I just freed an innocent man from death row. And I’m still furious.
September 8, 2014 9:05 AM   Subscribe

I just freed an innocent man from death row. And I’m still furious. "Some people expect me to feel satisfied, or even happy. The truth is: I am angry. I am angry that we live in a world where two disabled boys can have their lives stolen from them, where cops can lie and intimidate with impunity, where innocent people can be condemned to die and where injustice is so difficult to bring to light. As I lie awake at night, mulling over the maddening details of this case, I wonder: How many more Henry McCollums are still imprisoned, waiting for help that will never come?"

In the wake of the exoneration of Henry Lee McCollum and Leon Brown, The New York Times calls for the abolition of capital punishment:
The exoneration of two North Carolina men who spent 30 years in prison — one on death row — provides a textbook example of so much that is broken in the American justice system. And it is further evidence (as though more were needed) that the death penalty is irretrievably flawed as well as immoral.... Cases of capital prosecutions based on flimsy evidence or marred by prosecutorial misconduct, not to mention racial bias, are distressingly common. Yet, even as death-penalty supporters insist that only guilty people are sent to their death, it is now clear that Justice Scalia was prepared 20 years ago to allow the execution of a man who, it turns out, was innocent.
Dahlia Lithwick examines how the case "highlights the same well-known and extensively documented problems that can lead to false arrests and convictions," and discusses how the Supreme Court, with Antonin Scalia in the lead, has repeatedly had a hand in sanctioning these practices:
Police who are incentivized to find any suspect quickly, rather than the right one carefully; false confessions elicited after improper questioning; exculpatory evidence never turned over; the prosecution of vulnerable, mentally ill, or very young suspects in ways that take advantage of their innocence rather than protecting it; prosecutorial zeal that has far more to do with the pursuit of victories than the pursuit of truth; and a death penalty appeals system that treats this entire screwed-up process of investigation and conviction as both conclusive and unreviewable. [...]

Those who believe that we don’t execute the undeserving in America—or who aren’t too concerned about that possibility anyhow—have an ally in Justice Antonin Scalia.... Scalia, in an unrelated case before the Supreme Court 20 years ago, name-checked McCollum as the reason to continue to impose the death penalty.... Scalia noted that all sorts of cases of truly horrendous murders came before the court, "For example, the case of an 11-year-old girl raped by four men and then killed by stuffing her panties down her throat. How enviable," he wrote, "a quiet death by lethal injection compared with that!" ... Several years after he baited Blackmun over McCollum, Scalia floated the notion that executing even innocents doesn't violate the Constitution.

When McCollum’s own case came before the high court, Scalia voted not to hear it.
posted by scody (110 comments total) 51 users marked this as a favorite
 
Oh lord I was just this moment reading the NYT profile of the (ghastly, terrible, utterly impenitent) guy who sent them to jail in the first place.
posted by poffin boffin at 9:13 AM on September 8, 2014 [4 favorites]


Additionally: As Two Men Go Free, a Dogged Ex-Prosecutor Digs In:
The episode reopened ugly memories of what critics say was a merciless criminal justice system that ran roughshod over helpless people for decades in this poor, sprawling, racially volatile county sometime known as the Great State of Robeson.

At the heart of that is the legacy of Joe Freeman Britt, who earned a spot in “Guinness World Records” and a “60 Minutes” profile for his prowess in sending people to death row. [...]

Of last week’s ruling, which was spurred by a North Carolina Innocence Inquiry Commission investigation and supported by [the current district attorney, Johnson Britt, a younger relative of Joe Britt], he added: "I thought the D.A. just threw up his hands and capitulated, and the judge didn’t have any choice but to do what he did. No question about it, absolutely they are guilty."
posted by scody at 9:14 AM on September 8, 2014 [1 favorite]


I am just not a fan of the human race in general.
posted by poffin boffin at 9:14 AM on September 8, 2014 [12 favorites]


(poffin boffin: jinx!)
posted by scody at 9:14 AM on September 8, 2014


I am just not a fan of the human race in general.

I would guess Scalia would evince the same sentiment, so you two have that in common, I suppose.
posted by Atom Eyes at 9:25 AM on September 8, 2014 [2 favorites]


Scalia is an excellent judicial stylist and administrative lawyer. He's just also an inhumane asshole who would apparently rather be vindicated than just.
posted by jaduncan at 9:29 AM on September 8, 2014 [4 favorites]


People say we're supposed to get more conservative as we age. At least for certain issues, I find my views heading ever more radical/progressive, and the death penalty is among them. I have always been opposed, but I used to have a small, unvoiced feeling that perhaps for some particularly terrible people...

No, never. Not for the worst. Not for the no-doubt-no-really-none. It cannot be framed as any sort of "justice." It is a barbaric and inhumane practice, and we should be deeply ashamed that our nation still implements it.
posted by rtha at 9:30 AM on September 8, 2014 [71 favorites]


Has there been any comment from Scalia on this?
posted by gottabefunky at 9:31 AM on September 8, 2014 [3 favorites]


On Scalia, before mentioning this primitive bloodlust he sanctions (and BTW I'd much rather be murdered by the State than have the WORSE punishment of life in prison), I've always thought his practice of bringing a Bible into the Court was blasphemy in itself. Church and State separation is sacred for the Republic - and how could Justice ever be blind when wielding a supernatural tract, absolutist and exclusive in its claims to truth, in its pocket?

On a political level, if we want change we need to argue not for abolition, as it offends the vengeful sympathies of too many, but indefinite suspension. If one cannot be sure that the process to bring a person to the most final, and extreme punishment possible is sound, then it must be paused until it is so (which of course is never). NC should do this now. The fig leaf of automatic commuting of death sentences and the like can help hasten the end of this injustice, State by State. Otherwise, I just do not see any change. Humans are disappointing animals indeed.
posted by The Salaryman at 9:45 AM on September 8, 2014 [5 favorites]


I used to support the death penalty. Now I don't. It is not because I think the death penalty is inhumane. I think in certain situations it is the right thing to do. For example whomever actually killed this little girl by stuffing her panties down her throat. No, my problem with the death penalty is that there are too many prosecutors and cops who cut corners and we just don't know for a fact who actually commits some of these heinous crimes versus who has been convicted of them. Until we KNOW, we must stop implementing the death penalty. Beyond a reasonable doubt is not a tough enough standard when we cannot trust the the prosecution. Life without parole is probably a harsher penalty anyway.
posted by 724A at 9:48 AM on September 8, 2014 [9 favorites]


People say we're supposed to get more conservative as we age.

It is actually small c conservative to want to avoid killing innocent people. Small c conservatives went extinct at some point in the last 30 years as none have been seen in the wild for a long time.
posted by srboisvert at 9:50 AM on September 8, 2014 [5 favorites]


that's funny, it seems to me that America's got a whole major political party for small-c conservatives.
posted by You Can't Tip a Buick at 9:59 AM on September 8, 2014 [3 favorites]


I hope cases like these getting overturned strengthen the cause for the abolition of the death penalty. I'm not in favor of executions in any context, but you have to be seriously out of touch with basic human ethics if you think it's ever okay to execute people when you know there's an error rate on knowing their guilt.

That said, I have to wonder-- would Henry Lee McCollum and Leon Brown have stood any chance of a future acquittal if they had been sentenced to life without parole?
posted by mcstayinskool at 9:59 AM on September 8, 2014 [1 favorite]


So there may in fact be a seriously bad guy here with the prosecutorial misconduct and overzealousness, but I think that is the wrong place to focus in a discussion of the death penalty. No system is perfect; even when we earnestly try to do the right thing we fuck up royally all the time. Even if everyone involved was on the up and up innocent people would still be put to death in this system.
posted by Colby_Longhorn at 10:02 AM on September 8, 2014 [1 favorite]


In the Birmingham 6 case, perhaps the most famous british miscarriage of justice, Lord Denning one of the most outspoken (and awful) British judges of the last 50 years wrote:

If they won, it would mean that the police were guilty of perjury; that they were guilty of violence and threats; that the confessions were involuntary and improperly admitted in evidence; and that the convictions were erroneous. … That was such an appalling vista that every sensible person would say, “It cannot be right that these actions should go any further.’ and that it would have been good for them to be hanged because "we shouldn't have all these campaigns to get them released"

This is the sort of attitude to power that people like Scalia have, better not to question, better to let the innocent die than face the truth because it might show the system in a bad light. The subservience is what is most appalling. They simply cannot believe a police officer would lie, or a prosecutor would manipulate the evidence - and if one does, so be it, the faith in the system must be maintained.
posted by Another Fine Product From The Nonsense Factory at 10:03 AM on September 8, 2014 [25 favorites]


From the profile of Britt:
Nor is he swayed by the argument that the defendants — with I.Q.’s in the 60s and 50s — were too impaired to appreciate the confessions written by investigators that they signed.

