and evidence I'm aware of suggests that it's going to be a really low number.*

--
*And also suggests that a good number of them will be psychopaths.
posted by lodurr at 1:12 PM on June 25, 2012 [1 favorite]


I can guarantee you that there are people alive today who would stand willing, ready, and able to become murderers if it were not for the threat of the extremely harsh sentence that would befall them.

I'm curious how you can guarantee it, and can you provide a list?


Well, I know some personally, for one. Some of them I've had to convince not to kill people by reminding them of the consequences that would befall them, and how those consequences would impact their loved ones. Of course, this is more in the "They Needing Killing" land (rapists, domestic abusers, etc), rather than what most people think of when they thing of murder, but I would argue that it still counts.
posted by corb at 1:12 PM on June 25, 2012


Honest answer: I was referring to the comment that Talez made, which I quoted in my original question.

Yeah, but your response is not relevant to Talez' comment. Your response is the one which brings up "squishy emotions like compassion and empathy" -- the first time those words appear in the thread. Talez is only pointing out that different things are justly to be treated differently. So it reads -- to me, anyway -- as though you're using that comment as a jumping-off point to make a greater argument about the place of compassion and empathy in the application of justice.

I wasn't referring to the debate as a whole but commenting solely on Talez's comment, which (to me) seemed overly emotional and soft-hearted towards criminals.

Possibly because I'm personally in agreement with Talez' comment, it did not seem emotionally or soft-hearted to me. It seemed -- and still seems -- as though it was accurately, if somewhat rhetorically, describing some facts relevant to the issue of mandatory lifetime sentences for children. His next comment seemed pretty coldly logical to me: viz., that sentencing a murderer to death will never bring back a murder victim.

I'd venture that this gap in perception is the source of your minor pile-on, above.

Also, I should like to know your answer to my other question, which is whether you can support, solely by reference to logic, the "should" in the statement you wrote earlier:

You let your emotions take precedence over logic, and this mentality should not be part of the legal system.
posted by gauche at 1:13 PM on June 25, 2012


And yes, it is obvious unless you don't believe in free will in the first place. In which case, why do we bother with any kind of law?

This has nothing to do with free will. The point is, I can outline several plausible means by which the threat of punishment doesn't serve as an effective deterrent -- maybe almost everyone is convinced that they're smart enough to avoid capture, maybe once somebody has gotten to the point that they're capable of murder then there are more pressing incentives that override the fear of punishment, etc. -- and you don't have any evidence to confirm that harsh punishment effective de-incentivizes crime on a large scale beyond your intuition that it does.
posted by invitapriore at 1:13 PM on June 25, 2012 [1 favorite]


There's a world of difference between "I'm going to kill John" and actually doing it.
posted by lodurr at 1:13 PM on June 25, 2012


... my point being that if corb says he knows people he's talked out of killing others by reminding them that they'll go to prison, we have no way of evaluating how true that is, or even if that threat had anything to do with their reasons for not killing. People prefer not to kill other people. It's kind of a basic fact.
posted by lodurr at 1:16 PM on June 25, 2012


There's a world of difference between "I'm going to kill John" and actually doing it.
... my point being that if corb says he knows people he's talked out of killing others by reminding them that they'll go to prison, we have no way of evaluating how true that is, or even if that threat had anything to do with their reasons for not killing. People prefer not to kill other people. It's kind of a basic fact.

Yes and no. But mostly no.

So, there are people in our society who are given license to kill. They are told that they will not be punished for killing, and in fact, they will be praised for it. They are told that the people they will be killing are bad, and they are given training on their method of killing.

And that's really all it takes. For soldiers, for executioners, for a lot of Joe Normal people who are different from everyone else only in terms of being given permission. The preference not to kill is a lot weaker than people want to believe. It's not really something people generally talk about, but it's there.

Now imagine the consequences were low. Say, minimal jail time, without the enormous bar that a felony on your record is to employment and a ton of other things.

Do you really think that we wouldn't have a lot more murders out there? If the penalty for murder became lower than the consequences of allowing the other person to live, it would, I think, become an easy choice for some people.
posted by corb at 1:22 PM on June 25, 2012 [2 favorites]


... my point being that if corb says he knows people he's talked out of killing others by reminding them that they'll go to prison, we have no way of evaluating how true that is, or even if that threat had anything to do with their reasons for not killing. People prefer not to kill other people. It's kind of a basic fact.

