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March 3, 2014 7:43 AM   Subscribe

Freddie Lee Hall, as a child, had been classified as "mentally retarded"; he is illiterate, cannot cook for himself, bathe independently, clean his clothes, and is unable to handle his own finances. Halll was sentenced to death for murdering Karol Hurst, a 21-year-old pregnant woman who was abducted leaving a Leesburg, Fla., grocery store in 1978. His guilt is not at issue; what is at issue, before the Supreme Court this morning, is whether the Florida Supreme Court's definition of mental retardation (having an IQ of 70 or less) was correctly applied to Hall, who has tested at an IQ of 71.

The precedent case here is Atkins v. Virginia,, where the Court held that executions of mentally retarded criminals are "cruel and unusual punishments" prohibited by the Eighth Amendment.

Forty-four people with mental retardation were executed from 1984 to 2001. Since the Supreme Court’s 2002 ruling, several hundred prisoners on death row have filed mental retardation claims, or about 7% of all cases. Twenty-eight percent of those sentences have been reduced as a result of Atkins.
posted by roomthreeseventeen (136 comments total) 3 users marked this as a favorite

 
Sigh. You know, it would be pretty easy to solve these dilemmas by just not executing anyone.
posted by ArbitraryAndCapricious at 7:51 AM on March 3 [78 favorites]


he is illiterate, cannot cook for himself, bathe independently, clean his clothes, and is unable to handle his own finances.

How the fuck is this guy even in jail, let alone on death row?
posted by feckless fecal fear mongering at 7:53 AM on March 3


Because he murdered someone? Where else should he be?
posted by Jacqueline at 7:55 AM on March 3 [9 favorites]


Because this :
Hall and an accomplice, Ruffin, were looking for a car to use in a robbery, when Hall approached Hurst and forced her into their car. Hall drove the car away, with Hurst and Ruffin following in another car. Hurst was driven to a wooded area, beaten, raped, and shot, then the body was dragged further into the woods.
...
Although conflicting evidence existed, at some point in the confrontation between Hall, Ruffin, and Deputy Coburn, Deputy Coburn was disarmed and shot and killed with his own gun. Hall and Ruffin fled the scene.
posted by Pogo_Fuzzybutt at 7:56 AM on March 3 [3 favorites]


In a hospital that can care for him?
posted by Pope Guilty at 7:56 AM on March 3 [5 favorites]


In a facility where he can be kept away from society and cared for. Not prison.
posted by feckless fecal fear mongering at 7:56 AM on March 3 [13 favorites]


I mean seriously, how can someone who is unable to even bathe himself possibly be found culpable of murder?
posted by feckless fecal fear mongering at 7:59 AM on March 3


Can he tell right from wrong?
posted by Dasein at 7:59 AM on March 3


He seems to have pulled off the abduction, beating, rape, and murder of a pregnant woman fairly handily.
posted by codswallop at 8:00 AM on March 3 [27 favorites]


Sigh. You know, it would be pretty easy to solve these dilemmas by just not executing anyone.

It's really the only imaginable solution. I mean, if you proclaim any threshold below which capital punishment becomes "cruel and unusual" then the cases just beyond that threshold will seem arbitrarily excluded. What meaningful standard can the Supreme Court impose here? "Oh, sorry, no and IQ of 71 certainly puts you in the mentally retarded basket." Great, then we have an inmate who tests at 72. What's he? Fully competent? What about 73, 74, 75 etc.? There is just no way to make a sensible, humane and just policy for something as barbaric as capital punishment.
posted by yoink at 8:00 AM on March 3 [27 favorites]


"Mental retardation".

Keep on stayin' classy, America.
posted by metaxa at 8:01 AM on March 3 [2 favorites]


He seems to have pulled off the abduction, beating, rape, and murder of a pregnant woman fairly handily.

And that is evidence of mental fitness?
posted by yoink at 8:02 AM on March 3 [3 favorites]


He seems to have pulled off the abduction, beating, rape, and murder of a pregnant woman fairly handily.

Do you really think someone who is illiterate and cannot even take a bath by himself is truly capable of understanding what he did? Come on. We lock the mentally ill away all the damn time when they have committed crimes; they get remanded for treatment until they're fit to stand triel, a lot of the time. There is not a single good reason why this guy is in prison, let alone on death row.
posted by feckless fecal fear mongering at 8:02 AM on March 3


My brother-in-law who can't bathe himself, put on shoes or speak in complete sentences is still completely capable of beating someone to death. That doesn't make him competent - it's the exact opposite.
posted by Holy Zarquon's Singing Fish at 8:03 AM on March 3 [23 favorites]


Has his level of competency fallen while he's been in prison? I don't get how someone who can't bathe themselves can get into a shoot out with the cops.
posted by mr_roboto at 8:04 AM on March 3 [2 favorites]


As someone who has a lot of exposure to IQ testing in a research setting, the idea of ONE POINT condemning a man is just... I don't even know. There are huge tester effects too. We usually assume that any difference less than five points is meaningless, and that's with college students who are between 1-3.5 SD above the mean. Let me tell you, it's a lot easier to test someone smart. So the difference between 70 and 71 is beyond meaningless. Binet or Wechsler, were they alive today, would just look at these people and say, "What the fuck is wrong with you?"

This is why everyone needs to learn statistics. Better yet, Bayesian statistics. I'm too annoyed to do the calculation right now, but the probability of z-scores of -2.0 and -1.93 being legitimately different must be way less than 1%. Like, is he in the lowest 2.3% of the population or the lowest 2.66% of the population? It's insane.
posted by supercres at 8:04 AM on March 3 [54 favorites]


Has his level of competency fallen while he's been in prison? I don't get how someone who can't bathe themselves can get into a shoot out with the cops.

Nevertheless, those are the facts. This guy should be in a facility geared towards caring for developmentally delayed adults, not on death row.
posted by feckless fecal fear mongering at 8:06 AM on March 3


"Mental retardation".

Keep on stayin' classy, America


To head off this derail, I would suggest reading this piece explaining why this term is still the prevailing term in legal discourse around this issue.
posted by yoink at 8:07 AM on March 3 [19 favorites]


I'm glad the ThinkProgress article noted that Florida is deliberately and almost uniquely rigid in their adherence to the 'IQ of 70' standard, unlike other states which (more fairly) take into account that there's a margin for error in IQ tests.

Unless I missed mention of it though, there's a deeper issue here. The original Supreme Court ruling was set up to protect a vulnerable population from being executed.
"People with mental retardation are at a higher risk of wrongful convictions and death sentences. They may be more likely to falsely confess to a crime because they want to please the authorities that are investigating the crime. They are less able than others to work with their lawyers to help to prepare their defense. Because of the stigma attached to mental retardation, people with this disability often become adept at hiding it, even from their lawyer, not understanding the importance of this information to the outcome of the case."
Florida is attempting to narrow the ruling, so they can execute people with intellectual disabilities scot-free.
posted by zarq at 8:08 AM on March 3 [5 favorites]


This guy should be in a facility geared towards caring for developmentally delayed adults, not on death row.

One with high security where he can't "accidentally" get out and potentially murder someone else?

If the argument is really, "this guy has no mental faculties to understand that he did something wrong" then we have no reason to believe he won't do the same thing again given the opportunity.

I honestly don't care that much about whether he understands what he did. If he is a danger he should be secure well away from the public.
posted by tylerkaraszewski at 8:12 AM on March 3 [16 favorites]


If he is a danger he should be secure well away from the public.

So, just to clarify things: my mom worked for 10+ years in a facility for (incredibly) violent offenders like this man, who weren't mentally competent to be put into "regular" prison. These sorts facilities for these people are still prison. They are still locked in there, monitored possibly more extensively than regular prisoners, given jobs if they can take them and so on. But the rehabilitative aspect is totally different.

Regardless of what they did, you can't just throw a person like this in regular jail. Not because it's cruel or inhumane (I mean, it is, but that's a totally different argument to have) but because prison isn't just for keeping people out of society, it's for rehabilitating them. And you can't rehabilitate a person with diminished mental capacity the way you can a person who understands full well what they did, and you can't mind them like a person who can care for themselves.
posted by griphus at 8:15 AM on March 3 [77 favorites]


He certainly should be in a secure facility, but regular prisons lack the appropriate staff and training to deal with developmentally disabled people. He can't even bathe by himself, how are prison guards supposed to deal with this guy? He can't just be out running around obviously, but prisons aren't equipped for him, death row or not.

