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Death Penalty Broderism

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Charles Lane — fresh from writing an article about our allegedly foolproof death penalty system that never used the words “Cameron Todd Willingham” — wishes we could stop all the “polarized” debates about the death penalty and just concede that he’s right:

Yet, on one point, Breivik is not talking crazy. At his trial, which began April 16, he pronounced the maximum penalty for his actions — 21 years in prison, or longer if the government meets certain conditions — “pathetic.” He “would have respected” the death penalty, Breivik said. Of course, he won’t get it; Norway abolished capital punishment long ago.

Norway has suffered deeply because of Breivik, and I don’t mean to add insult to injury. But this situation illustrates what’s wrong with banning the death penalty in all cases. If executing an innocent man is the worst-case scenario for proponents of the death penalty, then threatening Breivik with prison is the reductio ad absurdum of death-penalty abolitionism.

[…]

Both abroad and at home, we need less polarized debate, less moralizing — and more honest legislative efforts to reconcile valid concerns about the death penalty with the public’s clear and consistent belief that it should remain available for the “worst of the worst” offenders.

First of all, note the clever bootstrapping here. I agree that if Brevik actually would be released after 21 years that the sentence would be inadequate, and that there’s no reason that life without parole shouldn’t be available for first degree murder.  In this case, if Brevik really could be released after 20 years the European model really is too lenient. But by ignoring the possibility of life without parole Lane sets up a false dichotomy; it’s imply not true that executing Brevik is the only way to ensure that he won’t return to threaten the public again. Lane’s “reductio ad absurdum” fails because — contrary to what he seems to think — putting Brevik in prison for the rest of his live doesn’t strike me as “absurd” at all. I live in a state with precisely that legal status quo and what negative consequences have followed from “merely” imprisoning the worst criminals for live is…not obvious, while the immorality of executing an almost certainly innocent man — which, Lane’s hand-waving aside, is not merely hypothetical — really is obvious.

But even if we assume that death really would be the most appropriate penalty for Brevik, that’s irrelevant to evaluating actually existing death penalty systems. Our death penalty system does not, and will not, limit itself to a few clearly guilty people who Chuck Lane has identified as a particularly deserving monster. It is racially discriminatory; it executes people who are not clearly guilty and in some cases are almost certainly innocent; and in practice it arbitrarily selects a small number of people who commit fundamentally similar crimes for the most severe punishment. And to think that this actually existing death penalty will be transformed into Lane’s idealized model is dreaming in technicolor. If it’s divisive to evaluate the death penalty as it actually works, call me the great polarizer.

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  • Malaclypse

    Shorter Charles Lane: I believe a mass-murdering white supremacist has some valuable moral insights that we can all agree to respect.

    • Charlie Sweatpants

      Yeah, any time you have to type something like this “Yet, on one point, Breivik is not talking crazy”, it may be best to just drop the whole thing.

      More broadly, and aside from it maybe not being the best thing to give this cheerful murderer what he wants, isn’t life without parole the worse punishment for a guy like Breivik? He’s said that he thinks his actions will be justified in time, that decades from now “multiculturalism” will be dead and some post-race war all white society will hail him as a hero. Wouldn’t it be better to just let him sit somewhere and watch that not happen?

      • proverbialleadballoon

        to add to that, charlie, life without parole is not only the worst punishment for the murderer, giving him a lifetime to sit and stew in his own craptitude, but the best remedy for the public. look at charlie manson, forty years ago scary supervillain monster, today, broken-down old fart with a stupid swashtika on his face. it demystifies and demonsterizes the murderer, something the death penalty would miss.

    • KeithOK

      And I think Charles Manson made a valid point by failing to show up for his parole hearing …

    • pseudonymous in nc

      Shorter Charles Lane: “Anders Behring Breivik is a monomaniacal murderer who wants to remake the Norwegian justice system in his own image; I support him wholeheartedly on this.”