And blood is murder to get out of carpet.
posted by Talez at 1:23 PM on June 25, 2012


and you don't have any evidence to confirm that harsh punishment effective de-incentivizes crime on a large scale beyond your intuition that it does.

oh, heh, I must have read you wrong. It's not my intent here to argue the case for punishment as a crime deterrent, necessarily. I'm just pointing out it seems pretty farfetched that the only thing ever standing between a potential killer and murder is fear of punishment, and if you grant that, then it makes sense to invest a lot of energy in approaches other than punishment, since punishment necessarily only closes the barn door after the horse is already running free (or I guess, more on point, lying dead in a ditch).
posted by saulgoodman at 1:26 PM on June 25, 2012 [1 favorite]


People prefer not to kill other people. It's kind of a basic fact.[citation required]

Or, as previously requested: I dispute the theory that this is a basic and indisputable fact, and ask that you expound on the reasoning which led you to come to this conclusion so that we may take on a civil discourse regarding the subject.
posted by Blue_Villain at 1:29 PM on June 25, 2012 [1 favorite]


Yes and no. But mostly no

No, mostly "yes." Most of those people who are given license to kill are really messed up by it when they actually kill people. It's been well known for many years that soldiers typically avoid killing, sometimes actively so. (That may not be the case any longer, and may be a partial explanation for why people seem to be getting disproportionately fucked-up by their war experiences these days: we've conditioned them to kill more readily. And it's fucking them up.)

The preference to kill is extremely weak. Soldiers in battle will fire high or refrain from aiming.
posted by lodurr at 1:29 PM on June 25, 2012 [2 favorites]


Soldiers in battle will fire high

Interesting tidbit, most civilians will actually and unintentionally fire low. Which, oddly enough, sometimes induces a ricochet off the ground, which often renders ballistics tests inconclusive.
posted by Blue_Villain at 1:35 PM on June 25, 2012


Quick selection, more or less random, from the first few results to the google search on "resistance to killing":

""Psychological Effects of Combat"

“Psychological Effects of Combat”
The Price of Overcoming the Resistance to Killing


The Psychology of Killing and the Origins of War

Previously on MeFi:

Hope on the Battlefield by Lt. Col. Dave Grossman. An article on our "intense resistance to killing other people. A resistance so strong that, in many circumstances, soldiers on the battlefield will die before they can overcome it."


Also, BlueVillain, don't take it with that that level of precision -- "high" is from S. L. A. Marshall, and I don't know if he actually meant "High" or just assumed that. he just knew there were a lot more rounds fired than there should have been casualties. (I'm aware that Marshall's work has been challenged, but the last time I checked the substance of the critique boiled down to "it's not quite as bad as he said.")
posted by lodurr at 1:43 PM on June 25, 2012 [1 favorite]


Awww and here I was thinking you wouldn't see the giant hole in the ground covered in a layer of thin sticks leaves.

Nevertheless you obviously already have a threshold in mind I'd like you to share with us just so we can know your personal level of compassion and empathy.


Talez, this debate isn't about my empathy and compassion. It's about whether empathy and compassion should be a factor in legislation or the judiciary. My general philosophy is that legislating any type of moral stance - whether it is the hatred and intolerance of people who oppose gay marriage, or the compassion and empathy that you claim to advocate - is undesirable because it imposes one person's morality on somebody else. Basically I don't believe that the focus of laws should be on morality - I think that the focus should be on ways to protect society from the malice of human predators that dwell within it. The only way expressing my personal morality would affect this debate would be to potentially give you ammunition for ad hominem attacks against me, so why would I possibly let myself get drawn into that? It would just be a very stupid and counterproductive move on my part. (And ad hominem attacks aren't logical anyway, so that's sort of a cheap tactic on your part.)

Based on the amount of interest you are expressing in my personal morality rather than my argument, I think that this whole argument is getting... well, too personal. I've expressed my viewpoint, and although some people didn't seem to get it at first, I now feel like I've clarified it substantially enough that there's little chance of me being misrepresented anymore, so my goal for this thread has been achieved and I don't really see any perks on my end to continuing this argument. You're more than welcome to keep arguing as long as you want (and I assure you that I'll do you the courtesy of reading what you write) but I don't feel like posting any more on this thread.
posted by wolfdreams01 at 1:55 PM on June 25, 2012 [1 favorite]


Wolfdreams01, it may not be 'about your empathy and compassion', but you're making it about your emotions by conflating the absence of empathy and compassion with objective justice.