“When we tried those cases, every time they would bring in shrinks to talk about how retarded they were,” he said. “It went on and on and on, blah-blah-blah.”
That totally sounds like a person who should have complete immunity from any legal consequences for this, right? He was just acting in good faith!
posted by Holy Zarquon's Singing Fish at 10:03 AM on September 8, 2014 [21 favorites]


“There is another book, other than the Guinness Book of World Records, that we all have to face,” Mr. Thompson added. “One of the most dreadful words in the capital case, when a person is convicted and sentenced and put to death, and the judge imposes that death sentence, and I’ve heard it said many times, is, ‘God have mercy on your soul; he’s in your custody, bailiff.’ I hope God has mercy on Joe Freeman Britt’s soul.” (From the NYT profile of the original DA)

God would have to be more merciful than I would be. Nearly 50 death penalty convictions with all but a few thrown out on appeal? What a bloodthirsty troll.
posted by TedW at 10:03 AM on September 8, 2014 [4 favorites]


I am in favor of a rehabilitative focus for all crimes, but longer sentences for violent crimes (still with radically improved conditions and therapeutic services). And for heinous crimes and repeat violent crimes- permanent care. I'm not saying "accountability" couldn't be part of rehabilitation, which might not be a pleasant thing to discuss with people who have done horrible things-- but accountability goes both ways.

Society needs to be accountable for how often it is that we have failed those who go on to become criminals long before they ever harm another or learn to commit crime, to survive or flourish- or use hard drugs to cope with the conditions we leave people in which leaves them less bale to think clearly about their actions or the consequence or have healthy cognition/emotion towards others.

And yeah- we need to end the death penalty. Absolutely.

In order for a person to be accountable for doing something wrong, they need to have been capable of doing something better, and known what that something better is. If you look at how many child abuse survivors, learning disabled and academically struggling, and survivors of childhood poverty/adversity/neglect make up the prison population it becomes suspect that such people are any different than anyone else and were simply subject to horrendous conditions that damage cognition, emotional health, and over all development. So how accountable are we willing to be, because holding ill and disabled people "accountable" for the results of their diseases that we refuse to provide support services to manage to begin with, strikes me as an issue for which the real criminals- the people who ought to know and do better- are outside the prisons, not being held accountable at all.
posted by xarnop at 10:06 AM on September 8, 2014 [2 favorites]


You Can't Tip a Buick: “that's funny, it seems to me that America's got a whole major political party for small-c conservatives.”
Indeed. If only we also had one for progressives.

I've made how I feel about the death sentence — and indeed any judicial punishment that cannot be undone — pretty clear. At this point anyone who still supports a punitive rather than rehabilitative judicial system is either willfully ignorant or an inhuman monster who should be ashamed of themselves. You heard me.
posted by ob1quixote at 10:08 AM on September 8, 2014 [12 favorites]


Also:
At the same time, a serial sex offender who lived less than 100 yards from the crime scene — and who, a few weeks after that murder, would kill a teenage girl nearby in strikingly similar circumstances — was never pursued as a suspect.

It should be obvious to all, but those who so readily accept the occasional conviction of an innocent man seem to ignore the fact that the actual guilty party remains free to kill again. Perhaps the most compelling argument for penal reform (to some people, anyway) is that hey, some of those guys are innocent. Let's not be so tough on them.
posted by TedW at 10:10 AM on September 8, 2014 [10 favorites]


A real "pro-life" movement would make this Britt's life a living hell.
posted by Renoroc at 10:12 AM on September 8, 2014


Poor people being bullied to death by rich people...
posted by shnarg at 10:22 AM on September 8, 2014 [2 favorites]


You know, if some sociopath selected, pursued, and murdered over 60 people because the voices told him they were "bad" people, we'd probably advocate putting him in jail.

If he did it ruthlessly while employed in a field like nursing or some caregiver role, some of us might say, maybe that dude's sick in the head. Maybe a little jail time won't stop him. Some of us might go so far as to say, "You know, maybe the death penalty is applicable here."

But apparently, if he's an officer of the court, charged with ensuring justice and protecting society, we just put him in the Guinness Book of Records.
posted by teleri025 at 10:25 AM on September 8, 2014 [25 favorites]


I have a (seriously) non-rhetorical question for people who support the death penalty.

What is the upper limit on the number of executions of innocent people per year that would make you change your mind? There's going to be at least one.
posted by Doublewhiskeycokenoice at 10:27 AM on September 8, 2014 [3 favorites]


It should be obvious to all, but those who so readily accept the occasional conviction of an innocent man seem to ignore the fact that the actual guilty party remains free to kill again.

The guilty party is already serving a life sentence for a similar rape/murder that he committed less than a month later.
posted by Bromius at 10:32 AM on September 8, 2014 [1 favorite]


Scalia is an excellent judicial stylist

Is he really? IANAL, but his style is just angry demagoguery, it appears to me. Memorable and occasionally pithy, sure.
posted by PMdixon at 10:33 AM on September 8, 2014 [2 favorites]


Failure of prosecutors to turn over evidence is a serious issue and needs to result, AT THE VERY LEAST, in suspensions of law licenses for first offense (because a young lawyer can make a mistake once). For a second offense, they should be forbidden from practicing law*, because there is seriously hardly any greater offense a lawyer can make against justice than deliberately withholding evidence they are ethically and legally bound to turn over to the defense in a criminal case. They obviously do not have the moral fitness to practice law. It enrages me that we are members of the same allegedly self-policing bar.

*At the least. Like if they're midconducting up a DUI case or a misdemeanor. If they're engaging in the kind of misconduct that sends someone to prison for 30 years or puts them on death row, there needs to be jail time.

(Prosecutorial misconduct in all forms is prosecuted in less than 2% of known cases and typically results in a slap-on-the-wrist fine.)

An elected chief prosecutor who withholds evidence should be barred from holding ANY elected office in the future, and, if retired, stripped of his pension -- or at least all of that portion of it that dates from the misconduct forward.

Also, from Dahlia Lithwick's article:
"It never fails to astonish me that the same conservatives who argue that every last aspect of big government is irreparably broken and corrupt inevitably see a capital punishment system that is perfect and just. If you genuinely believe that the state can’t even fix a pothole without self-dealing and corruption, how is it possible to imagine that police departments and prosecutors’ offices are beyond suspicion, even though they are subject to immeasurable political pressure to wrap up cases, even when the evidence is shaky and ill-gotten, and even as there are other avenues that have gone unexplored?"
THIS. I just can not even.

I volunteered with the NC Center for Death Penalty Litigation when I was in law school, the people who work there are yeoman and deserve praise, awe, and a lot more funding.
posted by Eyebrows McGee at 10:40 AM on September 8, 2014 [47 favorites]


The guilty party is already serving a life sentence for a similar rape/murder that he committed less than a month later.

Yes, because he remained free to kill again.
posted by zombieflanders at 10:43 AM on September 8, 2014 [15 favorites]


The joke's on you, Doublewhiskeycokenoice: the nice thing about the death penalty is that it works just as well whether the person is guilty or innocent. Either way, the victim is being sacrificed to the idea of justice. This isn't Europe; the Tree of Liberty must be watered from time to time with the blood of patriots. Plus, that the law sometimes condemns innocent people only enhances the deterrent effect of capital punishment. Why, if this is how the law treats innocent people, just think what it will do to the guilty ones! Oh, you don't wanna find out...
posted by flechsig at 11:08 AM on September 8, 2014 [3 favorites]


It should be noted that an "excellent judicial stylist" can take just a little off the top, and can also do shaving and waxing. And even a dye job.

And make the law look faaaabulous.
posted by straw at 11:08 AM on September 8, 2014


On a political level, if we want change we need to argue not for abolition, as it offends the vengeful sympathies of too many, but indefinite suspension.

I disagree. I was part of the movement to abolish the death penalty in Illinois, and the death penalty was indeed eventually abolished there. It's true that there was a moratorium that preceded abolition, but the vast majority of organizations and individuals who called for the moratorium were open about abolition as the ultimate goal.

Additionally, support for the death penalty in the United States has been declining since the 1990s. 18 states and the District of Columbia do not allow it -- with six of those states (CT, IL, MD, NJ, NM, NY) joining those ranks just since 2007.
posted by scody at 11:15 AM on September 8, 2014 [3 favorites]


Is he really? IANAL, but his style is just angry demagoguery, it appears to me. Memorable and occasionally pithy, sure.