    • wengler

      The Norwegians believe that a hate-filled mass murderer won’t be able to destroy their laws or way of life.

      If only Americans believed enough in their ability to self-govern to do the same thing. Instead torture, war, and assassination.

  • Lurker

    I’m not a Norman, but I’ve followed the case rather closely, and Norway doesn’t have the sentence of LWOP. (Most European countries don’t have LWOP.) They don’t even have a life sentence, and that’s a great difference between them and most European countries. In most European countries, it is possible to get a life sentence, with a possibility of parole. Usually, parole is given sooner or later, but it is not automatic.

    In Breivik’s case, however, he is likely to get in addition to the maximum prison term the additional measure of “isolation”. This is not considered a criminal punishment but a “protective measure”. After Breivik has served his term, he can be kept in jail as long as he is deemed a danger to the society. This is reviewed after every five years. So, it is unlikely that Breivik ever walks free, although this is done by an administrative measures, not through the prison sentence.

    • Scott Lemieux

      Yeah, that’s what I figured.

    • firefall

      Norman? Normans come from Normandy

      • Bill Murray

        but they came to Normandy from Scandinavia

        • proverbialleadballoon

          in 1066. what is the battle of hastings, alex?

          • Bill Murray

            no in the 10th century. 1066 was when the Normans expanded to England

        • Jamie

          I’ll take Reductive Vaguely Interesting Facts That Ate My Intellect for $500, please.

    • Jim

      I haven’t been following it closely. Is there any reason he couldn’t be consecutively sentenced for 69 counts of murder? That would likely be a lot longer than 21 years.

      • Lurker

        In Nordic countries, we don’t do that. We give a single sentence for all crimes that have been committed by the day of judgement. The sentence is always reasonable. Example: you commit a grand theft, and get six months, with probation. You commit two grand thefts, and get, say eight months, again with probation. If more prior crimes surface after the judgement, the new sentence is an increment to the previous one. In the previous example, if the convict would be later convicted also of a third grand theft done during the same period, he would get, say, 30 days, as an addition to the earlier sentence.

        Similarly, in Sweden and Finland, where you can get a life sentence, the life sentence encompasses all your other sentences: 69xlife=life. In Norway, there is no life sentence, but you can’t get more than 21 years at a time. Then 69×21 years=21 years.

        • Jim

          Thanks! I assumed there was a difference between the US system and the Norwegian system, but couldn’t find an easy explanation anywhere.

    • mpowell

      This is actually a pretty reasonable system. It does not make sense to attempt to tie the hands of the government 20 or 30 years down the road. If a person is really that dangerous to society, successive reviews of his situation will simply result in his continued incarceration. If you are really fearful that down the road some review board will decide he is ready to be released, doesn’t that indicate that you are intentionally trying to reach a sentence based on the emotional immediacy of the crime instead of an impartial review of the actual danger posed by a person?

      • chris

        If you are really fearful that down the road some review board will decide he is ready to be released, doesn’t that indicate that you are intentionally trying to reach a sentence based on the emotional immediacy of the crime instead of an impartial review of the actual danger posed by a person?

        Well, sure, but if you’re authoritarian enough, that’s not a bug, it’s a feature. Criminal justice systems aren’t there to rationally protect the public from real dangers, but to channel its fear and lust for vengeance into directions marginally less harmful than gunning down random teenagers in hoodies.

  • Heron

    I have to say I’m somewhat tired of seeing people trivialize long-term imprisonment. 20 years is a big part of someone’s life. When Brevik leaves (if he leaves) he’ll be old, grey, worn out, and probably have all manner of back and joint problems. Everyone he knew will either have died, moved on with their lives, have no desire to see him, or be someone he knows about from prison. He’ll have a hard time getting a job, he’ll be plagued by learned prison routines that will mark his behavior and outlook until death, and the world itself -its technology, its leaders and issues- will be unfamiliar to him. Brevik will go in 32, and at the earliest, leave in his fifties. They might not call his sentence “life”, but that’s precisely what it is and the Norwegian authorities know that well enough not to feel it necessary to engage in the clownish, multi-century sentencing theatrics common to our legal system.