First, very few legal scholars throughout history have taken the view that justice should be divorced from empathy. You could probably find some, but they'd be in the minority.

Second, the obsession with objective justice is, in my experience, something that comes mostly from fear and anger.

So I have to ask you this: If you're advocating the removal of empathy and compassion from the processes of justice, shouldn't you also be advocating the removal of fear and anger?

And if you do that, what have you got left to base a morally just punishment on?
posted by lodurr at 2:00 PM on June 25, 2012 [1 favorite]


I actually think there's some value in this idea of removing all emotions from the processes of justice, at least as a thought experiment. Strip it down to the question of "what we want."

Justice is kind of a nonsensical concept when you remove emotion from the equation. Safety is still an operative concept, though. Social order, too. What serves these ends?

Total removal from society could work. But that has a cost. In the emotionless realm I'm inhabiting for the purposes of this thought experiment, it's a material cost. But of course we could earn some of that back through forced labor: take these people deemed dangerous [which we'd of course do through totally objective methods] and force them to make things for the rest of us. (Let's also forget for the moment the resemblance of such a system to either slave labor or "socialism.")

Rehabilitation -- that could also work. Teach the criminals useful skills, impulse control, planning stills, critical thinking, conflict resolution without violence, etc. (Let's also forget for now that we have almost no criminal justice institutions which are equipped to do this.) Just in the realm of objective cost and benefit, this is a no-brainer: if we ever have to let these people back in amongst us again, reason dictates that we should be rehabilitating.

The reality is that we don't rehabilitate and we can't just lock people away forever. So, as I said, we're kind of fucking ourselves.
posted by lodurr at 2:06 PM on June 25, 2012 [1 favorite]


don't take it with that that level of precision

Actually, my guess is that it has more to do with training and weapon type than anything. Soldiers using some sort of rifle have aim (or not aim, as the case may be) with their hips and shoulders as much as anything else. Civilians wielding handguns tend to aim from their elbows and wrists. (Again, trained personnel tend to aim handguns with locked elbows so it's still coming from their shoulders squared and with two hands on the weapon.)

Anyway, I just thought it was an interesting way to differentiate between the two styles... and a helluva lot more docile conversation than the other stuff that's floating about in here.
posted by Blue_Villain at 2:06 PM on June 25, 2012 [1 favorite]


Blue_Villain: I'm trying to do so many things that I momentarily lost track of the fact that that was in this thread.
posted by lodurr at 2:09 PM on June 25, 2012


The only way expressing my personal morality would affect this debate would be to potentially give you ammunition for ad hominem attacks against me, so why would I possibly let myself get drawn into that?

Hey. I take offense to that. Answering the question "how much effort before we could determine someone unfixable" would have potentially given me ammunition against a silly idea that's both dishonest and unworkable.

It's not my fault that calling you on it and asking you to actually pick a point on the imaginary line of "the worth of a human life" makes you look uncaring no matter what.
posted by Talez at 2:12 PM on June 25, 2012


Well, Talez, I definitely disagree with your views on people and what they're like. First of all, I think people are generally (but not universally) capable of changing things about their lives, but I don't believe society can reliably change people, let alone every last criminal person, just for the sake of its own wants, needs and priorities. And that goes for people who've fallen into murder as a side effect of some other thing about the way they're living. What about people who obviously, avowedly, really, really, really love killing? All right, we can probably do a thing or two about that; it seems fewer people would become compulsive killers if fewer people, say, had very traumatic childhoods. But it might never be possible to "fix" people who have already started down that road. (Certainly people have thought it was before, only to find they'd been horribly mistaken.)

gauche and Phire, thanks for your responses. The thing is, I can more than understand why people feel very strongly about rape, take it personally, believe that it's not taken seriously enough, pretty much just hate rapists, and hope that their vehemence might help to create some kind of justice. I guess what I don't understand is why they don't assume people might feel the same way about murder instead of just being compassionless or bloodthirsty. (Or at least, no one seems to to me.) I personally don't think murder is really taken as seriously as it should be. It's treated as the stuff of entertainment and jokey remarks (some of which are in these comments) and flippancy of all sorts, when it's a thing of unimaginable horror and grief.
posted by two or three cars parked under the stars at 2:20 PM on June 25, 2012 [2 favorites]


It's about whether empathy and compassion should be a factor in legislation or the judiciary. My general philosophy is that legislating any type of moral stance ... is undesirable because it imposes one person's morality on somebody else.

wolfdreams01, seriously, there are huge gaps in your argument here. You've yet to show that empathy and compassion are the same thing as morality. You've yet to show that law based solely on logic will yield results more just than the results we get from the law as it is now. You've yet to show how, precisely, one could ensure that logic was being followed.