He's a lot better in administrative law than when he's dealing with social issues. There is a reason he made the SC. You're right that the quality of his work is declining over time as he becomes more and more uncomfortable with the new social conventions around equality though, the euugh shows through.
posted by jaduncan at 11:20 AM on September 8, 2014 [2 favorites]


I would guess Scalia would evince the same sentiment, so you two have that in common, I suppose.

Yes, you have caught me, we are BFFs.
posted by poffin boffin at 11:26 AM on September 8, 2014 [2 favorites]


From what I have heard from US colleagues and read of his opinions - Scalia is seen as the most "important" jurist sitting on the court today. I obviously don't like his philosophy and think he makes appalling decisions, but he is the conservative on the court whose opinions will still be influential in 50 years.
posted by Another Fine Product From The Nonsense Factory at 11:32 AM on September 8, 2014


he is the conservative on the court whose opinions will still be influential in 50 years.

Is this a subtle way of saying that conservatives are assholes who care only for getting their own way and not for justice, equality, or the law?
posted by Pope Guilty at 11:39 AM on September 8, 2014 [4 favorites]


Joe Britt and similar prosecutors who trumpet their successful death penalty convictions are, in my opinion, a cog in a larger political machine. To whit, even if their positions were appointed, the elected people who appoint them are able to brag about how tough on crime their administration is, thus you should re-elect them. That the criminal justice system tends to convict more people of color than whites is one of the major features of this re-election system. "Look at all the black men I've sent to death row, vote for me!"

Britt was a useful tool because he was a bully and a moron who really believed that everyone was guilty and deserving of the maximum penalty. If he hadn't been a prosecutor, he would have made a great small-town policeman.
posted by Joey Michaels at 11:46 AM on September 8, 2014 [1 favorite]


Not really, he has the combination of incredible intellectual ability and absolute anosognosia that makes him influential. Thomas & Alito just have the latter. He cares deeply about justice and the law (equality is a nebulous, shifty word to brand a lawyer with), he just has a concept of it which is totally alien to me.
posted by Another Fine Product From The Nonsense Factory at 11:50 AM on September 8, 2014


... the elected people who appoint them are able to brag about how tough on crime their administration is, thus you should re-elect them.

In many places in the US the DA is an elected position; thus the DA brags directly to his constituents. As does the sheriff and judges in many places.

Electing every government official may seem democratic, but in action paves the way for tyranny of the majority; or even worse, tyranny of those who control the elections (also often an elected, partisan position).
posted by TedW at 12:03 PM on September 8, 2014


It is actually small c conservative to want to avoid killing innocent people.

No, that's neither liberal nor conservative on our axis; it's just basically human, a statement anyone sane would agree with.
posted by JHarris at 12:12 PM on September 8, 2014 [1 favorite]


What are the details of the Innocence Inquiry's sleuthing, having uncovered this evidence at the police station, after all this time? That was amazing work and the individual(s) who pulled it off should be celebrated. It's remarkable that, given the level of corruption in police and prosecutor, that those crucial physical artifacts were not destroyed.
posted by mmiddle at 12:22 PM on September 8, 2014


So, if I want to be a serial killer without fear of consequences, I should go to law school?
posted by _paegan_ at 12:31 PM on September 8, 2014 [2 favorites]


but he is the conservative on the court whose opinions will still be influential in 50 years.

The consequences of his activity will still be felt in 50 years, that's for sure. Not unlike Chernobyl.
posted by FatherDagon at 12:39 PM on September 8, 2014 [2 favorites]


McKesky v. Kemp

Here we have the Supreme Court straight-up admitting that the death penalty is racist, but racism doesn't constitute cruel and unusual punishment or deprive people of their due process rights so states can do it anyway. If you go on vacation to Europe and wonder why the locals treat you barely concealed contempt, this has a lot to do with it.

And while the Supreme Court says you can't execute the mentally disabled. Well...you can see for yourself.
posted by Doublewhiskeycokenoice at 1:07 PM on September 8, 2014 [1 favorite]


People say we're supposed to get more conservative as we age.

Which people? In my experience, people get more lackadaisical as they age (so long as no one's going after their money or personal safety). Go to any large family and ask the youngest and the oldest child how they remember their parents' rules setting.
posted by IndigoJones at 1:20 PM on September 8, 2014 [1 favorite]


Politically conservative. It's a cultural trope that young hippie radicals turn into Republicans as they age and their financial portfolios grow. Mind you, I'm not saying it's true, just that it seems (to me, and I don't think I'm the only one) that's heard such a thing.

The thing about parents getting more lax with each kid I thought was about parental exhaustion (and experience), not political or cultural conservatism.
posted by rtha at 1:24 PM on September 8, 2014 [2 favorites]


McKesky v. Kemp

After his retirement, Justice Powell (who wrote the majority opinion in McKesky) said that he regretted his vote in that case, and that he had become opposed to the death penalty. His reasoning, according to his biographer, is that "it serves no useful purpose" and that the state's inability to carry out the sentence "brings discredit on the whole legal system."

A friend of mine who is a public defender said that Powell at some point admitted to simply not understanding the statistics, but I cannot find anything online to substantiate that.
posted by compartment at 1:40 PM on September 8, 2014


So, if I want to be a serial killer without fear of consequences, I should go to law school?

or Robeson County
posted by thelonius at 2:17 PM on September 8, 2014


For as much a conservatives (using the term here in the normal sense) seem to hate the government at times, they have a deep and abiding need to maintain the system. The hate is generally for governmental programs that seek to disrupt the status quo (raise people out of poverty, give a voice to the disenfranchised, etc.) In a way it boils down to the just world fallacy.

Viewing this through that lens, it's not that it's preferable that ten innocent men be convicted before one guilty man is found innocent, but instead that ten innocent men be convicted before the system is questioned about its fundamentals. Each person is not important for who they are, but instead for the part they form in society. If they cease to occupy this place, they are a threat to the system and need to be removed. The fact that the two people in question were innocent is irrelevant. They were found guilty in a court of law and that means that, for things to keep working, they must be put to death. I see it as related to the fact that there is a push back (which is related to racism, but that, being part of the system, is normalized) against holding cops accountable for their misbehavior.

I suppose for all the vaunted individualism that I hear about, this comes down to the needs of the group being more important than the needs of the individual. Or, what another fine product from the nonsense factory said above.
posted by Hactar at 3:33 PM on September 8, 2014 [1 favorite]


The hate is generally for governmental programs that seek to disrupt the status quo (raise people out of poverty, give a voice to the disenfranchised, etc.)

Nah it's not even that. They love change if it helps them exclusively. There's no consistency. There is no moral bottom to the social conservatives in America. That's actually something they have in common with their plutocratic party mates—both champion deepest vilest selfishness dressed up as righteous virtue.
posted by fleacircus at 4:24 PM on September 8, 2014 [2 favorites]


It's unclear to my why the Slate article villifies Scalia. Scalia's reasons for discussing McCollum, and for voting against cert in that case (and it should be noted that all the justices save for one voted against cert--Scalia was not alone) have nothing to do with McCollum's guilt or innocence. Those cases were about whether the death penalty, as administered is Constitutional--that is, they were questions of whether a law should be struck down as contrary to the Constitution, and had nothing to do with the actual guilt or innocence of the accused.

E.g., in Callins, Scalia states, "Convictions in opposition to the death penalty are often passionate and deeply held. That would be no excuse for reading them into a Constitution that does not contain them." He is making a Constitutional argument (that the Due Process clause, which explicitly names 'life,' does not forbid the death penalty), and not an argument about the actual guild of the accused.
posted by ayedub at 7:24 PM on September 8, 2014


If someone had told me ten years ago that we'd legalize pot and sanction gay marriage long before we'd even consider abolition of the death penalty, I would have thought they were hopelessly out of touch with reality.
posted by Slarty Bartfast at 9:06 PM on September 8, 2014 [3 favorites]


Viewing this through that lens, it's not that it's preferable that ten innocent men be convicted before one guilty man is found innocent, but instead that ten innocent men be convicted before the system is questioned about its fundamentals.

I get that some criticism is about needing toe the "tough on crime" line. That if we question the justice system, it weakens the threat of deterrence. Here's what I don't understand, and where it seems like there should be common ground. Why is it that citizens, acting through legal channels to point out the weaknesses and inequalities of the system and working to weed those problems out -- why isn't that strengthening the legitimacy of the system? I, and probably everyone, don't want to see bad guys let off. But the reason the system is questioned about its fundamentals is that black men and the mentally disabled all seem to be treated the same, regardless of the severity of their crime, or whether they even committed a crime. The current system isn't tough on crime at all, the current system is simply tough on those that can't defend themselves and hold a lower position in society. It seems to me the progressive position on the death penalty and criminal justice is to *actually* get tough on crime and stop wasting time on the wrong people.
posted by Slarty Bartfast at 9:49 PM on September 8, 2014 [2 favorites]


"Those who believe that we don’t execute the undeserving in America—or who aren’t too concerned about that possibility anyhow—have an ally in Justice Antonin Scalia..."