On preview, griphus said it way better.
posted by mrgoat at 8:21 AM on March 3


@supercres I hope someone makes exactly this argument in an amici brief to the Supreme Court. You're right, people who don't know statistics (like Supreme Court justices) wont necessarily understand things like "tester effects".
posted by gkhan at 8:22 AM on March 3


If he is a danger he should be secure well away from the public.

Yes, absolutely. But if the underlying problem is that he isn't mentally competent, then he should be in a high security institution of some kind, rather than the big house.

There is just no way to make a sensible, humane and just policy for something as barbaric as capital punishment.

I used to be more or less ok with the death penalty, but now I think that these "edge cases" are the real problem -- they represent too large a proportion of the people on death row, there are all kinds of institutional biases around class and race, and then there are all the repeated scandals around faked or mishandled evidence, coerced confessions, etc. I just don't see any way to have a death penalty that doesn't create more problems than it purportedly solves, and I wish it would go away either legislatively or via the courts.
posted by Dip Flash at 8:22 AM on March 3 [5 favorites]


One with high security where he can't "accidentally" get out and potentially murder someone else?

Well, yes. As I said in my second comment here.
posted by feckless fecal fear mongering at 8:22 AM on March 3


A lot of people (and the main post) are saying he cannot bathe independently, but the quote from the article is that when he was living on his own, he did not bathe regularly. That seems like an important difference that doesn't suggest as severe a level of impairment.
posted by Mitrovarr at 8:26 AM on March 3 [11 favorites]


If the argument is really, "this guy has no mental faculties to understand that he did something wrong" then we have no reason to believe he won't do the same thing again given the opportunity.

I don't think there is anyone saying that he should be released, is there?
posted by yoink at 8:26 AM on March 3 [2 favorites]


Hall has been on death row for 35 years. That, in itself, is a scandal. In three years' time, Hall will be as old as his alleged IQ.

The process is institutionally racist, prolonged and cruel in addition to being grossly flawed. It is little more than a means of holding someone in barely tolerable conditions until it is fit to kill them. Even if one were to support the death sentence, 35 years of back and forth can't seem like the effective application of justice.

However, the issue of IQ is somewhat misleading here insofar as it relates to criminal competency. Ten years before Hall murdered Hurst he committed another rape, gouging out his victim's eyes so that he could not be identified.
posted by MuffinMan at 8:28 AM on March 3 [3 favorites]


From the linked article: Hall is “[d]escribed as ‘gullible and easily influenced,’” and he “lost money gambling and by giving . . . money to anyone who paid attention to him.”

Hall was accompanied by a man named Ruffin in the abduction, rape, and murder of Hurst and in the convenience store robbery that followed, leading to the death of a sheriff's deputy. If Hall is as easily influenced as the description suggests, then culpability would seem to be a real issue here. Ruffin was initially sentenced to death, but this was changed to a sentence of life imprisonment.

Hall confessed. His confession provided the essential evidence linking him to the Hurst murder. In the confession, Hall stated that [M.C.] Ruffin raped and killed Karol Lea Hurst and that he (Hall) did not kill or rape Hurst. Nevertheless, the jury convicted Hall of first degree murder as a principal to the crime, and the trial court sentenced him to death. Ruffin won a victory in the state Supreme Court after his attorneys argued that the shooting of Hurst should not have been introduced as an aggravating factor in the case regarding the shooting of the deputy. As a result, Ruffin's sentence went from death by electrocution to life imprisonment.

This would seem to speak to a whole range of issues, starting with culpability and reaching all the way to "Why was this person apparently not receiving adequate care, supervision, or community assistance in the first place?"

Medical evidence shows that Hall participated in the rape of Karol Hurst, so believe me when I write that I don't think Hall should ever be allowed outside a secure institution ever again, but there's a lot of strange procedural stuff surrounding his trial and sentencing.

I honestly don't care that much about whether he understands what he did. If he is a danger he should be secure well away from the public.

And no one here is arguing otherwise. The argument is about whether or not the state of Florida should put him to death.
posted by kewb at 8:28 AM on March 3 [4 favorites]


This may be of some interest: Appendix containing doctor's assessments of Hall filed by his legal representation as part of the writ of certiorari to the Florida State Supreme Court.
posted by kewb at 8:36 AM on March 3 [2 favorites]


prison isn't just for keeping people out of society, it's for rehabilitating them.

In all seriousness, I'm not sure this has been true for at least a few decades. I certainly never hear anything about it, if so.
posted by corb at 8:40 AM on March 3 [4 favorites]


Regardless of what they did, you can't just throw a person like this in regular jail. Not because it's cruel or inhumane (I mean, it is, but that's a totally different argument to have) but because prison isn't just for keeping people out of society, it's for rehabilitating them.

I agree completely with your conclusions, but I do need to point out: rehabilitation has not been the purpose of prisons for a very long time. In places like Florida, it's quite possibly never been the purpose of imprisonment. And in the mind of someone who wants to put inmates into solitary and throw away the key (because it's punishment, so they should goddamn well be punished!), there will never be any traction for special accommodations for the mentally ill.
posted by Mayor West at 8:41 AM on March 3 [1 favorite]


I consider most application of the death penalty to be cruel and unusual punishment. If however the person is severely mentally retarded, then the death penalty actually becomes slightly less cruel and unusual when compared with most executions.
posted by jeffburdges at 8:42 AM on March 3


If however the person is severely mentally retarded, then the death penalty actually becomes slightly less cruel and unusual when compared with most executions.
posted by jeffburdges at 11:42 AM on March 3 [+] [!]


How is that? Do people with mental disabilities feel pain differently, or have less valuable lives because they may not understand what's happening to them?
posted by roomthreeseventeen at 8:43 AM on March 3 [9 favorites]


american prisons do a shit job at rehabilitation - but just because you don't hear about it doesn't mean there aren't people out there working in rehab programs in prisons. off the top of my head i can think of schooling (my grandmother taught in a prison, actually), knitting, rodeos, drug rehab, training assist dogs, sewing dolls for kids and the list goes on. these types of programs are often stuffed with participants and good behavior is a requirement for any i've ever heard about.
posted by nadawi at 8:45 AM on March 3 [4 favorites]


If however the person is severely mentally retarded, then the death penalty actually becomes slightly less cruel and unusual when compared with most executions.

Say what now. How is it cruel to have the State murder this guy, but it's less cruel to murder that guy?
posted by feckless fecal fear mongering at 8:45 AM on March 3


Scott Turow on the death penalty in the US. I am completely convinced by his argument that you can be for the death penalty in the abstract but believe that process is irretrievably broken in the US.

I have another problem with the death penalty, which is that it's a distraction. You tell someone you're not going to kill them, and then you throw them into a horribly fucked up prison system and act like you're doing them a favor. If we didn't have that penalty to take in and out of the equation, we might be forced to look at what else we are doing. I read an article about people sentenced to death for crimes they committed as juveniles. One of them was upset when his sentence was commuted to life without parole, because he felt people would feel less urgency about reviewing his case.
posted by BibiRose at 8:56 AM on March 3 [2 favorites]


In all seriousness, I'm not sure this has been true for at least a few decades. I certainly never hear anything about it, if so.
...
rehabilitation has not been the purpose of prisons for a very long time

Like nadawi points out, if this were true, why would we be "wasting" money on prison education and vocational programs? The system is miserably, miserably broken, but we are not yet at the point where getting locked up means your potential for self-improvement is completely annihilated.

The mere existence of things like prison libraries shows that despite everything, there are people still trying to make sure something rehabilitative happens to prisoners besides their time and comfort being confiscated.
posted by griphus at 8:56 AM on March 3 [3 favorites]


If however the person is severely mentally retarded, then the death penalty actually becomes slightly less cruel and unusual when compared with most executions.
posted by jeffburdges


This is a disturbing statement.
posted by futz at 8:57 AM on March 3 [9 favorites]


I'm not a psychologist but I work closely with them, and do standardized assessment regularly in my own field. One thing I'm curious about is how the new DSM-V criteria for intellectual disability might impact cases like this. From what I understand (again! not a psychologist!), IQ is no longer part of the diagnostic criteria (although still referenced), with greater import placed on adaptive functioning. In the conversations I've had about this topic, it seems that the wording is vague and interpretable enough that even many psychologists disagree about what the interpretation is or should be, and unless there is a revision, it may be several years before the criteria is applied uniformly across the discipline.
posted by lilnublet at 9:10 AM on March 3 [1 favorite]


I believe the idea is that a disabled person is less subject to the "torture" of thinking about his pending execution and the ways in which prison workers and other people in his life are part of it, may be thinking about it, and perhaps want it and otherwise spinning it over and over and over.