What I'm saying is that you seem to be advocating for something that has never existed and that is deeply unlikely to come into existence, and you have made no case showing how it could be possible, or why it would be superior to, law as it exists now, which includes compassion and empathy. All you've done is re-state your premise that compassion = morality and therefore has no place in law.

With respect, what you have stated is not argument. It is opinion. And, unless I am much mistaken, it is opinion that will prove to be self-referentially incoherent on closer examination, which is, I suspect, why you have persistently refused to examine it when challenged.
posted by gauche at 2:20 PM on June 25, 2012 [1 favorite]


Now imagine the consequences were low. Say, minimal jail time, without the enormous bar that a felony on your record is to employment and a ton of other things.

Do you really think that we wouldn't have a lot more murders out there? If the penalty for murder became lower than the consequences of allowing the other person to live, it would, I think, become an easy choice for some people.


Norway has a maximum sentence of 21 years. Anders Breivik will get 21 years for killing 77 people. Despite the fact that 21 years is the maximum you can get, Norway had an intentional homicide rate of 0.68 per 100,000 people. The United States had 4.8. This rate has historically been way lower too.

Consider the data, and the relative severity of punishment. Are you still confident that the murder rate is being restrained by severe punishment, given the fact that the inverse is in fact true?
posted by Rodrigo Lamaitre at 2:21 PM on June 25, 2012 [3 favorites]


Are you still confident that the murder rate is being restrained by severe punishment, given the fact that the inverse is in fact true?

The U.S. is different because the climate is generally warmer ...

that's all I got.
posted by mrgrimm at 2:34 PM on June 25, 2012


Americans are just genetically more murder-y. It's the only explanation.
posted by rtha at 2:39 PM on June 25, 2012 [1 favorite]


Well, Talez, I definitely disagree with your views on people and what they're like. First of all, I think people are generally (but not universally) capable of changing things about their lives, but I don't believe society can reliably change people, let alone every last criminal person, just for the sake of its own wants, needs and priorities.

I can only hope that at some point we get to a time and place where that is proven categorically false.

And that goes for people who've fallen into murder as a side effect of some other thing about the way they're living. What about people who obviously, avowedly, really, really, really love killing? All right, we can probably do a thing or two about that; it seems fewer people would become compulsive killers if fewer people, say, had very traumatic childhoods. But it might never be possible to "fix" people who have already started down that road. (Certainly people have thought it was before, only to find they'd been horribly mistaken.)

I do think it's possible at some point. That being said idealism still has to deal with practical limitations. Some people aren't going to be "fixable" with the resources, techniques, knowledge and yes, pharmaceuticals we have available today. And yes some people are going to need to be removed from the greater mass of society for the rest of society's safety.

But that doesn't mean we should ever stop trying to help them. It means we should always be trying to improve how we treat and help our lowest and most vulnerable members of society. Just because it seems hopeless doesn't mean we have to resign ourselves to treating people the way that we do.

Simply throwing criminals, dehumanized by the media and our elected members, to the penal system hellholes only to be ravaged has and is just a gross waste of human life. Doing this as a purely reactionary and token "deterrent" gesture is letting down everyone who ends up a victim in the future.
posted by Talez at 2:41 PM on June 25, 2012


The Supremes also struck down most of the Arizona immigration legislation. They left intact the stop-and-ask-for-papers part.

The Christian Science Monitor indeed says that "[t]he decision grants a green light to other states to adopt similar 'show me your papers' provisions," so I can understand why you might believe that to be so.