    Is what Brevik did monstrous? Yes. Will Brevik be a danger to anyone after spending the next 21 years in prison? Not at all. What we see here is the difference between a realistic system focused on rehabilitation/danger mitigation, and our own, which is primarily a fantasy of self-righteous punishment-meting (and in recent decades, generating profits for private business).

    • mingo

      I agree with the non-trivial nature of 20 years in prison, but I am strongly of the opinion that Breivik will be a danger until he draws his last breath, and he will be only 60-something when he gets out with the 21 year sentence. He needs to be in prison until he is dead.

      • Richard

        Absolutely agree. If he is released after twenty years, he won’t be old and decrepit. Hell be fairly young and will likely be greeted a hero by some. Twenty years is pathetically short term for him.

        In theory, I would support the death
        penalty for him and a few others of the Manson/mass murderer ilk but I agree with Scott’s argument that, in the real world we don’t have a way of limiting it and/or getting rid of the problems when the death penalty is widely available

        • Lee

          My criminal law professor, who was a vehement death penalty supporter, believed that the death penalty should be on the books simply so we can inflict it on the worst killers. The problem with the “just in case we get a real nutter” death penalty is that some prosecutors are going to find a lot of “real nutters”. And I’m symaptheic towards the idea that some people have committed acts so evil and atrocious that they deserve to hang. Yet defining what minimal level of evil is neccessary to warrant the death penalty is impossible.

          Its frustrating but the worst punishment that can be safely inflicted on the worst mass murderers is life in jail without parole.

          • joe from Lowell

            This is my position exactly.

            Ted Bundy deserved to die. It is not unjust that he was executed.

            Nonetheless, it would have been wiser to show him more mercy than he deserved.

            • Malaclypse

              Nonetheless, it would have been wiser to show him more mercy than he deserved.

              Nicely put.

            • Gandalf the Grey

              Many that live deserve death. And some that die deserve life. Can you give it to them? Then do not be too eager to deal out death in judgment. For even the very wise cannot see all ends.

              • joe from Lowell

                …cannot see all ends

                I’m not talking metaphysics here.

                I can see that it costs $308 million a pop to “end” someone in California, and that’s just nuts.

          • Spud

            My criminal law professor, who was a vehement death penalty supporter, believed that the death penalty should be on the books simply so we can inflict it on the worst killers.

            Let me guess, Robert Blecker?

            The problem with that line of thinking is people are uncomfortable with retribution as a guiding principle for sentencing.

            They always try to justify it as either deterrent or possible rehabilitation. The reality is neither of these are true. However, they give a level of respectability to such ideas that punishing someone for “violating the codes of society” doesn’t.

            • Lee

              Bingo, my criminal law professor was Robert Blecker. He once cancelled class because he was flying off to Belgium to shill for the reinstatement of the death penalty.

              • Spud

                I had him too.

                Although his ideas sound good, I just don’t see any state or country adopting the death penalty for serial killers/mass murderers only.

                Its too fun a tool for prosecutors not to use in order to leverage against defendants. Its too much of a legislative hassle to get it on the books to keep it so limited. If you have it, the urge is for it to be used expansively. It means it WILL be abused.

      • JoyfulA

        I used to be of the opinion that we should imprison such people until they’re 60 or so, mature and worn-out and likely to be expensive to the prison system through high medical costs.

        Then a 60-ish motorcycle gang leader was released after a long term and shortly thereafter arrested for murder. Within the year, an old convict in a wheelchair was released; who could think he was a threat? Before long, he took offense in a bar and shot up the joint.

        So now I’m against releasing prisoners who are too old to cause trouble. But I’m still against the death penalty. Except for corporations, of course.