The difference I think, is the difference between someone like me being in dumb animal pain from stepping on a fish bone in the mud and someone with an unhealthy, obsessive WebMD habit stepping on the same dirty bone.
posted by Lesser Shrew at 9:10 AM on March 3


griphus: "Like nadawi points out, if this were true, why would we be "wasting" money on prison education and vocational programs?"

Because it makes us out here all feel like we're "helping" them.

I've never been able to understand how life in prison with no chance of ever getting out is less cruel than death. If it were me, and I absolutely did the crime, put me down. Don't lock me up in a cage for 50 years. I'm not talking about cases of spurious evidence or general railroading, I'm talking about cases more like this one. They (He) did it and confessed. Mental faculty doesn't factor into it for me.
posted by Big_B at 9:10 AM on March 3 [3 favorites]


I'm anti-death-penalty, but I'm realizing now that my position has always been kind of abstract. This graf, from the first link, really got to me and is making me think about it differently:

Hall, however, also took an IQ test where he scored a 71 — and Florida law follows a bright line rule forbidding a death row inmate from being classified as intellectual disabled if their IQ is just one point over 70. A different IQ test showed his score to be as low as 60, but Florida intends to move forward with executing Hall, regardless. If he had scored just one point lower on the test that showed his IQ to be 71, Hall would be allowed to live, but because he was just slightly over the line, Florida claims the right to kill him.

The thing is, "Florida" doesn't intend to do anything. Florida is a place. It is not a thing that can act.

The decision to execute him anyway is being made by an actual person or actual people. Someone or some group of people get to decide this. These people go home to their families at night, then get up and go to work again the next morning. There are actual, real-live people deciding that one point on some stupid IQ test is reason enough to kill someone.

I've always been abstractly anti-death-penalty, but thinking about it this way is just baffling to me. Who the hell do those people think they are?
posted by mudpuppie at 9:14 AM on March 3 [7 favorites]


Who the hell do those people think they are?



Good Christians?
posted by TheWhiteSkull at 9:16 AM on March 3 [5 favorites]


Like nadawi points out, if this were true, why would we be "wasting" money on prison education and vocational programs?

Because prison is incredibly boring, so prisoners would like something to do besides be bored. Also, doing stuff like knitting calms prisoners down, which makes prisons run smoother.
posted by 23skidoo at 9:17 AM on March 3 [1 favorite]


They (He) did it and confessed. Mental faculty doesn't factor into it for me.

You don't think that his mental faculties, or lack thereof, have something to do with his confession?

You should probably read zarq's comment upthread.

Good Christians?

That's the interesting thing. Executing criminals only makes sense as a punishment if you believe in some sort of afterlife. If you don't, there's no punishment, because the person who should be feeling the punishment simply doesn't exist anymore.
posted by feckless fecal fear mongering at 9:18 AM on March 3


Well, the descriptions of Hall -- can't bathe himself independently, etc. -- do come from his attorneys. Do we reflexively believe everything someone's attorneys say or just when it's connected to views we have about related issues.
posted by ambient2 at 9:22 AM on March 3 [2 favorites]


The thing is, "Florida" doesn't intend to do anything. Florida is a place. It is not a thing that can act.

"Florida" also refers to the State of Florida, a government set up to do certain things on behalf of its citizenry, such as build roads, maintain the public safety and execute people.
posted by Etrigan at 9:23 AM on March 3 [3 favorites]


the idea that no rehabilitation happens in prison is one of those things that keep ex-cons from getting a chance at life once they're out. this isn't about making us feel like we're "helping." there has been lots of research that shows that rehabilitation works (giving prisoners more opportunities after prison/reducing re-offending/etc). yes prison is boring, yes knitting helps calm prisoners down - but filling their time with books and knitting is still helping them.
posted by nadawi at 9:24 AM on March 3 [3 favorites]


Sigh. You know, it would be pretty easy to solve these dilemmas by just not executing anyone.

Would be even easier if those killers didn't stoop to murder in the first place...
posted by Alexandra Kitty at 9:27 AM on March 3 [1 favorite]


ambient2 - did the prosecution give evidence to the contrary - do they say he was just pretending to have an intellectual disability? if there's no statement to the contrary, it seems fair to believe the defending attorneys. from my reading it looks more like florida is saying yes he's disabled but we can still kill him because he managed an extra point on his iq test. it doesn't seem like they're debating the specifics of his condition - just that they don't have to care.
posted by nadawi at 9:28 AM on March 3


When he tried to live independently, he “could not cook for himself or clean his own clothes and did not bathe regularly.” And he was completely unable to handle his own finances. ”

These are not just random items, they are activities of daily living (ADLs) The ability to perform ADLs are used in healthcare as a measurement of the functional status of a person, particularly in regards to people with disabilities and the elderly. Not bathing regularly is equal to not being able to bathe regularly is equal to not being able to manage one's own hygiene. Not bathing, and not being able to bathe are essentially the same thing when assessing ADLs.
posted by Sophie1 at 9:28 AM on March 3 [16 favorites]


That's the interesting thing. Executing criminals only makes sense as a punishment if you believe in some sort of afterlife. If you don't, there's no punishment, because the person who should be feeling the punishment simply doesn't exist anymore.

The opposite it true. Not getting to exist is the punishment. You're robbed of the rest of your life. If there were an afterlife, it would be less of a punishment because you could repent and be on your way to paradise.

Second, because "'Vengeance is mine' said the Lord", the existence of an afterlife should reinforce the idea that it's not the job of humans to punish- and that prison should be about public safety and rehabilitation.
posted by beau jackson at 9:29 AM on March 3 [2 favorites]


(Rehabilitation in prisons does a number of things: it legitimates the prison ideologically because "it's not just about punishment"; it blunts criticism of other prison conditions; it exerts some social control over prisoners because it is such a desirable alleviation of boredom and loneliness that people will do a great deal to participate; and it extracts labor, since some "rehabilitation" programs are really "working for 30 cents an hour" programs. As I understand it, because people with felony convictions already find it almost impossible to get work outside of prison, "rehabilitation" is not going to lead to a productive career for most people. Certainly, good people teach in prisons; certainly, prisoners learn and grow in them. But the purpose of prison is not rehabilitiative, nor do "rehabilitation" programs function that way.

(I think people who don't have a lot of political power assume that the "purpose" of prisons is somehow about "morality" - they assume that either politicians believe that prisoners are bad people and thus don't deserve rehabilitation, or politicians believe that prisoners have the potential to become good citizens and thus do deserve rehabilitation. But that kind of debate is...well, it's a philosophical question that occupies people who don't make decisions, and it's window dressing on the decisions. Prisons do a lot of things - they sustain themselves, as any large bureaucracy tries to do; they provide a way to funnel a lot of money to certain corporations, so they're a political patronage system; they're a way to channel tax dollars to private corporations; they're a way to buy votes by creating jobs where no jobs exist; they're a source of cheap labor for certain industries; they're an ideological apparatus for mobilizing white voters out of fear of black crime....They're also a large and messy system that we've always sort of had, and they are going to operate chaotically and unaccountably because their processes have accreted over time. Compared to all this stuff, "should prisons primarily seek to rehabilitate or seek to punish" is just a joke. That's not even a serious question except if you're debating in a "what do you think is right in the abstract" format.)
posted by Frowner at 9:30 AM on March 3 [15 favorites]


There's no practical reason for the death penalty. It even costs more than life in prison. I've never heard a non-emotional reason advocating for it.
posted by agregoli at 9:30 AM on March 3 [3 favorites]


i love that the idea that prisons have a rehabilitative function is tossed aside as antiquated. Yes, the bad old days where we cared about people, man that was some fucked up historical shit
posted by angrycat at 9:31 AM on March 3 [13 favorites]


roomthreeseventeen: " How is that? Do people with mental disabilities feel pain differently, or have less valuable lives because they may not understand what's happening to them?"

The attitude that a lesser value should be placed on the lives of the severely intellectually disabled is not exactly unusual. Studies have shown that doctors in the US and UK may deny life-saving care to people with mental disabilities. Quality of life is probably a determining factor as well.
posted by zarq at 9:33 AM on March 3


I've never heard a non-emotional reason advocating for it.

That can't be true, surely? I mean, the deterrence argument is clearly one that is based on measurable criteria of "effectiveness," no? Now, all the measurements show that the argument is false and that capital punishment is ineffective as a deterrent. But that doesn't mean that the argument isn't made.
posted by yoink at 9:33 AM on March 3 [1 favorite]


yes prison is boring, yes knitting helps calm prisoners down - but filling their time with books and knitting is still helping them.