This is overcharitable, isn't it? Isn't Scalia's program explicitly to permit the execution of the undeserving, as an intended effect? Pretty sure he thinks state power rests on this principle. At least as far as I can tell, that's the actual heart and objective of the American right's successful efforts to undo civil rights; in this formulation "liberty" actually rests on the view that state power transcends the individual and it is saluatary to that power to enforce that power via methods that explicitly include fear; random, unattributable, and unaccountable excercise of all state power' and so forth.

more or less "our main weapon is fear, fear and a fanatical devotion to the state," at least a far as i can make it out. this explanation provides a way to understand the bulldog insistence on making it impossible to impose accountability on the police, prosecutors, etc.
posted by mwhybark at 10:16 PM on September 8, 2014


There is no moral bottom to the social conservatives in America. That's actually something they have in common with their plutocratic party mates—both champion deepest vilest selfishness dressed up as righteous virtue.

Or as John Kenneth Galbraith put it:

The modern conservative is engaged in one of man's oldest exercises in moral philosophy; that is, the search for a superior moral justification for selfishness.

(I trot that out for my conservative friends every chance I get)
posted by TedW at 5:28 AM on September 9, 2014 [2 favorites]


What is the upper limit on the number of executions of innocent people per year that would make you change your mind? There's going to be at least one.

It would depend on how many people we were executing on the whole, and if they were wholly innocent, or innocent only of the crimes that they were charged with that carried the death penalty.
posted by corb at 11:17 AM on September 9, 2014 [1 favorite]


It would depend on how many people we were executing on the whole, and if they were wholly innocent, or innocent only of the crimes that they were charged with that carried the death penalty.

Okay, I'll bite. There have been 1,386 executions in the U.S. since 1976, for an average of 36.5 a year. However, in the first 8 years after the death penalty's reinstatement it was used quite rarely -- there were only 11 total between 1976 and 1983, which then jumped to 21 in 1984 alone, at which point numbers of executions started climbing steadily (ultimately peaking in 1999 with 98). So let's round 36.5 up to 40. This happens to be right in line with the total number of executions last year (39).

The most current research suggests that at least 4% of people on Death Row are factually innocent of the crime for which they were convicted. There are roughly 3000 people currently on Death Row, which would mean about 120 of them are innocent. (It also means that of the 1,386 people who have been executed, at least 55 of them have been innocent.) In a year with 40 executions, 1.6 would be innocent; since we can only execute whole people, let's say that we are executing either 1 or 2 innocent people a year.

Okay, so this is where our scenario stands so far: 40 executions a year; 1 or 2 of them are factually innocent of the crimes for which they were convicted and sentenced to death.

Now, onto your "wholly innocent" caveat. First, let me say that I find this to be a pretty transparent attempt to -- excuse the ironic metaphor -- play a rhetorical Get Out Of Jail Free card in order to sidestep the question the morality (or lack thereof) implicit in the acceptance of the execution of innocent people by implying that some of those people might be guilty of other (capital) crimes, ergo executing innocent people might not always be a miscarriage of justice after all.

With that out of the way, I'll continue to play along. Including Henry McCollum and Leon Brown, since 1973, there have been 146 people sentenced to death who were later wholly exonerated. Of those 146, on a quick scan it appears that about 10 of them -- so about 6% -- remained imprisoned (but not on Death Row) for at least some period for other crimes. Purely for the sake of argument, let's say that half of those other 10 crimes were murders for which they are factually guilty. (Note that this is a number that I think is actually too high, but absent the time to research each of those ten cases, I'm going to go with a number that's seems more favorable to your argument than mine.) This would mean, hypothetically, that 3% (i.e., one out of every 33) of the people ultimately exonerated for being wrongfully convicted are factually guilty of another murder.

So there we have it: 40 executions, of which 1 or 2 are innocent, every year. It would take, on average, 22 years of this to be assured of executing someone who was not, in your words, "wholly innocent."

Is that acceptable to you or not?
posted by scody at 12:44 PM on September 9, 2014 [9 favorites]


I think your idea of what I mean by wholly innocent is slightly different than mine (for example, it would not require currently capital crimes, as I think some crimes are no longer capital that should be), but yes. One wholly innocent person executed in 22 years is completely acceptable to me in exchange for the ability to execute some of the worst offenders.
posted by corb at 1:16 PM on September 9, 2014


Actually, just to make it a little easier - I think one innocent person executed a year would also be acceptable to me. I have no illusions about the infallibility of our justice system.
posted by corb at 1:18 PM on September 9, 2014


I don't understand that at all. It horrifies me.
posted by rtha at 1:34 PM on September 9, 2014 [9 favorites]


One wholly innocent person executed in 22 years is completely acceptable to me in exchange for the ability to execute some of the worst offenders.

Even if we granted the death penalty as morally justified (I do not), that is reprehensible, whether it's 1 a year or 1 in 22 years.
posted by JHarris at 1:35 PM on September 9, 2014 [4 favorites]


I fundamentally do not understand the opposite position. Like, I cannot conceive of how you can't have an acceptable level of death for something. We have acceptable levels of contamination in foods, acceptable levels of toxins, acceptable levels of risk for everything. I was a soldier. The policy decisions of other people meant that there were decisions about acceptable levels of death in other places in order to enforce policy goals. There are decisions about acceptable levels of death in medicine. Why are acceptable levels of death for prisoners beyond the pale? I'm not trying to rumble, I would genuinely like to understand where you are coming from.
posted by corb at 1:40 PM on September 9, 2014 [1 favorite]


One wholly innocent person executed in 22 years is completely acceptable to me in exchange for the ability to execute some of the worst offenders.

Since we're pretty well into consequentialism/CB analysis land now: what are the gains from being to execute those offenders that you consider to be on the other side of that exchange?
posted by PMdixon at 1:48 PM on September 9, 2014


Like, I cannot conceive of how you can't have an acceptable level of death for something.

You don't have to start from the premise that the death penalty is necessary or required. That's the most obvious way to avoid trying to figure out how many innocent people can dance on death row before it becomes an unacceptable number.

You've spoken very strongly in other threads against state-sanction coercion and violence, and against causing (small) harm to one (small) group of people for the greater good. But knowing you will kill an innocent person is okay? Yeah. Don't get it at all.
posted by rtha at 1:56 PM on September 9, 2014 [9 favorites]


I fundamentally do not understand the opposite position. Like, I cannot conceive of how you can't have an acceptable level of death for something. We have acceptable levels of contamination in foods, acceptable levels of toxins, acceptable levels of risk for everything. I was a soldier. The policy decisions of other people meant that there were decisions about acceptable levels of death in other places in order to enforce policy goals. There are decisions about acceptable levels of death in medicine. Why are acceptable levels of death for prisoners beyond the pale? I'm not trying to rumble, I would genuinely like to understand where you are coming from.

We have acceptable levels for those things because at some point, the costs of doing them begin to outweigh the tangible benefits they provide. At some point--although for a number of reasons I'm willing to bet that point vastly differs between us--the attempts to remove contamination or toxins would render what they affect it either unavailable at levels that cause no significant harm. Medicine has acceptable levels of death because the effort at maintaining or resuscitating the patients don't contribute to improving their health (or in the case of public health, the population at large). But in the case of the death penalty, it does nothing to dissuade the crimes to which it applies any more than other forms of punishment, it is a conscious active decision to be made, and it is unique in it's inability to be reversed.

And as an aside: as rtha points out, you have expressed vociferous concerns over state monopolies on force and justice, as well as issues like voting fraud/suppression that have both infinitesimal fractions of offenders and where discriminatory intent has been shown. It boggles the mind that you can make the "acceptable loss" argument here but decry those at the same time.
posted by zombieflanders at 2:00 PM on September 9, 2014 [2 favorites]


Zombieflanders and rtha - in an ideal world, I have strong concerns over state monopolies on force and justice. But in the real world, where I will go to jail forever if I take justice into my own hands, I have to work within the context of the imperfect world that already exists.
posted by corb at 2:03 PM on September 9, 2014


Also, because I realized I never post this - some of the benefits are nixed out by the way people handle death row - just because I think executions have value doesn't mean that I think they are being done the best way that they can - but less expense (if you eliminate the extra weird costs people create for death row that are not necessary), guaranteed lack of recidivism, victim's family satisfaction, and if you believe in it, retributive justice. I'm not actually sure it makes people commit crimes less often - I think people would equally not like to go to jail for 20 years as they would like to not go to jail for life - but the side benefits I think can outweigh the negatives (again, in the imperfect world we live in where we can't banish people for life)
posted by corb at 2:06 PM on September 9, 2014


"I think one innocent person executed a year would also be acceptable to me."