However, the provision that was left intact is the one that requires police to conduct an immigration status check in certain circumstances. My understanding is that the "documents, please!" provision was struck down. The opinion reads in relevant part:
"Section 3 of S. B. 1070 creates a new state misdemeanor. It forbids the 'willful failure to ... carry an alien registration document.' ... Section 3 is preempted by federal law." [pdf]
posted by justicedawg at 2:43 PM on June 25, 2012


I actually think it's quite strange to see the possibility that society will one day be able to force people to be a particular way, no matter how much they resist, as a good thing. There is no way we would be wielding that power responsibly if we had it today. Seems like we could just work on making prison not torture instead.
posted by two or three cars parked under the stars at 3:09 PM on June 25, 2012 [1 favorite]


Society already forces people to be a particular way under threat of being thrown in prison. We already give pharmaceuticals to people who hear voices in an attempt to dull said voices.
posted by Talez at 3:20 PM on June 25, 2012


Thanks for the clarification, jusicedawg. That's consistent with subsequent coverage I've seen.
posted by saulgoodman at 4:48 PM on June 25, 2012


The preference to kill is extremely weak. Soldiers in battle will fire high or refrain from aiming.

There have been studies on this, but generally only in comparison to current willingness to kill. Soldiers in previous wars were less willing to kill, and in fact did often not shoot at the enemy in the World Wars. However, it began to rise in Vietnam, and has reached a higher level in these wars. There's a lot of dispute as to whether it has to do with widespread societal changes, or the training regimen, or the dehumanization of the enemy. My personal preference has to do with dehumanization - if you see the enemy as someone who deserves to be killed, then you have an easier time doing so. It is very easy to substitute a lot of words for "enemy" here.

Consider the data, and the relative severity of punishment. Are you still confident that the murder rate is being restrained by severe punishment, given the fact that the inverse is in fact true?

I believe that the murder rate is restrained by severe punishment, but at a certain point, the law of diminishing returns is true. Norway does have a lower murder rate, but there's also a homogenous population living in relative comfort, which I believe has more to do with the rate than the time served. Also, for humans it is very difficult to differentiate between "fifteen years and a felony conviction" and "twenty years and a felony conviction." They all translate to "youth taken and never again able to rejoin society."
posted by corb at 5:04 PM on June 25, 2012


Jonathan Turley, a legal scholar specializing in constitutional law believes that a larger selection of judges is called for. Instead of the current 9 members, a number that came about by happenstance, 19 would result in fairer and less partial rulings.

The Limits of Civility: How A Proposal On Reforming The Supreme Court Unleashed A Torrent Of Personal Attacks
posted by homunculus at 6:11 PM on June 25, 2012 [2 favorites]


Supreme Court Decision on Juvenile Life Without Parole Is Weak: In a tepid and narrow ruling, the court threw a chicken bone to the petitioners and about 2,000 others. But it failed to do anything morally important
posted by homunculus at 6:24 PM on June 25, 2012


There's a lot of dispute as to whether it has to do with widespread societal changes, or the training regimen, or the dehumanization of the enemy.

Surely the all-volunteer military plays a big role in this. Vietnam and before would have had a sizeable chunk of people only there because they were drafted. In modern warfare, any US soldier made a conscious decision to join the military. (Unlike some, I don't think this implies anything bad about them, but it does mean they are likely to at least believe they are capable of killing when necessary --- I'm sure some face issues when it comes to the moment anyway).
posted by wildcrdj at 6:25 PM on June 25, 2012 [2 favorites]


I guess what gets my goat about tough-on-crime rhetoric (glad you asked) -- and I don't mean to call out anyone in this thread specifically -- is that it always seems to come from such a reasonable point of view. Crime is awful. We should do whatever it takes -- even if what it takes is unpleasant or kind of punishing -- to prevent or reduce crime from taking place.

But the people who are tough-on-crime don't mean it. When they say "whatever it takes" they don't mean that literally anything is on the table. They mean that cruelty is on the table.

So when you show them the statistics, when you point out that it can be empirically shown that harsh methods don't reduce crime but rehabilitation and forgiveness do, they call it woolly-headed feel-good nonsense. Because they don't actually mean "whatever it takes." They just mean cruelty.

To be sure, there are a lot of conceptions of justice. Retribution is certainly one of those conceptions. But so is restoration, and so is rehabilitation. The "tough-on-crime" rhetoric pretends to ignore the differences between these concepts, and to elide over the idea that justice in an individual case might have to be carefully tailored according to different ideas of what a just result would be. It pretends to be self-evidently logical and sensible, and it is attractive to people, I think, because it uses a lot of rhetoric about realism and about being willing to do whatever it takes.