Books and knitting and television and whatever else also allow the prisoners something that can be taken away as punishment -- it's my understanding that dealing with a bunch of inmates with nothing could lose could be a difficult venture.
posted by mr. digits at 9:35 AM on March 3 [2 favorites]


arguments that are made in the face of strong evidence to the contrary are arguments made on emotion.
posted by nadawi at 9:36 AM on March 3 [4 favorites]


Rational arguments to me mean ones based on reality, but your mileage may vary.
posted by agregoli at 9:36 AM on March 3 [1 favorite]


Second, because "'Vengeance is mine' said the Lord", the existence of an afterlife should reinforce the idea that it's not the job of humans to punish- and that prison should be about public safety and rehabilitation.

When has the US political discourse ever been about what Jesus actually said?
posted by Talez at 9:37 AM on March 3


sure - there's lots of reasons for those programs - the fact is that research still shows that these programs help prisoners and reduce the chances that they'll end up back in prison.
posted by nadawi at 9:37 AM on March 3


yoink: "I mean, the deterrence argument is clearly one that is based on measurable criteria of "effectiveness," no?"

Out of curiosity, does anyone know if there's any situation where a deterrence strategy actually has been shown to work effectively?
posted by zarq at 9:39 AM on March 3


One thing that's not been mentioned yet is that he's also mentally ill. Most of the reports in that link posted above suggest that he experiences delusions and hallucinations, although this is fairly well controlled with medication in prison. Some of the reports state that he has schizophrenia, which would be most consistent with the symptoms and is presumably what he is being medicated for.
posted by Mitrovarr at 9:40 AM on March 3


In all seriousness, I'm not sure this has been true for at least a few decades. I certainly never hear anything about it, if so.

There's this, an issue being debated in NY state right now and on the news daily, at least here.
posted by aught at 9:41 AM on March 3


Transcript (PDF) of the argument is up.
posted by dsfan at 9:49 AM on March 3


Out of curiosity, does anyone know if there's any situation where a deterrence strategy actually has been shown to work effectively?

It's my understanding that studies show deterrence works when punishments are consistent. In other words, an enormous punishment that only follows a crime sometimes poorly deters crime, but even a small punishment that nearly always follows a crime does deter that crime.
posted by prefpara at 9:51 AM on March 3 [2 favorites]


yoink: "I mean, the deterrence argument is clearly one that is based on measurable criteria of "effectiveness," no?"

Out of curiosity, does anyone know if there's any situation where a deterrence strategy actually has been shown to work effectively?


Based on surveys of actual criminals, when the victim can immediately and effectively fight back, and is perceived to be able to, has a pretty strong deterrence effect for most criminals.
posted by bartonlong at 9:51 AM on March 3 [2 favorites]


Interesting to contrast this case with that of Canadian murderer Vince Li who beheaded and partially ate his victim when he had a psychotic attack. Li has just been allowed to leave the mental hospital he has been treated in for the past six years on his own for the first time, as he has been a model patient and his mental issues have been treated.
posted by MartinWisse at 9:56 AM on March 3 [4 favorites]


I propose that we eliminate IQ as an arbitrary execution standard and replace it with three games of Ms. Pac-Man.

If you can't get to the pretzel level at least, off with your head.
posted by delfin at 10:06 AM on March 3 [1 favorite]


Those without sufficient quarters for the machine can apply to a state licensed Ms Bonds-Man for a loan of $1 at the low, low daily interest rate of 164702.5%
posted by forgetful snow at 10:09 AM on March 3


Based on surveys of actual criminals, when the victim can immediately and effectively fight back, and is perceived to be able to, has a pretty strong deterrence effect for most criminals.

That only deters someone against selecting a particular target, not against committing a crime.
posted by MisantropicPainforest at 10:16 AM on March 3 [5 favorites]


Big_B: "I've never been able to understand how life in prison with no chance of ever getting out is less cruel than death. If it were me, and I absolutely did the crime, put me down. "

Because when it's invariably found that you have executed an innocent individual you can't unexecute them.
posted by Mitheral at 10:26 AM on March 3 [6 favorites]


To my non-lawyering self, there appears to be a number of factors in this not made clear in this post and accompanying article:

1. He was sentenced to death by jury twice. (in 1978 and 1991, after the initial death sentence was vacated by the FSC in 1989.)
2. His appeals made no specific mention of mental retardation until 1997 (see "Case Information" below)
3. His accomplice was "only" sentenced to life in prison, which would intimate he pulled the trigger.
4. There were two murders, a. A pregnant woman and b. A police officer



Case Information:

Hall filed a Direct Appeal with the Florida Supreme Court on 07/06/78, challenging his conviction for First-Degree Murder and the resulting death sentence. Hall raised a number of issues on appeal: the state failed to prove its case in the trial, inflammatory remarks by the prosecutor and commenting on Hall’s refusal to testify, and collateral crime evidence admitted in the trial. The FSC affirmed the conviction and sentence of death on 07/16/81.

A death warrant for Hall was signed by the Governor on 09/09/82, and the execution was set for 10/06/82.

Hall filed a 3.850 Motion with the Circuit Court on 09/28/82, which was denied on 10/01/82.

A 3.850 Motion Appeal, Petition for Writ of Habeas Corpus and a Stay of Execution were filed with the Florida Supreme Court on 10/02/82. Hall cited the following issues in the appeal: the court improperly denied the motion to vacate, ineffective assistance of counsel, Hall was not present at some stages of the jury selection, and sentencing errors. The FSC affirmed the denial of the 3.850 Motion, denied the Petition for Habeas relief and the Stay of Execution on 10/05/82.

A Stay of Execution was issued by the U.S. District Court, Middle District, on 10/05/82 and expired on 06/03/83.

Hall filed a Petition for Writ of Habeas Corpus with the U.S. District Court, Middle District on 9/30/82 that was denied on 05/18/83.

On appeal, the U.S. Circuit Court of Appeals affirmed in part and reversed in part the decision of the USDC. The case was remanded for an evidentiary hearing on 05/16/84.

The State filed a Petition for Writ of Certiorari with the U.S. Supreme Court on 01/29/85 that was denied on 05/13/85.

Hall filed a Petition for Writ of Certiorari with the U.S. Supreme Court on 02/28/85 that was denied on 05/13/85.

On 01/08/86, the USDC denied relief, and the USCA affirmed this decision on 11/17/86.

Hall filed a Petition for Writ of Certiorari with the U.S. Supreme Court on 07/06/87 that was denied on 10/13/87.

Hall filed a Petition for Writ of Habeas Corpus with the Florida Supreme Court on 10/14/87, arguing that the court did not consider non-statutory mitigating circumstances in the sentencing phase of the trial. Prior to this appeal, the U.S. Supreme Court ruled in Hitchcock v. Dugger (1987) that courts must consider non-statutory, as well as statutory mitigating circumstances, in the sentencing phases of capital trials. The FSC denied the Petition on 05/12/88.

On 08/11/88, a second death warrant was signed by the Governor, scheduling the execution for 09/20/88.

Hall filed a 3.850 Motion with the Circuit Court on 08/23/88, which was denied on 09/09/88.

Hall filed a 3.850 Appeal with the Florida Supreme Court on 09/12/88, citing that the court erred in not weighing non-statutory mitigating circumstances in the sentencing phase of the trial. Previously, the FSC denied a Habeas Petition that argued those exact points, yet the FSC decided to address these points in the present 3.850 Motion Appeal, instead of the Habeas Petition.

During the deliberation in this appeal, the FSC issued a Stay of Execution on 09/14/88. On 03/09/89, the FSC vacated Hall’s death sentence and remanded it for resentencing with a new jury. In addition to this ruling, the court ordered that all future Hitchcock claims be raised in 3.850 motions, not Habeas petitions.

Hall filed a pro se Petition for a Writ of Habeas Corpus with the Florida Supreme Court on 01/23/91 that was denied, without comment, by the FSC on 02/26/91.

Hall was resentenced to death on 02/21/91. The jury recommended a death sentence by a vote of 8-4.

Hall filed a Direct Appeal with the Florida Supreme Court on 03/08/91, citing numerous issues: juror selection bias; exclusion of sympathetic juror instructions; exclusion of co-defendant’s conviction; exclusion of sympathetic witness testimony; improper consideration of jury recommendation by the judge; the re-sentencing court improperly found additional aggravating factors; the state did not prove two aggravating factors – avoid or prevent arrest and cold, calculated, and premeditated murder; unconstitutional vagueness of the heinous, atrocious, or cruel aggravating factor; findings of mitigating evidence; and death sentence not proportionate with his codefendant’s sentence. The FSC affirmed the resentence on 01/14/93.