So to paraphrase Abraham Lincoln, does that mean you're volunteering to be it?

"(if you eliminate the extra weird costs people create for death row that are not necessary),"

We call those Due Process.
posted by Eyebrows McGee at 2:27 PM on September 9, 2014 [13 favorites]


One wholly innocent person executed in 22 years is completely acceptable to me in exchange for the ability to execute some of the worst offenders.

That's the opposite of what I wrote; I don't know if you misunderstood, mistyped, or are intentionally misrepresenting what I said. In the scenario I posited, a minimum of 1 or 2 wholly innocent people would have to be executed every year for 22 years in order to "reach" (for lack of a better term) someone who was NOT wholly innocent. In other words, you'd have to execute 33 innocent people in order to be sure that one of them was guilty.

I think one innocent person executed a year would also be acceptable to me. I have no illusions about the infallibility of our justice system.

I appreciate (and I am not being sarcastic) your honesty in being so straightforward about this, though I am genuinely unclear, as others point out, how you can possibly square this with your libertarianism.

I would also be curious as to how deeply you hold this conviction if this were not just a matter of statistics -- that is, would you find it acceptable if one of your loved ones was wrongfully convicted and sentenced to death? After all, you are evidently at peace with the present degree of fallibility inherent in the justice system; it should therefore be a small matter for the state to put your husband or brother to death for a crime he didn't commit if it would enable the state to execute factually guilty murderers, too.

There are decisions about acceptable levels of death in medicine. Why are acceptable levels of death for prisoners beyond the pale?

"Acceptable levels of death in medicine" -- first off, define your terms. Otherwise I don't know if you are talking about acceptable numbers of people dying unexpectedly from surgery (e.g., Joan Rivers) or acceptable numbers of people who don't respond to particular treatments (e.g., survival rates for different cancers at different stages) or something else entirely.

In any case, the comparison between someone accidentally dying unexpectedly on the operating table (or a cancer patient not responding to chemo, or whatever it is you mean) and someone intentionally put to death by the state for a crime they did not commit is logically specious (and that's about the politest thing I can call it). Accidentally dying from surgery, for example, is a result of either unforeseen consequences and/or individual human error without intent or malice. Being wrongfully convicted and executed is at the very best an accumulation of systemic errors on the part of the state, from police to prosecutor to judge to jury -- and this is not even factoring in incompetence or malice/intent (e.g., racism) into the equation, which have been shown time and time again to play significant roles in wrongful convictions.

Therefore, the more accurate comparison for you to make would be to start from the supposition that there are acceptable levels of death in medicine by doctors or researchers purposely killing their patients or research subjects in order to develop techniques or treatments to save other lives.

Except, of course, that there is no such acceptable level of such a thing at all, because that would be murder.
posted by scody at 2:29 PM on September 9, 2014 [4 favorites]


In the scenario I posited, a minimum of 1 or 2 wholly innocent people would have to be executed every year for 22 years in order to "reach" (for lack of a better term) someone who was NOT wholly innocent. In other words, you'd have to execute 33 innocent people in order to be sure that one of them was guilty.

I do not understand what you are saying - if you're saying that 4% are likely innocent, then 33 innocent people to make sure of one guilty one seems incorrect. Could you break it down Barney-style?

would you find it acceptable if one of your loved ones was wrongfully convicted and sentenced to death? After all, you are evidently at peace with the present degree of fallibility inherent in the justice system; it should therefore be a small matter for the state to put your husband or brother to death for a crime he didn't commit if it would enable the state to execute factually guilty murderers, too.

I would not find the policy fundamentally any more unjust. That doesn't mean I wouldn't fight like hell in order to save my husband or brother or son - quite possibly using extra-legal means - because my commitment to the ones I love is stronger than my commitment to the law. But I would accept that the fact that my loved one was the one chosen would not make it more or less acceptable as a level of risk. If that makes sense? I'm not sure I'm explaining it well. Ie, I wouldn't think the law would need to be changed, I would just try to make sure my loved one was spared the consequences of it.
posted by corb at 2:37 PM on September 9, 2014 [1 favorite]


"Ie, I wouldn't think the law would need to be changed, I would just try to make sure my loved one was spared the consequences of it."

Okay, but this position is fundamentally contrary to any claim to equality, justice, or fairness. "Laws don't apply to me" or "Unjust laws are fine as long as they don't hurt me" or "Rules are for other people" are fundamentally immoral claims, by 99% of definitions of morality. Are you truly saying that you believe one set of rules should apply to you and your family, and a different set of rules to everyone else?

And if so, that really honestly changes my view of all the claims you've put forward in the past about politics in the US, because I assumed we were both arguing from the same (Constitutionally-protected) place of "equal justice under law," but what you seem to be saying is that even that basic, fundamental American idea "equal justice under law" is not one you agree with.
posted by Eyebrows McGee at 3:05 PM on September 9, 2014 [10 favorites]


Ie, I wouldn't think the law would need to be changed, I would just try to make sure my loved one was spared the consequences of it.

That is the most hopeless and somehow also most immoral thing I have heard in a long, long, time.

The "real world" you claim you live in (but zombieflanders and I don't) is one where what is, is, and cannot be changed - it must be accepted without question as it exists. With that given, of course you can then place yourself as the heroic rescuer of your unjustly accused loved one, all while claiming that allowing the state to knowingly murder some number of innocent people via the death penalty is acceptable.

This is part of a comment of yours I've never quite forgotten: It is morally justifiable to personally choose to accept a sacrifice or harm, but it is not, by my lights, acceptable to essentially play God with other people.

I don't see how you can reconcile all this. It's not okay to play God with other people...except when it comes to the death penalty. Can't make them pony up money for health insurance, but can force them into a system where they can be killed by the state for crimes they did not commit.
posted by rtha at 3:32 PM on September 9, 2014 [9 favorites]


I do not understand what you are saying - if you're saying that 4% are likely innocent, then 33 innocent people to make sure of one guilty one seems incorrect. Could you break it down Barney-style?

Sorry, maybe I was unclear. Here's my attempt at Barney style (as opposed to Barneys style):

There have been 1,386 executions in the U.S. since 1976, for an average of 36.5 a year. (1976 is relevant because that's the year capital punishment was reinstated in the U.S. after the Supreme Court put a halt to it in 1972. So everything post-1972 is considered the modern era of capital punishment in the U.S.)

I am rounding 36.5 executions per year up to 40 executions a year for the purposes of this scenario (nice round number, plus it's right in line with the number of executions in the past few years).

The most recent studies estimate that at least 4% of prisoners on death row are innocent. By this reckoning, it would mean of the 3000 people currently on death row, a minimum 120 of them are innocent of the crimes for which they have been sentenced to death. Therefore, it would mean that in our average year of 40 people being put to death, at a minimum 1 or 2 of those people will be innocent.
Aside: now, to me, this is where the argument ends -- that is, my tolerance for innocent people being executed is literally zero. This is one of the reasons (though not the only one) that I am against the death penalty in all cases, including prisoners that are 100% factually guilty -- not because I think they might actually be innocent and not because I even feel necessarily feel sorry for them, but because I don't believe the state should have the power to decide which prisoners live and which prisoners die, for any reason. I'm happy -- genuinely, it's fine with me -- to have this broader conversation another time, but for purposes of Barneying, I'll leave it at that for now.
Okay, so we've got 40 people being executed annually, with a minimum of 1 or 2 of them factually innocent.

Now, your comment raised the question of whether some of those innocent people might be guilty of other crimes. For the purposes of this scenario, I am concerned only with murder (I understand you believe that there should actually be more capital crimes than there presently are, but I am going by what is a capital crime in the post-1972 era).

So I looked at the biographies of the 146 former death row inmates who have been exonerated since 1972. (Have you read any of those bios? I would suggest it.) A quick-ish scan of those biographies revealed that about 10 of them remained imprisoned for other unrelated crimes for at least some period following their exoneration. These other crimes were not spelled out, and so for the purposes of the argument, I said I would assume that half of them were murder.

That means of 146 people exonerated, 10 of them still remained imprisoned for other crimes, including 5 of them for murder. Therefore, for the purposes of this argument, that means that hypothetically, 3% (5/146) of the innocent were still factually guilty of a different murder than the one for which they were wrongfully convicted. 3% = 1 in 33.