        • Richard

          As you get older, you will realize that being 60 or so doesn’t mean you’re worn out and useless. I just turned 65, am in very good physical condition and am as able to commit mayhem and mischief (should I choose to do so) as I was when i was 45. Its a scary thought that Brevik might be released when he’s 51 (since I am fairly confident his views wont have changed). I’m hoping that the Norwegian administrative system wont release him even if he claims to have changed. But I would feel a lot better if Norway had a rational LWOP penalty for crimes like this

          • Josh G.

            I just turned 65, am in very good physical condition and am as able to commit mayhem and mischief (should I choose to do so) as I was when i was 45.

            But we know that on average, a 65-year-old or even a 45-year-old is far less likely to commit mayhem or mischief than someone in their teens or twenties. This isn’t because of physical incapacity, but rather because of emotional maturity.

            • Richard

              Sure, a 65 year old is somewhat less likely to commit mayhem than a 25 year old because of maturity but it can’t be ruled out and, in the case of a Brevik, I dont want to play the odds. Do you believe this guy is going to mature?

            • Hogan

              Yes, but we’re not usually dealing with averages; we’re dealing with specific cases.

              • Jamie

                False. Laws are about dealing with averages, and attempting to set normative constraints.

                In other words, as soon as you start saying, “but this guy…”, you are doing it wrong.

                • Gandalf the Grey

                  “Normative constraints” doesn’t have to mean “one size fits all.” That’s why we have sentencing guidelines and parole boards.

          • VictorLaszlo

            You should sent them a letter. I’m sure they would be eager to hear your views on the matter.

            But I would feel a lot better if Norway had a rational LWOP penalty for crimes like this

          • Holden Pattern

            Why? Are you Norwegian?

          • mpowell

            There is nothing rational about LWOP. It is strictly about limiting the decision-making power of future parole boards with your in-the-emotional-moment preferences. If it isn’t rational for a future parole board to release a convict, the parole board is far more likely to reach that conclusion correctly than a jury today. After all, the parole board in the future may actually be able to assess what the person is like after x number of years while a jury is only guessing.

            • Richard

              When you kill 75 teenagers and your only motivation is anti-immigrant hatred, I believe you should get life without parole and not have the option of convincing some board in the future that you’re a changed man and not a threat to society.

              • Furious Jorge

                You have little faith in the Norwegians, apparently, if you think they would ever really decide to release the most notorious* criminal in their history.

                * Maybe he’s not – I have no knowledge of the history of crime in Norway. But I’d feel pretty safe betting on it.

                • Richard

                  I think it is highly unlikely the Norwegians would release him. On the other hand, i would like to be absolutely sure of that and see no value whatsoever in a 21 year sentence for this guy. Even if he were to profess to being sorry for his acts, embraces multicultarism and perform saint-like acts in prison, I would still keep him in prison until he died.

    • Joe

      I too think it trivializes prison to belittle how bad twenty years amounts to and think LWOP for “first degree murder” is too absolutist. One can imagine various scenarios (should we keep some decrepit eighty-something in prison after he is there for thirty years?).

      Still, saying a guy in his 50s (which he will be in 21 years) will not be a danger to anyone is something of an assumption.

      • Scott Lemieux

        I’m not saying that LWOP should be mandatory for any 1st degree murder, but it should certainly be an option.

      • Josh G.

        The overwhelming majority of violent crimes are committed by young men aged 14 to 30. It shouldn’t be difficult to understand why; we all know that young men (even those who don’t commit serious crimes) are known for doing remarkably stupid things, and for having poor long-term planning abilities. Furthermore, science shows that the human brain does not fully mature until about age 25.
        We can safely assume that the average armed robber who got sent to prison for knocking over a convenience store at age 21 won’t be much of a threat at age 55.
        That said, there are exceptions: serial killers (who sometimes get *more* dangerous as they age) and those who commit violence out of ideological motives. Brevik probably falls in the latter category and is therefore more likely than your run-of-the-mill crook to be dangerous as a middle-aged man.