Hall filed a Petition for a Writ of Certiorari with the U.S. Supreme Court on 05/17/93 that was denied on 10/04/93.

Hall filed a 3.850 Motion with the Circuit Court on 02/14/97, which was denied on 10/30/97.

Hall filed a 3.850 Motion Appeal with the Florida Supreme Court on 12/15/97, citing five issues: the unconstitutionality of Florida’s capital sentencing statute in that it allows for the execution of a mentally retarded inmate, Hall is not competent to be resentenced, electrocution is cruel and unusual punishment, trial court’s summary denial of all but one of Hall’s thirty-three claims violated due process guarantees, and fundamental error that aggravators outweighed mitigating circumstances in the resentencing. The FSC affirmed the lower court’s denial of the 3.850 Motion on 07/01/99.

Hall filed a Petition for Writ of Habeas Corpus with the Florida Supreme Court on 08/02/00, citing ineffective assistance of trial counsel. The FSC denied the Petition on 05/10/01.

Hall filed a federal Petition for Writ of Habeas Corpus with the U.S. District Court, Middle District on 08/07/00. On 01/29/01, the USDC administratively closed the case pending resolution of the state-level Habeas Petition. On 07/26/01, the USDC administratively reopened the case, which is currently pending before the court. On 03/20/03, the USDC stayed proceedings in the case pending the resolution of the 3.850 Motion. On 07/12/04, the USDC administratively closed the case pending resolution of state-level proceedings.

Hall filed a 3.850 Motion in the Circuit Court on 08/10/01, citing mental retardation issues. The motion is pending before the court.

Hall filed a Petition for Writ of Certiorari with the U.S. Supreme Court on 10/12/01 that was denied on 02/19/02.

Hall filed a 3.851 Motion with the Circuit Court on 11/30/04, citing claims of mental retardation. The motion is pending before the court
posted by Debaser626 at 10:30 AM on March 3 [4 favorites]


Big_B: "I've never been able to understand how life in prison with no chance of ever getting out is less cruel than death. If it were me, and I absolutely did the crime, put me down."

While I understand the sentiment (I'm not sure that I personally would prefer life in prison over death either under those specific circumstances) it has absolutely zero bearing on real life cases and circumstances because of the one qualifier in your sentence that should not be casually thrown into an argument and then be ignored:

"I absolutely did the crime"

This little bit is absolutely massive.

Even if we put aside for a moment the question if putting someone to death can ever be justified or not and we assume that everybody agrees that some people deserve to die and should be put to death if found guilty we still have one big problem: even under the best of circumstances we're still dealing with humans investigating and evaluating evidence and dealing out justice which means that the process can never be trusted to be entirely free of human errors and bias, never mind technical and scientific errors in handling and interpreting evidence. Thus, what you describe above, does not really apply outside the realm of making a subjective choice for yourself. You may know you committed the crime and you may prefer to be put to death instead of life in prison. But any attempt to generalize from there or to use this as a factor in shaping how the justice system operates would potentially lead to closing the door on reevaluating cases.

And this is my biggest gripe with the death penalty because it kicks in and ends the discussion (for me at least) before I even get to the question of whether or not a death sentence can be a valid expression of justice:

The death penalty is, once executed, a permanent 100% irreversible act. However, there can never be 100% certainty about the specifics of a crime and about the guilt of the accused. I don't care if the certainty of guilt is 99.9999999%. It's still not 100% which means that there could have been a mistake. For this reason, even if I were to agree that death would be an appropriate punishment for a crime, I could never agree to handing out a death sentence. If there is even a minute chance of having to reverse judgement then there must also be a possibility of reversing the sentence.

If there is one thing I firmly hold to be the most important aspect of any acceptable justice system in the face of the human proclivity for making mistakes (honest ones and otherwise), our general tendency toward biased perception and interpretation and our lousy track record with regards to attempts at objectivity, it is this: it is utterly unacceptable to risk punishing someone innocent in order to ensure punishment for the guilty. Doing so implies a further motive beyond justice that trumps it and pushes aside its requirement to protect the innocent and that's vengeance. Which is not justice.
posted by Hairy Lobster at 10:31 AM on March 3 [2 favorites]


On preview... what Mitheral said in a single sentence.
posted by Hairy Lobster at 10:32 AM on March 3


dsfan: "Transcript (PDF) of the argument is up."

Nearly all of the judges were picking his argument to pieces and demanding clarifications, but he held his ground.
JUSTICE KENNEDY: We have later in the week an argument about economic theories. And it's a little different because in that case, the Court ­­ it's the Court's own jurisprudence and we have not said, as we have in Atkins, that it's up to the State. But do you think we defer to psychiatric ­­ psychologists and psychiatrists any more than we ­­ or any less than we do to economists?

MR. WAXMAN: Oh, I think it has to be much, much, more because, as this Court pointed out, this is a clinical condition. It's a condition that can only be appropriately diagnosed by professionals.

JUSTICE KAGAN: Mister ­­

JUSTICE SCALIA: They change ­­ they changed their mind, counsel. This APA is the same organization that once said that homosexuality was a ­­was a mental disability and now says it's perfectly normal. They change their minds.

MR. WAXMAN: Justice Scalia ­­

JUSTICE SCALIA: And they have changed their minds as to whether 70 or 75 is the ­­is the new test ­­for for mental retardation.

MR. WAXMAN: The latter is not true. The standard ­­two things that are not in dispute in this case. We're only here talking about prong one, which is significantly subaverage intellectual functioning and nothing else. And everyone agrees, all the States agree, they all agreed at the time Atkins was decided, that their ­­ that the clinical definition is defined by three elements and that the first element, significantly subaverage intellectual functioning is defined as a person whose intellectual function is two or more standard deviations below the mean intellectual functioning of contemporary society.
He also discusses the difference between taking a mean of multiple scores on a test and obtaining a composite score. I can't tell if Justice Alito has trouble with the concept of a composite score or simply disagrees with Waxman's assessment.
posted by zarq at 10:32 AM on March 3 [1 favorite]



The thing is, "Florida" doesn't intend to do anything. Florida is a place. It is not a thing that can act.

"Florida" also refers to the State of Florida, a government set up to do certain things on behalf of its citizenry, such as build roads, maintain the public safety and execute people.


It's a figure of speech, metonymy.
posted by sweetkid at 10:34 AM on March 3 [1 favorite]


3. His accomplice was "only" sentenced to life in prison, which would intimate he pulled the trigger.

no - the other guy got a sentence of death originally and then it was reduced on procedural grounds.
posted by nadawi at 10:34 AM on March 3 [1 favorite]


fucking scalia talking about gay stuff when it's not even the topic of conversation. that man has such a hate-on.
posted by nadawi at 10:35 AM on March 3 [6 favorites]


Prisons do a lot of things - they sustain themselves, as any large bureaucracy tries to do; they provide a way to funnel a lot of money to certain corporations, so they're a political patronage system; they're a way to channel tax dollars to private corporations; they're a way to buy votes by creating jobs where no jobs exist; they're a source of cheap labor for certain industries; they're an ideological apparatus for mobilizing white voters out of fear of black crime...

Frowner, I hear where you're coming from, but there's a very big omission on that list: "keeping people who've committed multiple rapes and mutiliations away from other people they could harm." If you leave that off the list of what prison is for, you're not really engaging with the prison or justice system.
posted by ThatFuzzyBastard at 10:39 AM on March 3 [6 favorites]


There is a strong case that not merely all humans but all animals are equal, roomthreeseventeen, et al., which makes eating meat cruel and unusual as well. Isn't it necessary to acknowledge a role of understanding if you're going to also justify eating meat?

Alright, I'm mostly mocking the court's distinction that execution becomes "cruel and unusual" only when the defendant fails to understand their crime. Isn't it ridiculous that cruelty depends upon the defendants understanding of the crime rather than their understanding of the the punishment?

There is simply no good argument for the death penalty : It fails as a deterrent. It's irreversible. It costs more. It's applied unfairly. etc. etc. etc.  Ignore all the subtlety, just dump it for being useless.
posted by jeffburdges at 10:45 AM on March 3


jeffburdges - for whatever it's worth - it absolutely wasn't clear to me that was the argument you were making. it read to me that you were sincerely putting forth the argument that mentally handicapped people are less able to be victims of cruel and unusual punishment due to their disability. it seemed like you were arguing that this man should be put to death.
posted by nadawi at 10:52 AM on March 3


Interesting to contrast this case with that of Canadian murderer Vince Li who beheaded and partially ate his victim when he had a psychotic attack. Li has just been allowed to leave the mental hospital he has been treated in for the past six years on his own for the first time, as he has been a model patient and his mental issues have been treated.