But if you exclude the things that work to reduce crime from "whatever it takes", then ultimately you're not about reducing crime. You're about a particular form of justice that will lead to more crime than other forms of justice which you've ruled out. Being tough on crime has a lot to do with being "tough" but not to do with "crime."
posted by gauche at 6:30 PM on June 25, 2012 [1 favorite]


The Washington Post has a great profile on Bryan Stevenson, the man who argued the Miller case.
posted by likeatoaster at 6:35 PM on June 25, 2012


Worth noting that the links Talez provides do not show that incarceration fails to reduce crime; they show that there are, at some hard-to-define point, diminishing returns. In fact, massive incarceration is quite effective at preventing crime, as the Soviets demonstrated---it's just that the costs are very, very high, perhaps higher than the costs of crime. Liberals lost much of their power in the 70s because of their failure to deal with rising crime rates (although there's serious question about whether any policies could have restrained crime in the face of 1970s demographics), and lessons seem not to have been learned.
posted by ThatFuzzyBastard at 8:08 PM on June 25, 2012


I haven't posted any links?
posted by Talez at 9:01 PM on June 25, 2012


Talez, my apologies---it was guache who posted the links which didn't show what he said they showed.
posted by ThatFuzzyBastard at 9:26 PM on June 25, 2012


Why is he entitled to more compassion that the person he murders?

Because we expect the state to have higher standards than individual criminals. I'm pretty sure you're not arguing that the state should sink to the level of criminals (unless you're from one of the states that frequently do sink to that level).

A state without compassion is a machine.
posted by Twang at 10:34 PM on June 25, 2012 [1 favorite]


I have a very good, logical reason for allotting at least some compassion to criminals, and I'm surprised it's not been made yet. Selfishness, or perhaps better couched in individualism. But while the odds may not be high that you or by extension your kin would be in one of these circumstances that requires mandatory sentencing, none the less, if you were, would you not want to have your actions be judged on the basis of your specific actions, rather than locked up and the key thrown away? Erring on the side of locking up every perceived bad seed with a maximum sentence has the risk, however small, that you could be in that position (or, in the case of juveniles, family or friends.) Opting to give compassion and have each sentence judged on the individual circumstances means overall you might have a better chance of coming out ahead, if you were in such a circumstance.

Oh, there are more, of course, such as improving poverty and racial standing in the country, as minorities are more likely to be unfairly convicted, so to improve equality in society, we need to again, have another means to be more fair to criminals.

And then there is the wrong conviction, that some may have gotten mixed up in something they may not have meant to been, and while not able to prove their innocence, perhaps the circumstances did however lead the judge to believe that being guilty by the means that they were was not an active enough process to give them a harsh sentence. So, while locking up an innocent person is generally bad, at least they may have some way of getting a lessor sentence.

Off the top of my head, these are just a few, which could no doubt be thought out better. The problem I have with not offering compassion to criminals is just simply that it isn't an overwhelming emotional issue, but there are several societal and selfish reasons not to want that.

As to the idea that punishment offers an effective deterrent to murder, I think there are more than enough cases where this really isn't true. Yes, I know anecdotes != data, but I have known a few corrections officers, and they've said essentially the same thing, the inmates they deal with on a daily basis have very poor skills at understanding the consequences of their actions. Time and time they break the same rules and are surprised by the punishment. Maybe not all of them, but a majority of them. I would posit that a majority of murderers either don't think about the punishment (period), don't think they'll get caught, or don't plan on murdering anyone in a concrete sense where they can evaluate what the effect their actions will have.

I stand by the idea that humans find killing revolting, both for the risk of their own life as well as being faced with their own mortality by taking that of another persons. As a social animal, we have an aversion to murdering one another or we wouldn't be able to trust one another enough to rely on them for survival, and society would fall apart. We don't murder the guy who cuts in line at the bank because there is a law against it, we don't do it because it would be detrimental to ourselves as individuals and as a group. Extremes happen to push people over the edge, and that's why murder and mass killings happens. But if murder were so common before we had laws and punishment to dissuade it, then we would have never been able to form a society as advanced enough to codify into law the wrongness of it.