Now, let's return to our 40 executions a year, with 1 or 2 of those people factually innocent of the crimes for which they are put to death. Over the course of a decade, that means we would execute 400 people, with 10-20 of them being innocent. Over two decades, we would execute 800, with 20-40 of them being innocent.

So: if 3% of those innocent people who are being executed are factually guilty of a different crime, then it would require the state to execute at least 33 people innocent of the crimes for which they were convicted in order to be mathematically assured that one of those people was guilty of a different crime considered worthy of execution. This would take, on average, about 22 years to accomplish.

That is the level of state power you are defending.
posted by scody at 3:44 PM on September 9, 2014 [6 favorites]


Thanks, scody! I sincerely appreciate that explanation, it really helped me understand what you were talking about. I disagree with you, but that helps me understand the math/what you were saying a lot. It was not my intention to misunderstand or misparaphrase you.

I don't see how you can reconcile all this. It's not okay to play God with other people...except when it comes to the death penalty. Can't make them pony up money for health insurance, but can force them into a system where they can be killed by the state for crimes they did not commit.

I think it might help - both you, and potentially Empress - understand if I explain that I both already consider that we are living under an immoral system, and I have no hope of ever living under a moral system. I do not think I can persuade a majority of the population of the USA to my views, and I think that even if I could persuade a certain amount of them to my views, the state, as personified by the National Guard or police, would come and murder me and anyone who declared independence from it. I do not think there is any morally defensible way to achieve the world I would like to see in my lifetime, even if I work without fail every day and live for a hundred years.

With that in mind, I need to accept that many of the things in the world I live in are going to be morally offensive to me. Some of them are going to be staggeringly offensive to me. I can either decide to be completely apart from the world, not even commenting on it, or I can try to ensure that things are the least bad that they can be and advocate for the least bad that I think I can accomplish with my every day for a hundred years. And sometimes that requires moral compromises. Often it requires moral compromises, where you look at your two clashing morals and the practical need and decide what you can live with. Sometimes you must give up one moral to follow a higher one. The calculus of morals is not simple.*

I assumed we were both arguing from the same (Constitutionally-protected) place of "equal justice under law," but what you seem to be saying is that even that basic, fundamental American idea "equal justice under law" is not one you agree with.

Equal justice under law is not equality of outcome. It simply means that the law, impartially, will look at us each the same. It does not mean that you blindly accept what the law decrees, simply because it is the law. It does not mean you refuse to accept extra legal options. It means you do not support the law, as a matter of policy, playing favorites on a systematic scale.

I mean, honestly, would you really abide by an unjust law that would harm the ones you love? Are you telling me that if your husband or child or mother was wrongly (or even rightly) accused of murder, you wouldn't shelter them? That you would turn them over to the hangman?



* To quote fictional Elim Garak, "if your conscience is bothering you, you should soothe it with the knowledge that you may have just saved the entire Alpha Quadrant - and all it cost was the life of one Romulan senator, one criminal… and the self-respect of one Starfleet officer. I don’t know about you, but I call that - a bargain.”
posted by corb at 4:23 PM on September 9, 2014 [1 favorite]


I mean, honestly, would you really abide by an unjust law that would harm the ones you love? Are you telling me that if your husband or child or mother was wrongly (or even rightly) accused of murder, you wouldn't shelter them? That you would turn them over to the hangman?

I'm confused as to how you can ascribe this point of view to those of us arguing against the death penalty. It should be clear that not only would we defend/protect/shelter a loved one being harmed by an unjust law, we would also advocate for the abolition of the unjust law itself. Does that not make sense? (Again, not being sarcastic, but not sure if it comes off on screen that way.) And are you saying that while you would defend/protect/shelter your loved one against an unjust law, you wouldn't advocate for that law's abolition?
posted by scody at 4:30 PM on September 9, 2014 [6 favorites]


It should be clear that not only would we defend/protect/shelter a loved one being harmed by an unjust law, we would also advocate for the abolition of the unjust law itself.

I'm sorry, let me make that a little clearer to answer. Would you support the enforcement of what you believed to be a just, or relatively just, or necessary law, even against members of your own family? Even if it meant that it would destroy your family?

I suppose I just don't get the concept of "If you would save your family from it, you don't believe in it," because one of the things as I understand family is that you will break many rules for them and allow them to do things that you would not allow others to do.
posted by corb at 4:36 PM on September 9, 2014 [1 favorite]


Would you support the enforcement of what you believed to be a just, or relatively just, or necessary law, even against members of your own family? Even if it meant that it would destroy your family?

Is my family member guilty or innocent of the crime being punished under said law?

If he is guilty and I accept that the law is just, then yes, I would accept the enforcement of the law. I literally don't know what you mean by "destroy my family" as a consequence. Would it mean my partner and I would get divorced? (We aren't married, but let's pretend.) Would it mean I would struggle financially without his income? Would I be sad and angry and hurt? Very well, then I would get a divorce and struggle financially and be sad and angry and hurt. I have dealt with all of those things before; I could do it again. I don't actually believe it would destroy me or my family.

If he is not guilty, then whether the law itself is just is irrelevant insofar as I would shelter/defend/advocate for him. That is, being wrongfully convicted (and wrongfully punished) is always unjust, regardless of whether the law itself is just or unjust.

So that means if my partner was wrongfully convicted under a just law, I would advocate for him without attempting to overturn the law. However, if he was wrongfully convicted under an unjust law, I would advocate for him and advocate for the abolition of the law.

I suppose I just don't get the concept of "If you would save your family from it, you don't believe in it,"

And I don't get the concept of how you would save a loved one from being executed for a crime they didn't commit while still appearing to be absolutely unconcerned about anyone who is not your family member being executed for a crime they did not commit. That is, you are fine with innocent people being put to death up until the point you know and care about them yourself. It is impossible for me to compute that, because it seems predicated on such a fundamental lack of empathy for all other human beings outside your immediate circle (which necessarily manifests as an exceptionally a high tolerance, if not outright disregard, for the suffering of others) that I find entirely immoral and indefensible.
posted by scody at 5:12 PM on September 9, 2014 [7 favorites]


I...don't understand you, and I say that with all sincerity. I can't conceive of turning a loved one over to the police, even if they were guilty, except under very, very few circumstances. I do not understand how you can. I'm not going to say anything about your empathy, because I really don't know what that says about you or why you would feel that way. I know that it would seem to me heartless, but I have faith that you believe yourself to be a compassionate person and I have no reason to suspect that you are not, but I just really can't grok it. I could say it seems "immoral and indefensible", but I'm going to assume that you have a good reason, and just ask why it works that way for you.

But for me, it's not about whether my family member is innocent or guilty - I would defend them equally as much in both circumstances. You just don't betray your familiy members. It's a fundamental core moral for me.
posted by corb at 5:16 PM on September 9, 2014


I can't conceive of turning a loved one over to the police, even if they were guilty, except under very, very few circumstances.

Now you're changing the terms of your question in a way that is transparently self-serving and intellectually dishonest. You asked me if I would "support the enforcement of... a just, or relatively just, or necessary law." You didn't ask me if I would turn my partner over to the police, and you didn't ask if I would betray my family, so don't you dare ascribe such loathsome actions and qualities to me in order to try to score a rhetorical point.

Given that we've managed to have a pretty civil and informative exchange, I am struggling to contain my shock and anger that you would make such a contemptible presumption about me. I would never turn anyone over to the police (because I don't actually trust the police under pretty much any circumstances), and if a loved one was accused of a crime, I would move heaven and earth to make sure they had the best legal defense available, whether they were guilty or not, because I believe passionately in the 6th Amendment.

I also believe passionately in the 8th Amendment, which is more than I can say for anyone who would blithely accept the execution of innocent people "in exchange for the ability to execute some of the worst offenders."

I'm done here.
posted by scody at 5:38 PM on September 9, 2014 [18 favorites]


John Rawls called it the "Veil of Ignorance" where you don't know what your "starting position" is. Lots of people advocate for laws that benefit them because of their particular life circumstances; Rawls wants you to imagine that you are operating behind a veil of ignorance where you have NO IDEA what your starting position is and decide from there if the laws are just or unjust. If you were the poorest man in America, would this be a just law? If you were the richest? If you were a serial killer, is this just? If you were innocent but wrongly arrested?

So, if you know that this law of executing innocent people to protect the greater populace would be the law, and that you would have no power to affect it when you or your family were chosen as the ones to be executed, would you still accede to that as a legitimate law? If you knew that the families of serial murderers would ALSO use all legal and extralegal methods to get their relatives out of prison and off death row, would you still concede that was a legitimate tactic? The basic idea is, everyone (as per Kant) will do and have the right to do EXACTLY WHAT YOU DO. So if you would spring your husband from prison, is it just, fair, and moral for a murderer's spouse to spring their husband from prison? Is it efficient? Is it equitable? Is it a system you want to live under?