Although that situation has caused a bit of an outcry, both by elected politicians in both Manitoba and Ottawa and the general population - I've definitely seen grumbling on facebook from law school friends.

The grumbling is odd because it doesn't really engage with, like, the actual reports by the treating psychiatrist, but don't want people to get the idea that this is commonplace up here. It's big news.

To my non-lawyering self, there appears to be a number of factors in this not made clear in this post and accompanying article:
2. His appeals made no specific mention of mental retardation until 1997 (see "Case Information" below)


Well remember though that the ban on executing people with mental retardation wasn't enshrined by the Supreme Court until 2002. I can understand why it wouldn't be brought up if it wasn't going to reduce the sentence.

4. There were two murders, a. A pregnant woman and b. A police officer

That has no relevance to the issue in question, though. We don't say "it's cruel and unusual to execute a person with mental retardation, unless they did something seriously wrong." The ban on cruel & unusual punishment is unqualified.

1. He was sentenced to death by jury twice. (in 1978 and 1991, after the initial death sentence was vacated by the FSC in 1989.)

Also irrelevant. If the death penalty is unconstitutional in this case, it doesn't matter what a jury thinks. This is a matter of law, not fact (not even really mixed fact & law), and in any event the jury's decisions were made before the ban on executing persons with mental retardation came into place.
posted by Lemurrhea at 10:59 AM on March 3


Interesting to contrast this case with of Canadian murderer Vince Li who beheaded and partially ate his victim when he had a psychotic attack. Li has just been allowed to leave the mental hospital he has been treated in for the past six years on his own for the first time, as he has been a model patient and his mental issues have been treated.

I don't know how I feel about this. I'm willing to concede that the man was batshit insane and probably would have never done any such thing if he were in his right mind. On the other hand, it's not like it's impossible he'll ever have another psychotic break. People have gotten out on good behavior before and gone on to re-offend heinously.
posted by Jess the Mess at 10:59 AM on March 3


Because when it's invariably found that you have executed an innocent individual you can't unexecute them.

If I were found guilty as an innocent man, I think I'd prefer to be murdered by the state that left to rot in a prison cell*, since it would be over more quickly. The authorities involved can live with being murders.

The death penalty is, once executed, a permanent 100% irreversible act.

So is prison. It's not like you can give a guy back his life and reputation or undo the effects of whatever psychological or physical torture he's been subjected to.

* I'm looking at this from a distance, self-preservation would probably kick in if this actually happened to me.
posted by cosmic.osmo at 10:59 AM on March 3 [1 favorite]


The opposite it true. Not getting to exist is the punishment. You're robbed of the rest of your life. If there were an afterlife, it would be less of a punishment because you could repent and be on your way to paradise.

Not existing isn't a punishment because there is no you to know that you no longer exist.

So is prison. It's not like you can give a guy back his life and reputation or undo the effects of whatever psychological or physical torture he's been subjected to.

Perhaps not, but at least you can let them out of prison. Not so easy to let them out of a coffin.
posted by feckless fecal fear mongering at 11:05 AM on March 3


So is prison.

Actual time spent in prison is irreversible. A prison sentence is certainly reversible, however. I'm reasonably confident that that, say, Cameron Todd Willingham would rather have been sentenced to life in prison--a sentence that would almost certainly be overturned today if the state of Texas had not executed him in 2004.
posted by yoink at 11:13 AM on March 3 [2 favorites]


because there is no you to know that you no longer exist.

Nor is there a 'you' to know that you do exist or to experience any more life. That is the punishment. (Not to mention that before the execution, and possibly for decades on death row, there is a 'you' who knows that you will be killed).

It's obviously nonsensical to say that being killed is not a bad thing or a "punishment".
posted by Drexen at 11:15 AM on March 3


It's obviously nonsensical to say that being killed is not a bad thing

Probably a good thing I never said that, then.

I don't think you understand what I'm getting at here. You allude to the pre-execution stress as punishment, and there I would agree. But actually killing someone? You can't have punishment without the understanding that you are being punished. No you, no punishment.
posted by feckless fecal fear mongering at 11:20 AM on March 3


No, no you = punishment. The deprivation of an individual's further life is a loss for that individual.
posted by Drexen at 11:26 AM on March 3


You can't have punishment without the understanding that you are being punished.

The corollary of this is that I can't be deprived if I don't know that I'm deprived, so if you kill me, it's not a crime.
posted by Drexen at 11:29 AM on March 3


I don't know how I feel about this. I'm willing to concede that the man was batshit insane and probably would have never done any such thing if he were in his right mind. On the other hand, it's not like it's impossible he'll ever have another psychotic break. People have gotten out on good behavior before and gone on to re-offend heinously.

Maybe it's just me, but shouldn't any person, at any time, who has killed another human being never allowed to be free again? Am I missing something here?
posted by Melismata at 11:32 AM on March 3


Drexen: It's obviously nonsensical to say that being killed is not a bad thing or a "punishment"

FFFM: Probably a good thing I never said that, then.

FFFM Previously: Not existing isn't a punishment because there is no you to know that you no longer exist.
posted by Drexen at 11:33 AM on March 3


I've been thinking about this lately --legal consequences for people that are not fit for punishments doled out on the average offender-- since I learned that the mentally ill guy who beheaded someone on a Greyhound a few years back is getting unsupervised outings in Manitoba and will be moved to an unlocked part of the mental hospital. I just have some difficulty with the idea that because this guy no longer hears voices and apparently understands why he should be taking his medication should mean he's OK to go out in public unescorted a mere 6 years after committing a gruesome murder. I would hope the bar is set a bit higher than "understands he needs to take his medication" in terms of what he needs to demonstrate to be considered safe to the public. It's not an easy thing to think about.
posted by Hoopo at 11:34 AM on March 3 [3 favorites]


Maybe it's just me, but shouldn't any person, at any time, who has killed another human being never allowed to be free again? Am I missing something here?

The answer to this is obviously no. I mean, unless you're talking about first degree murder, and then, maybe.
posted by roomthreeseventeen at 11:34 AM on March 3 [1 favorite]


Maybe it's just me, but shouldn't any person, at any time, who has killed another human being never allowed to be free again?
posted by Melismata


No.
posted by agregoli at 11:43 AM on March 3


You know, the results of an IQ test aren't some fixed quality, like a birthdate or germline genome. Setting an IQ score as a criterion for "killability" is the most numbskull act any legislature, even the one in Florida, could ever pass and a governor sign. What is wrong with people?
posted by Mental Wimp at 11:45 AM on March 3 [4 favorites]


Drexen, if you're not going to engage in good faith I really have no time for you.

You implied via your sentence that I said being killed is not a bad thing.

Nowhere did I say that.

You're welcome to disagree with my opinion but at least be honest.
posted by feckless fecal fear mongering at 11:47 AM on March 3


Melismata: " Maybe it's just me, but shouldn't any person, at any time, who has killed another human being never allowed to be free again? Am I missing something here?"

What about Dr. Jack Kevorkian or anyone else who assisted someone commit suicide?
posted by zarq at 11:51 AM on March 3


I think that many of us honestly don't understand the point you're trying to make, fffm. Does it somehow hinge on a difference between harm and punishment? Because you seem to me to be suggesting that killing someone painlessly and instantly doesn't cause them harm, since they never know that it's happened. And that makes no sense to me: I think people are harmed by the loss of potential life, even if they are not aware of the harm. So is the idea that you haven't been punished, even though you've been harmed, because punishment requires awareness that you've been punished? If so, that seems like a semantic distinction that is maybe not so important to me.
posted by ArbitraryAndCapricious at 11:51 AM on March 3


I just have some difficulty with the idea that because this guy no longer hears voices and apparently understands why he should be taking his medication should mean he's OK to go out in public unescorted a mere 6 years after committing a gruesome murder. I would hope the bar is set a bit higher than "understands he needs to take his medication" in terms of what he needs to demonstrate to be considered safe to the public.

Do you really believe that the criminal justice and medical systems in Canada have a one-block checklist on when to allow a person who killed someone to go on short unsupervised trips?
"Yep, he understands that he needs to take his medication. Let him go."
"He said yesterday that he wants to kill and eat another Greyhound passenger."
"Yes, but then he said that he'll have to do it before six p.m., because that's when he takes his meds. That's the only criterion, Stu."