      • Heron

        Yeah, I stated that more strongly than reality likely justifies, but surety always makes for better rhetoric.

    • ajay

      “When they let him out, he’ll be 50, which is basically as good as dead”.

      Thanks Heron.

      • Heron

        Not as “good as dead”. Saying someone who, at least, will be in their 50s at the time of release will be less physically able than when they were in their early 30s, and have all the health complaints common to your average male in his 50s is not saying all 50 year olds are walking cadavers, wasting precious air and space while stubbornly refusing to flop over. It is saying he will be less physically capable, with few bearings in the world, decades of prison time marking his behavior, and hopefully the understanding that his massacre cost him his youth and whatever ambitions he had. Prison’s not exactly the most healthful environment, either, so one can assume those 20 years to be rougher than they would for someone on the outside not eating your typical diabetes-flirting American diet.

        Admittedly, there are examples of people in the states that go in and come out just as fucked up or worse decades later, but those folks tend to be the one’s who were repeat offenders before they went in, and I it isn’t controversial to say that the US penal system isn’t exactly known for providing inmates with the skills and experiences needed to live peaceably. And while it’s important to acknowledge that statistics aren’t the individual, it’s also important to give Norway credit for having a much better prisoner rehabilitation and release review program than the US. According to what numbers I could find, Norway has a recidivism rate of ~20%, which is either 10% or 30% lower than US recidivism rates (depending on whose numbers you use). Given that statistic, I think we should at least entertain the possibility that, beyond being physically less vigorous due to such a long imprisonment, Anders might also be psychologically less inclined to violent behavior if the Norwegian authorities ever find him fit for release.

    • McKingford

      It’s worth noting the real effect of a life sentence – even (especially!) with parole. I know people imagine Canadians as soft bleeding hearts, but when it comes to murder here for example, the minimum penalty is life. The only issue on sentence is the period of parole ineligibility. For 1st degree murder the sentence is automatic – life, with a 25 year period of parole ineligibility. For 2nd degree murder the period of parole ineligibility is imposed by the judge and can range from 10 to 25 years.

      Parole eligibility is not the same thing as parole. Charles Manson is a perfect example. He has been eligible for parole a number of times, but has always been rejected. And the reality in the Canadian system is that the majority of lifers never even apply for parole. Even among those who apply, most are rejected. So the fact is that only a very small percentage of Canadians serving life sentences ever see a halfway house.

      But remember, even with parole, a life sentence remains a life sentence. Your warrant of committal only expires when you do. Even on parole you are subject to routine searches, drug and alcohol tests, financial records accounting, being banned from any licensed establishments, and other various rules. Breach of any condition of parole can result in revocation of parole, meaning the return to prison for what remains of the life sentence. Parole while serving a life sentence is no picnic.

      • pseudonymous in nc

        I know people imagine Canadians as soft bleeding hearts, but when it comes to murder here for example, the minimum penalty is life.

        That’s an inheritance from the British system, which, until 1965, actually mandated the death penalty for murder, even though it was increasingly commuted either by the government or the judge. After abolition, it was replaced by a mandatory life sentence with a tariff before parole eligibility; it’s the US that came up with the various degrees for sentencing purposes.

    • wengler

      As noted upthread he is unlikely to ever be released from prison.

      • Richard

        But unlikely isn’t sufficient for a guy like Brevik. I would prefer a system where there was no possibility of this guy ever getting out.

        • mpowell

          No, you prefer a system which makes it easier to accomplish this for the average criminal and also a system which grants you assurance on what will happen in the future independent of whether it is the rational thing to do. There is no guarantee that anyone will serve for life under any system. You are just trying to shift the decision point from a parole board in the future to a jury or judge today.

          • Richard

            I want certainty. If the crime and the person warrants a life sentence, I want the life sentence carried out. I dont want some murderer finding god and somehow convincing a parole board (a bunch of political appointees) that he or she should get out. I believe having the sentencing option of LWOP available to the judge and jury today is a very rational system.