Any privilege you claim to yourself must be extended to everyone else. You say that you object to your family members being executed when they are, in fact, innocent -- but you don't extend that to others. What is your rationale?

It is one thing to accept fallible reality -- I accept that the justice system will always be flawed -- but it is another thing to say "therefore innocent people should die." BECAUSE I think the justice system is flawed, I don't think we should make irreversible decisions in it!

But still, I maintain, the American ideal is "Equal justice under law" and your claims that "my family is greater than the law" is invalid under that claim, and throws into question your entire posting history where you make arguments about politics and law. I don't understand how you can be in favor of America but against equal justice. I just don't.
posted by Eyebrows McGee at 5:47 PM on September 9, 2014 [11 favorites]


Eyebrows, I don't know if you're misunderstanding me. I'm not asking or suggesting that the law should extend me or my family any privileges. The law, as an impartial set of rules, should be blind.

But also, yes, I love my family more than I love justice. I love my family more than I love life. I love my daughter more than I love my soul or hope of heaven. I love her more than I love myself or any principle I could possibly hold. And there is nothing I would not do if necessary to preserve her life, even if I had to kill myself afterwards because I could not live with what I had done.

That doesn't mean I have no principles. It doesn't mean I don't believe in justice. But yes, I would burn the world to buy her one more year and count it worth the cost, no matter how damned I would be.
posted by corb at 6:18 PM on September 9, 2014


You just don't betray your familiy members. It's a fundamental core moral for me.

This is an utter horror. You willingly and openly concede that you're fine with other peoples' family members being put to death even if they're innocent because you think the death penalty is fine (you'd even add crimes to it), but betraying your own family members even if they're guilty is beyond the pale. And you expect people to take you seriously, and to respect this.

You concede the system is corrupt, but because (you say) there can be no hope of an moral system, it's fine for you to participate in its further corruption, especially if you're spending other peoples' lives. That is vile.
posted by rtha at 9:03 PM on September 9, 2014 [30 favorites]


If my mother committed murder, or was unjustly accused of the same, GOOD NEWS! we abolished the death penalty in my state, a cause in which I was personally active, thus rendering the justice system a little more just, moral, and fair, and giving me many years to argue for my mother's innocence or commutation. Because my state NO LONGER EXECUTES THE INNOCENT. (BTW, we put 13 people to death and freed 13 people from death row as TOTALLY INNOCENT of their crimes and in most cases convicted via rampant corruption between reinstatement in 1976 and abolition about 30 years later. The rate of conviction of innocents for capital crimes was FIFTY PERCENT.)

Also, I took an oath not to hide or conspire in a crime and to preserve and uphold the law, even if it was a family member who broke it, as you must have, if you were really a soldier. Was that oath just meaningless words to you? Was it a lie? That is what you're saying here. You have no intention of upholding the law or protecting the Constitution, and do not believe in equal justice under law but rather sacrifice of lesser people to the machinery of the state. I do not like to Godwin threads but that is crazy Stalinist.
posted by Eyebrows McGee at 9:35 PM on September 9, 2014 [15 favorites]


I'm sorry, 12 were executed and 13 found totally innocent, so a slight majority were innocent of their alleged crimes before abolition in my state.
posted by Eyebrows McGee at 9:43 PM on September 9, 2014


I would burn the world to buy her one more year and count it worth the cost

You should cut to the chase, given the context. You would watch an innocent person be murdered for a crime they did not commit, knowing exactly what that would do to the mother of that person. I'm not religious, so I don't think you're losing anything wrt heaven. I will however say your ethics completely suck.
posted by jaduncan at 10:43 PM on September 9, 2014 [9 favorites]


Still, you gotta love how she planted the stake with "acceptable loss" and then went on to quantify that lying to protect family members could be a direct but justifiable cause of said loss of the innocent.
posted by Invisible Green Time-Lapse Peloton at 11:45 PM on September 9, 2014 [3 favorites]


"That doesn't mean I have no principles. It doesn't mean I don't believe in justice. But yes, I would burn the world to buy her one more year and count it worth the cost, no matter how damned I would be."

So, I think you would be well served by taking a class where you have to read the Leviathan. It's Thomas Hobbes' masterpiece, and is all about the justification for state power, specifically royal power.

In it, he starts by establishing something that you've espoused many times: individual rights. He establishes them largely by imagining a state of nature where everyone is governed only by their own passions. In this example, that would be your family.

But he recognizes something: This is somewhere that is governed by those most able to force their wills upon others. When each are bound only by their passions, they exist in a state of war with each other.

He recognizes something else: This would not be a very nice place to live. The strong are those most able to force their wills on others, but the smart and the fast and the clever can still make a strong man miserable. People can't be counted on to be good, but they can be counted on to be afraid of a violent death.

Hobbes had just seen England riven with civil war, barely escaped it, then saw the Restoration after the Protectorate collapsed. Hobbes reasoned that the only guarantee against bloodshed and anarchy was a strong sovereign.

That sovereign can make laws as he sees fit on the justification for keeping the majority from violent death. This includes prescribing death for his subjects, but that's the one place where Hobbes says that a man can't "alienate" his right to self defense.

When you say you would burn the world for your family, you justify everyone else doing so to your family. You've complained about losing family to revolutionaries and about the callous MeFite reaction to that, but that's selfish and empty by your own calculus. They died because revolutionaries decided that their families' lives trumped your families' lives. You endorsed the murder of innocent people so you can have your jollies as "retribution." I can't give specifics to how your family members were murdered, but, assuming they were, I'm reasonably safe in assuming it was because of "retribution" for something they were perceived to have done. If the innocence of people on death row doesn't matter, neither does the innocence of a few capitalists on the way to a socialist revolution.

Hopefully you've been able to follow through to the reductio ad absurdum.

I'm not a legalist, I'm not a formalist. I don't think that justice comes from within the law. But to take radical individualism to political solipsism gives you no defense against any cruelty, any crime. In the state of nature, the life of man is solitary, poor, nasty, brutish and short. That's what you're arguing for.
posted by klangklangston at 12:09 AM on September 10, 2014 [16 favorites]


> it's not about whether my family member is innocent or guilty - I would defend them equally as much in both circumstances

Which is great. Everyone should have the opportunity to be defended to the full extent of the law. And if the law doesn't allow for people to be fully defended, or if some people have more defensive resources than other people, we should work to change that. Even for people who don't have a family member coming to break them out of jail.
posted by The corpse in the library at 6:03 AM on September 10, 2014


Would you support the enforcement of what you believed to be a just, or relatively just, or necessary law, even against members of your own family? Even if it meant that it would destroy your family?

Of course. My family values include supporting laws we believe are just and necessary. And that the law applies equally to all people. If, say, my sister killed someone? Yes, absolutely I would support enforcement of the law against her. No question.

What you are saying is that it's okay for someone else's innocent child to be put to death by the State, but it's not okay for your guilty child to see the inside of a jail cell.

What a stark illustration of the moral vacuum at the centre of most libertarian ideology.

Extra legal options

Stop with this bizarre twisting of the English language. You mean illegal.
posted by feckless fecal fear mongering at 6:47 AM on September 10, 2014 [6 favorites]


Also, I took an oath not to hide or conspire in a crime and to preserve and uphold the law, even if it was a family member who broke it, as you must have, if you were really a soldier.

Worth repeating.
"I, _____, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God."
That means upholding due process, does it not? And by extension, upholding the laws of the USA which have not been held to be unconstitutional?

How does that square with helping people evade justice?
posted by feckless fecal fear mongering at 6:56 AM on September 10, 2014


That is the current US Army oath for enlisted personnel. The oath for officers includes some stuff about rank, but the very same wording about supporting and defending the Constitution. Source. According to about.com, it is the same oath across all branches except the National Guard, which adds language about defending the constitution of $_state as well.
posted by feckless fecal fear mongering at 7:01 AM on September 10, 2014 [1 favorite]


corb: It doesn't mean I don't believe in justice.

Over to you, Wikipedia:
Since the 15th century, Lady Justice has often been depicted wearing a blindfold. The blindfold represents objectivity, in that justice is or should be meted out objectively, without fear or favour, regardless of identity, money, power, or weakness; blind justice and impartiality.
It would appear that you do not believe in what civilized society calls justice. You may have chosen to use that word to describe some other negotiable notion of equity or fairness that depends in large part on whether someone shares your DNA or married your cousin, but it's quite correct to say that you don't believe in justice as the term is understood by a vast majority of your fellow citizens.
posted by tonycpsu at 7:41 AM on September 10, 2014 [6 favorites]


I have taken multiple oaths in my life. I have also taken soldier's oaths and marital oaths and religious oaths, as I imagine many other people have.