Li committed a gruesome murder while having a psychotic break. A battery of psychiatrists believes that he is in no danger of having another psychotic break, given that he is still institutionalized and monitored regularly. If that is the case, then he's no more likely to kill someone than anyone else. Given that, if six years isn't enough, how long do you advocate punishing someone for his mental illness?
posted by Etrigan at 11:51 AM on March 3 [6 favorites]


So is the idea that you haven't been punished, even though you've been harmed, because punishment requires awareness that you've been punished? If so, that seems like a semantic distinction that is maybe not so important to me.

Roughly, yes.
posted by feckless fecal fear mongering at 11:53 AM on March 3


There's no practical reason for the death penalty. It even costs more than life in prison. I've never heard a non-emotional reason advocating for it.

Well, there's no practical reason for the death penalty as currently practiced in the United States. The reason it costs more is because of the long, long process of appeals before the execution can be carried out. If, immediately upon being sentenced to death, the murderer was escorted outside and shot by a single bullet to the head, the death penalty would be pretty cheap--and possibly a greater deterrent to crime.

But even assuming that the death penalty remains enormously expensive and has no discernible value as a deterrent, there is a certain moral calculus to this discussion. I think the case can be made that there are crimes so horrific that the most just response is to put an end to the life of the perpetrator. I don't think it is irrational as a society to say that if the crime shows a wanton disregard for the lives and pain of others--beating, raping, and shooting a pregnant woman, and then killing the deputy who responded to the scene, after having previously raped and gouged out the eyes of a young woman, perhaps--that we feel that your life must be forfeited, and we don't care that it costs more and it doesn't matter that it doesn't have deterrent value, because this is about something more and deeper than practical results. Sometimes we do the right thing for its own sake, even it it is costly and doesn't provide ancillary benefits.

I myself am a pacifist and oppose the death penalty in all cases on ethical grounds, but that is a stance that I came to slowly over a long period, and I don't pretend that it is easy or obvious, and I don't think it is the only position that can be reasonably argued. But it isn't over when when crunch the numbers on costs and deterrent effects, although those are good to know.
posted by Pater Aletheias at 12:00 PM on March 3 [3 favorites]


Do you really believe that the criminal justice and medical systems in Canada have a one-block checklist on when to allow a person who killed someone to go on short unsupervised trips?

No, and no we're not talking about just short unsupervised trips from what I've heard.
posted by Hoopo at 12:03 PM on March 3


Pater Aletheias: "I don't think it is the only position that can be reasonably argued."

I'm willing to take an argument in favor of the death penalty seriously if the person arguing for it has an understanding that there will be false positives, and that they would accept the death penalty if they or one of their loved ones were one of the false positives.

Not that I believe they would accept it -- of course they wouldn't -- but in the interest of comity, I'll accept their claim at face value.
posted by tonycpsu at 12:04 PM on March 3 [3 favorites]


No, and no we're not talking about just short unsupervised trips from what I've heard.

Per the CBC:
Instead of the supervised outings Li had been granted previously, he will be allowed unescorted trips from the Selkirk Mental Health Centre into the nearby city of Selkirk. The visits, to begin next Thursday, are to start at 30 minutes and increase to full days.
Further, note:
Li is also to be moved to an unlocked ward at the hospital from the secure wing where he has been kept.
He is literally still institutionalized.
posted by Etrigan at 12:08 PM on March 3


You can argue about the inhumanity of the death penalty, about whether the man in question has the capability of understanding why he is going to die, but none of that addresses what, for me, is the basic problem: you can't undo an execution if it turns out you're wrong.
posted by Mooski at 12:10 PM on March 3 [1 favorite]


I think the case can be made that there are crimes so horrific that the most just response is to put an end to the life of the perpetrator.

This argument is about emotion to me, not anything rational and practical
posted by agregoli at 12:13 PM on March 3


I wish that articles like this would indicate which tests were used to assess his IQ, and when they were normed. If it's an old test, the Flynn effect implies that the measured IQ isn't just noisy, it will be biased towards overestimation. If you're willing to make life or death decisions based on a single IQ point, then this matters quite a lot. As far as I can tell the test administered was the WAIS III, which was released in 1997, and so probably normed at about the same time. But it doesn't say when the test was administered. It must have been before 2008 because that's when the WAIS IV came out. Since the size of the Flynn effect is about 1 IQ point per year, the overwhelming likelihood is that the the test actually overstated his IQ. Odds are that, even accepting the WAIS as the right tool for the job, his IQ is actually below the Florida threshold.

I'm not a big fan of defining intellectual disability this way, and I'm even less of a fan of establishing bright lines on the basis of quite noisy instruments like IQ tests. But I wish the people who are keen on doing this would at least apply the tools properly.
posted by mixing at 12:14 PM on March 3 [2 favorites]


(Okay, on re-reading maybe the Flynn effect isn't that large. But it's still big enough to matter here)
posted by mixing at 12:17 PM on March 3


You implied via your sentence that I said being killed is not a bad thing.

Nowhere did I say that.


I don't mean to pile on, FFFM, and I don't think I'm being dishonest. You said that "not existing" is not a "punishment". I see you draw a distinction between that and saying that "being killed" is a "bad thing". That distinction seems too fine to have been obvious in this context, at least to me.

But it seems this is turning into a derail, so I hope we can drop it amicably.
posted by Drexen at 12:17 PM on March 3


"In all seriousness, I'm not sure this has been true for at least a few decades. I certainly never hear anything about it, if so."

You never hear anything about it? Man, different worlds — California is in the midst of a massive prison population adjustment, including releasing a shit-ton of prisoners for good and bad reasons. Rehabilitation, and it's twin "recidivism," are huge topics because we have a ton of low-level felons out and about now, either through early release or the massive increase in parolees for the overworked system to monitor.

Rehabilitation directly decreases recidivism. That's a big part of why it's one of the main public policy goals for imprisonment. It's not just to give prisoners something to do, it's in recognition that the vast, vast, vast majority of prisoners will be released and need to have some basic "don't go back to prison" skills.
posted by klangklangston at 12:17 PM on March 3 [3 favorites]


Etrigan, full days and unlocked wards are what I was referring to. Li's history of psychotic breaks involve him just up and leaving on a Greyhound bus to random destinations, or wandering down the road following the sun. And I do think that when one of your psychotic breaks included beheading and cannibalizing a person on the orders of God, that maybe the nature of the psychotic breaks you suffer from pose a higher risk to the public than the average person who suffers from a psychotic break. I am not coming at this from the angle of punishing him.

This is a derail, though, sorry for bringing it up at all.
posted by Hoopo at 12:24 PM on March 3 [1 favorite]


maybe the nature of the psychotic breaks you suffer from pose a higher risk to the public than the average person who suffers from a psychotic break.

And a team of psychiatrists and social workers and many other licensed professionals have determined that the likelihood of his having such a psychotic break no longer poses that risk under his current treatment regimen.

I am not coming at this from the angle of punishing him.

Then how long is long enough? You said "a mere 6 years" -- what length of time after his doctors have decided that he no longer poses that risk to society is sufficiently non-mere?
posted by Etrigan at 12:28 PM on March 3


I'm willing to take an argument in favor of the death penalty seriously if the person arguing for it has an understanding that there will be false positives, and that they would accept the death penalty if they or one of their loved ones were one of the false positives.

Accept how? Not be upset? Not seek diligently for the actual perp? Not petition for the arrest and prosecution of the actual perp? Not sue for false arrest, prosecution, execution?

As an individual of course they will fight like hell, esp. if they know they are innocent- who wouldn't? Regardless, you can't win the argument by making personal hypotheticals of false positives. The pro-capital punishment types have already gone there. They liken the risk to the expected cost of X number of construction workers lives when building a bridge. Social good outweighs individual bad.

Not that I agree with them. On the other hand, had it been my wife and my unborn child, and I learned about the previous offense, I'm not so sure how nice I would be about it.
posted by IndigoJones at 12:30 PM on March 3 [1 favorite]


And a team of psychiatrists and social workers and many other licensed professionals have determined that the likelihood of his having such a psychotic break no longer poses that risk under his current treatment regimen.

Which of course invites the bitter rejoinder, how many of these licensed professionals are living next door to him?
posted by IndigoJones at 12:33 PM on March 3 [2 favorites]


how many of these licensed professionals are living next door to him?

are you asking how many of the experts are living next to the institution where he will still be held?
posted by nadawi at 12:36 PM on March 3 [1 favorite]


That's just NIMBYism
posted by angrycat at 1:12 PM on March 3


IndigoJones: "Accept how? Not be upset? Not seek diligently for the actual perp? Not petition for the arrest and prosecution of the actual perp? Not sue for false arrest, prosecution, execution?"