Corb, you said you have personally talked people out of committing murder by pointing out the penalties and consequences of their actions. I would like to posit that if you talked to anyone in this way, they were not really at any serious risk of actually committing murder. If anything, your example proves this - the undoubtedly knew the punishment for murder, and it wasn't on its own enough to stop them. Reminding them only reminded them there were consequences of their actions, giving them time to think more clearly outside of whatever mental state they were in.
posted by [insert clever name here] at 11:26 PM on June 25, 2012


Corb, you said you have personally talked people out of committing murder by pointing out the penalties and consequences of their actions. I would like to posit that if you talked to anyone in this way, they were not really at any serious risk of actually committing murder.

I assure you this is not the case, but recognize that there's no way I can prove it to you.

I also would speculate that no one really believes that if the punishment for murder were reduced from jail time + felony to, say, a large fine, murder wouldn't go up in this country. I think most people believe that the threat of incarceration and of having their entire future ruined does make the opportunity cost too high for most people to commit murder. We're just quibbling about the details.

But those beliefs are one reason too much leniency would in fact be disastrous. Programs that work to allow full rehabilitation of criminals and full integration post jail are in fact counter-productive, because if criminals were able to say, "X years of my life, and then I can come back to society," then I think it highly likely that the cost would no longer seem too high. (I also think the threat of the societal ostracism that comes with a felony conviction for murder is actually more of a deterrent than minimal prison time would be, but that's me. )
posted by corb at 4:43 AM on June 26, 2012


In fact, massive incarceration is quite effective at preventing crime, as the Soviets demonstrated---it's just that the costs are very, very high, perhaps higher than the costs of crime.

Apples to oranges. It is very difficult to compare across the vast cultural, historical, social, and jurisprudential differences between Soviet Russia and the contemporary U.S. Even if what you are saying is true for the Soviets, it has to be shown that it would work here.

I have to question your premise. There are serious problems with the reporting of crime statistics by the Soviet government. It is also necessary to address the issue of what is meant by "crime" in the comparison. Are we including rarely-prosecuted corruption and graft by bureaucrats (including police and judges)? Black market activity? Imprisonment for ideological differences or shifts within the Party?

tl;dr: In Soviet Russia, massive incarceration prevents crime!

Worth noting that the links Talez gauche provides do not show that incarceration fails to reduce crime; they show that there are, at some hard-to-define point, diminishing returns.

Which is not what I said. Nowhere in this thread have I opposed incarceration as such. What I've said is that an excessively punitive attitude toward criminals (which in my experience often extends as far as denying the rights of the accused as well as the convicted) is not as effective at preventing crime as a more rehabilitative approach. My criticism is comparative, not absolute.
posted by gauche at 10:39 AM on June 26, 2012


Guache: Do you have some comparative statistics? That would be interesting to see.

Certainly we have a correlation of a growing incarceration system and a drop in US crime. Which is not causation! But it does require some counter-evidence to show alternate causality. I'm aware of studies showing that states experienced a crime drop seemingly regardless of differing incarceration policies, but there was inarguably a growing trend towards incarceraton and away from rehabilitation throughout the period, as well as a massively ramped-up federal incarceration system.

Honestly, much of the rehabilitative stuff I've seen seems to have some potential for juveniles, but mostly to be a lot of wishful thinking. But I'd love to be proved wrong on that.

As regards the Soviets---you're expanding the definition of crime beyond what's useful. I was demonstrating that a state can prevent behavior it doesn't approve of by locking up those who commit it. Expanding to questions of what should be defined as a crime isn't useful.
posted by ThatFuzzyBastard at 10:57 AM on June 26, 2012


Any discussion of rehabilitation that treats what we do in American prisons as actual "rehabilitation" is not really a discussion of rehabilitation. We can't really have rehabilitation in American prisons because prison is about punishment for enough people that they're just not going to let it happen. Instead we get prisoners doing telemarketing and light-industrial work.

IOW: Maybe rehabilitation works, maybe it doesn't. But we can't know based on data from American incarceration.
posted by lodurr at 11:56 AM on June 26, 2012


That’s Just Nino: Scalia’s Arizona Dissent
posted by homunculus at 1:19 PM on June 26, 2012


The Supreme Court’s collateral damage: A ruling against Obamacare could be a precedent to erase progressive reforms going back to FDR
posted by homunculus at 1:39 PM on June 27, 2012


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