Sometimes in life your oaths conflict, and you have to decide which you will follow and which you will break. This is not a special circumstance unique to me. In fact, even the soldiers oath, as built, contains conflict within it, as noted in the other thread about the "so help me God" portion.

I genuinely don't know if people here are unaware of that, or just being asses. But I don't know any morality that clearly explains any position you could possibly find yourself in, without contradiction.

I hold my marital oath at a higher value than my soldier's oath. Other people may differ, which is fine for them. I'd hate to be married to them, but it's their choice. But even then, they are breaking the vows they made to a person in order to keep the vows they made to an impersonal state. And that is as repugnant to me as apparently keeping faith with the ones you love is to the lot of you.
posted by corb at 9:10 AM on September 10, 2014


However far you want to shove the oath goalpost doesn't change the point that klang made: When you say you would burn the world for your family, you justify everyone else doing so to your family.

You said: And that is as repugnant to me as apparently keeping faith with the ones you love is to the lot of you.

You define "keeping faith" with your loved ones as an absolute willingness to destroy my family if it gets in the way. Do you remember the meTa you made a couple years ago where you asked people to stop being nasty (to you and in general) about class issues? Well, if I adhered as strongly to your philosophy, you would have to admit that I am fully justified in eating the rich in order to protect and save my family, and you don't get to complain about me doing exactly what you advocate for yourself.
posted by rtha at 9:20 AM on September 10, 2014 [10 favorites]


The problem is that you seem to hold what you would otherwise consider justice as impositions upon your individual freedom, yet characterize misapplications of justice for anybody else as perfectly acceptable casualties. This goes against the grain of most organized, civilized society.
posted by zombieflanders at 9:21 AM on September 10, 2014 [2 favorites]


I don't particularly care which oaths you find more important than others; personally, I'd never swear an oath that was in conflict with any other obligations I have staked my honour and dignity upon.

What I do care about is what I said above: What you are saying is that it's okay for someone else's innocent child to be put to death by the State, but it's not okay for your guilty child to see the inside of a jail cell.

Do you not see the problem in this stance?
posted by feckless fecal fear mongering at 9:27 AM on September 10, 2014 [4 favorites]


And that is as repugnant to me as apparently keeping faith with the ones you love is to the lot of you.

Sorry, I have to come back to reply to this.

I was an activist against the death penalty in the '90s in Illinois. I got to know a number of the men who were exonerated fairly well; I used to do public speaking engagements with Darby Tillis and Rolando Cruz, for example. I drove most Saturdays down to Pontiac Correctional Facility to visit inmates, usually in the company of the mother of Aaron Patterson. When Anthony Porter came within 48 hours of being put to death, I watched his family start to make his funeral arrangements.

This may come as a shock to you, but all of these men are human beings who have mothers who love them every bit as much as you love your children. I point this out because nowhere in anything you have written do you evince even a basic conception of other human beings outside your immediate circle as human beings, nor a comprehension that the emotions you feel are felt as deeply by said others.

Which is evidently why would have had each and every one of these other mother's children put to death. As fffm notes, you promote the execution of other mother's innocent children if it affords you the satisfaction of making sure other mother's guilty children get killed, too, but you would admittedly stop at nothing (presumably this includes murder and treason) in order to make sure you own guilty child would never see the inside of a courtroom.

This is not "keeping faith with your loved ones." This is a glib, preening, self-serving display of hypocrisy, grandiosity, deceitfulness, lack of empathy, and amorality so profound that it is virtually indistinguishable from sociopathy.
posted by scody at 9:46 AM on September 10, 2014 [43 favorites]


To put it more bluntly, you're saying it's okay for the State to use its monopoly of violence against others, but not against you.

Even more bluntly, if you accept execution of innocents, hypothetically what happens if you yourself get railroaded into being on death row? Will you accept the idea that "oh well, sometimes innocents get murdered by the State and now it's my turn," honestly? Let's assume you exhausted all legal options and fleeing is no longer doable. Will you go quietly into that night, as the price you believe society must pay?

Would you still believe it's okay to execute innocents then?

The thing about rights, about justice, about equality, is this: they apply to everyone, all the time. If you profess to believe in justice, you believe it applies to everyone without favour; else, what you believe in is not actually justice as tonycpsu pointed out. And when it comes to principles we believe in, those principles only matter when the rubber meets the road. The Buddhist monk dedicated to ahimsa who allows themselves to be beaten rather than commit violence; the free speech advocate who defends neo-Nazis; the pro-choice activist who vehemently defends a woman's right to bear a fetus to term. If you truly believe that execution of criminals is necessary, and that execution of innocents every single year is an acceptable price to pay for that necessity, you must therefore believe that if you were to be placed on death row it would be okay. Or if one of your relatives were to be placed upon death row it would be okay, and just part of the debt society must incur to be sufficiently retributive in regards to the debts of others.

The bottom line is this: do you--and this isn't only you here, it's anyone who supports execution in the face of the evidence of innocents being murdered--truly believe that this is the blood society must have on its hands, and thus will be willing to pay that price yourself? Or do you believe it is the price only other people must pay? Only one of those stances is consistent and morally supportable.

Execution is simply not defensible in any way; it does not act as a deterrent. If it did, we wouldn't see so very many people killing each other. It does not act as punishment; punishment requires consciousness in order to be effective. It isn't cheaper, even; the necessity of ensuring that the correct person is executed mandates years of appeals and--thank you--due process.

Execution serves only to satiate the bloodthirsty desires of humans. And we, by this point in our development, should be far beyond that. When someone kills someone else, it is a sign that society has failed. The correct, constructive response is not to kill someone else; the constructive response is to address the societal ills which made someone transgress in the first place. Yes, punish. Yes, lock dangerous people away until they are no longer dangerous.

But killing innocents is not acceptable in wartime--as a soldier, you know this; civilians are not legal targets. Why, then, is killing innocents acceptable to serve the thoroughly discredited purpose of preventing other innocents from being killed? We had to burn this village to save it doesn't wash.
posted by feckless fecal fear mongering at 9:53 AM on September 10, 2014 [8 favorites]


And that is as repugnant to me as apparently keeping faith with the ones you love is to the lot of you.

Apart from the disgusting cheap shot here--seriously, even for you, it's a cheap and nasty attack that serves nothing--you are operating from flawed bases.

Keeping faith with my loved ones includes standing up for our shared values. Namely, that if you commit a crime prohibited by a just and necessary law, you must be held to account no matter who you are.

That is what justice means. That is why justice is blind. Everyone is subject, or should be.
posted by feckless fecal fear mongering at 10:00 AM on September 10, 2014 [5 favorites]


Put more bluntly: never has "fuck you, I've got mine" been so clearly stated as a stance, corb.
posted by jaduncan at 10:11 AM on September 10, 2014 [11 favorites]


Thank you, scody, for making my home state a better, more just, more humane place.
posted by Eyebrows McGee at 11:08 AM on September 10, 2014


I think your idea of what I mean by wholly innocent is slightly different than mine (for example, it would not require currently capital crimes, as I think some crimes are no longer capital that should be), but yes. One wholly innocent person executed in 22 years is completely acceptable to me in exchange for the ability to execute some of the worst offenders.
posted by corb at 4:16 PM on September 9 [+] [!]


I'm quoting this because it appears to be a genuine statement. Logically, this reads like, It's okay if our government kills some persons who didn't actually do what the government said, as long as that death rate is less than 1/year.

That's pretty fucking repugnant.
posted by disconnect at 11:21 AM on September 10, 2014 [5 favorites]


John Rawls called it the "Veil of Ignorance" where you don't know what your "starting position" is.

As seen on Doctor Who.
posted by homunculus at 3:26 PM on September 11, 2014




scody disabled her account and that really fucking sucks.
posted by poffin boffin at 10:15 PM on September 11, 2014 [9 favorites]


Damn it. Hope you can come back soon, scody -- I really respect your contributions around here.
posted by tonycpsu at 10:21 PM on September 11, 2014


People disable their accounts for many reasons. I hope scody's is temporary.
posted by JHarris at 11:17 PM on September 11, 2014


She's just taking a break, yup.
posted by rtha at 5:31 AM on September 12, 2014 [9 favorites]




A libertarian supporting the death penalty is baffling to me. State imposed death is virtually antonymous with liberty.

My complete opposition to the death penalty comes from libertarian leanings, not liberal ones.
posted by spaltavian at 4:52 PM on September 17, 2014




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