No, I of course do not expect someone to not fight prosecution of themselves or their loved ones if wrongly accused. What I'm saying is that, as you rightly point out, death penalty proponents talk about it as an individual bad for social good tradeoff, so at a minimum, I would like them to at least be willing to go on record saying that if they or a loved one were wrongfully convicted, they would, after exhausting all appeals, from the execution chair, state that their death was an acceptable result for the society as a whole.

I know most of them would be lying, and statistically they're not betting very much, but having that conversation at least forces them to consider that they might be one of the individuals who are wrongfully put to death. In reality, of course, many of the people making those statements don't feel like there's any chance of that happening, and they're probably right, but someone does end up being that person, and I feel it's more productive to start with the scenario where you assume you are that person than to try to come up with some magical ratio of acceptable false positives to maintain a just society.
posted by tonycpsu at 1:34 PM on March 3 [1 favorite]


IndigoJones: "Which of course invites the bitter rejoinder, how many of these licensed professionals are living next door to him?"

Wouldn't the risk, not that I think there is one, be to the people a greyhound ride away? His immediate neighbours should be fine.

Besides these licensed professionals are the people who see him and other cases like his every day. Their exposure is much greater than even an immediate next door neighbour.
posted by Mitheral at 3:42 PM on March 3 [1 favorite]


I feel it's more productive to start with the scenario where you assume you are that person than to try to come up with some magical ratio of acceptable false positives to maintain a just society.

Related: n Guilty Men
posted by anifinder at 4:03 PM on March 3


I'm pretty sure FFM was just saying that after you're dead, you're not experiencing ongoing punishment because you're dead (and therfore not sentient). We often say after somebody has died "well, at least now they're at peace". If I was the victim of crime I would not want my offender "at peace". I would want them alive and bloody remorseful. I don't think I'm alone in this - people who go on rampages and then kill themselves, or who hang themselves in prison are often described as "cheating justice" - why would that be, if being dead was punishment enough?

If somebody is so cognitively impaired that they are not able to understand the concept of their own death, or alternatively if they are just taken out and shot with no warning, there is no punishment because there is no anticipation of death. I'm not sure that I agree that using the prolonged threat of death as mental torture is the right way to punish criminals, but then I don't agree with the death penalty either so I am probably not the target demographic.

(I have been a victim of crime, and my chosen retribution would be something deeply unpleasant and prolonged, probably Viking, so probably best that victims don't have any say in it either really).
posted by tinkletown at 4:41 PM on March 3 [1 favorite]


The american cjus system is aimed at being punitive, not rehabilitative.

This dude being on death row isn't the reason the system is flawed...its flawed because he won't be the first or last person to suffer because people out there think that this is the best way to deal with ANYBODY who breaks a contract with society.
posted by hal_c_on at 5:20 PM on March 3 [1 favorite]


I was just discussing this last night with a friend; we were asking the question "what if you were called to jury duty for a potentially capital case?" My friend said she would never make that decision; I sympathize, but if I don't, then someone else will, someone who might not take it as seriously. There is no good answer, but going forward and making the best decision one can seems the most responsible thing to do...
And while I think as practiced in the US the death penalty is a disaster, I wouldn't rule it out in every case no matter what. The "false positive" of convicting the wrong person is a horribly serious problem; so is the false positive of letting someone out as "no longer a danger" who then commits further acts. Both have happened, both are tragic. There seems no pure answer, only a messy weighing of the individual merits of a case.
posted by librosegretti at 5:40 PM on March 3


From that mental assessment pdf: "Mr. Hall could not write a coherent story about a set of three pictures which depicted the bread-up of a planet, space travel to a new planet, and settlement on the new planet. He wrote one sentence and a fragment."

1. What in the ever-loving fuck is a "bread-up"? Or, is that a typo?
2. He can write, but he can't read? Earlier in the paper it says that he can recognize letters but doesn't understand the meanings of words. That doesn't make sense, right?
posted by runcibleshaw at 11:52 PM on March 3


Break-up! I am just thick sometimes.
posted by runcibleshaw at 12:21 AM on March 4


No no, a bread-up is when the lava gets all gassy and makes the planet expand, like a loaf of bread.
/hamburger
posted by Goofyy at 7:59 PM on March 4


Yeah, I'm not sure I could write a coherent story about traveling to, settling on, and breading up a planet. Except maybe the deep-fry planet. That could maybe crash into some tartar sauce nebula or something. It's like the Long John Silvers' Kids Menu in here.
posted by klangklangston at 10:35 PM on March 4


There's no practical reason for the death penalty. It even costs more than life in prison. I've never heard a non-emotional reason advocating for it.

It's one thing to be against the death penalty, but there's honestly plenty of cold, practical reasons to advocate for the death penalty.

1. Zero recidivism. The person who is executed will never commit another crime.
2. Cost. Yes, you think that it's more expensive to have the death penalty, but that is not the case. It's more expensive to have all of the safeguards we maintain to make sure we're not executing someone without offering them 13 different appeals for us to be sure they're really totally 100% correct. It's more expensive to keep them on a special Death Row. It is at least 95% cheaper to erect a gibbet or a firing squad, take the person out back, and shoot/hang them. You are out the cost of either a bullet or a rope, and you can always re-use the rope. You also eliminate any healthcare costs that the person would incur for being in prison for the rest of their life, up until their elderly years.
3. Deterrence. Yes, it doesn't deter people as currently applied, because it is rarely given, and once given, sometimes takes dozens of years to execute. If people were more consistently hanged within a year of their crime, I'd wager you'd see a lot more effective deterrence.

Again, there's moral reasons to take issue with this, but suggesting it's not practical is ignoring true practicalities.
posted by corb at 7:12 AM on March 5 [1 favorite]


sure, perhaps in a make believe land where they're just fine killing innocent people to make sure they get all the bad guys there might be ways to argue about the practicality of the death penalty. but, that's not the situation we're under and i hope we never get there.
posted by nadawi at 7:32 AM on March 5


I donno, corb's suggestions might almost eliminate pre-meditated murder, nadawi. It'll become so easy to execute someone that it's always easier to frame them for a crime punishable by death. voila!
posted by jeffburdges at 8:47 AM on March 5 [4 favorites]


2. Cost. Yes, you think that it's more expensive to have the death penalty, but that is not the case. It's more expensive to have all of the safeguards we maintain to make sure we're not executing someone without offering them 13 different appeals for us to be sure they're really totally 100% correct. It's more expensive to keep them on a special Death Row. It is at least 95% cheaper to erect a gibbet or a firing squad, take the person out back, and shoot/hang them. You are out the cost of either a bullet or a rope, and you can always re-use the rope. You also eliminate any healthcare costs that the person would incur for being in prison for the rest of their life, up until their elderly years.

But a system where we just take people out the back of the police station and shoot them in the head without the benefit of a trial, while certainly cost-effective, surely doesn't strike you as likely to be particularly just does it? What's the use of saying "if we had a really shitty system that railroaded people to a swift death it would be cheap!"? No one but psychopaths wants such a system and it's just not going to happen. Any death-penalty regime that satisfies the most basic requirements of justice (no US systems can claim to even be adequately just and impartial even yet) will be cheaper than life imprisonment.

3. Deterrence. Yes, it doesn't deter people as currently applied, because it is rarely given, and once given, sometimes takes dozens of years to execute. If people were more consistently hanged within a year of their crime, I'd wager you'd see a lot more effective deterrence.


There's just no good evidence that the death penalty--even when it is applied relatively swiftly and with inadequate safeguards against miscarriages of justice--substantially alters people's actions in the real world. There have been plenty of periods in history when the death penalty was widely and swiftly applied and they did not see the elimination of even the more minor crimes to which the death penalty was applied.
posted by yoink at 8:58 AM on March 5


It's fairly obvious that "out of sight out of mind" limits the death penalty effectiveness, i.e. if you just kill criminals then nobody remembers them as an example. If you reserve death for truly exceptional crimes, like war crimes, crimes against humanity, etc., then you create the deterrent effect through all the media circus instead, hopefully.  Also, I presume that "deterrence fails when we apply justice inconsistently" includes punishing the innocent, as well as setting the guilty free.
posted by jeffburdges at 10:19 AM on March 5


Every time we punish an innocent person for a crime, that means a guilty person went free (unless it's a matter of a crime being entirely made up, I guess) - six of one, half a dozen of the other.
posted by Holy Zarquon's Singing Fish at 10:52 AM on March 5


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