            And I don’t understand your comment that LWOP doesn’t guaranty a life term. Barring a gubernatorial pardon or prison break, it most certainly does.

            • mpowell

              Your reasoning rests entirely on the assumption that the judge and jury are more reliable than a parole board. My argument is that this fundamentally irrational in that the parole board will always have additional information and less emotional immediacy. The only way your argument makes sense is if you want to involve the emotional immediacy of the crime in the sentencing process, something that is by definition a non-rational process.

              If you think parole boards are too lenient, that is a separate complaint, but the predilections of a jury are almost entirely determined by the relative skill of the prosecutor and defense attorney in selecting one. That is hardly a superior process. Judges are either elected or appointed as well.

            • mpowell

              Just to make this point clear: you don’t get certainty through a jury process. You just get a jury process. LWOP just takes the option of incacerating someone for life away from a parole board and gives it to a jury.

              • Richard

                In my view, that is not a good thing.

                • Richard

                  To be clearer, I dont think putting this power in the hands of a parole board is a good thing.

                • chris

                  Better than putting it in the hands of the jury: the parole board has the benefits of expertise, perspective, and knowing what happened in the meantime (which is relevant for some murderers, even if not for this one).

                  Given that perspective on Breivik’s crime will almost certainly still reveal that it was one of the most horrible ones since they stopped performing blood eagles, the distinction is likely academic in his case, but in more marginal cases, the rational thing to do is to put the decisionmaking power in the hands of the ones better equipped to rationally exercise it, which is the parole board.

                  On the other hand, if I were a Norwegian voter, I wouldn’t be that opposed to relaxing the limit for multiple murderers, so that it’s, say, 21 years for the first victim, plus one for each additional victim; for most cases this wouldn’t be that different from current policy, and for Breivik it would produce the result that’s almost certainly going to happen anyway. So if some people feel better that way, it’s an almost free win. (On the other hand, if Norway has a version of the ex post facto clause, amending the law now wouldn’t change Breivik’s sentence anyway.)

        • wengler

          Why? You live in the US(presumably). You know what an extremely punitive system looks like. You don’t think likely lifetime detention is good enough for Norway’s most notorious murderer?

          • Richard

            Likely lifetime detention is not good enough. This man’s crimes are so great that certain lifetime detention should be the punishment

            • wengler

              I don’t think there is as much difference between likely lifetime detention and certain lifetime detention as you think.

              I think people in the future are more than capable of making these decisions. It’s not like they are going to forget what happened. Mass casualty violence isn’t common in Norway like it is here.

              • Richard

                In the case of this guy, I don’t see ANY value in letting a board later decide his fate. I don’t care if he converts to pacifism and multicultarism and is a saint in prison, you kill 75 teenagers, you should never, never be let out. It shouldnt be on the table as an option. The only option should be to die in prison.

                You also have much more faith in the inherent good faith of an administrative board than I do. In the US, I think they are generally a bunch of political hacks who get a soft job that doesn’t require too much work. Maybe its differnet in Norway but I doubt it. I prefer a judge to make sentencing decisions after the defendant is convicted. What happens if political trends change and the Norwegians, like the French are doing, turn against immigrants. I don’t want a bunch of beaurocrats following the political winds and deciding that this monster was ahead of his times in opposing immigration, had served enough time and should be let out.

  • mingo

    “Less moralizing” – jeezus, pointing out that innocent people are put to death is moralizing? No, it’s the same friedman-liberal* invoked here, where we are all concerned about the background of the poor criminal, and wish him to get a great big hug. They NEVER bring up the execution of innocent people.

    I have no problem with putting to death people like Breivik, Bundy, Cheney (in my dreams), but the trouble is they take other people with them.

    Why is this never brought up by the tough-minded, clear-eyed, honest deathers? (all those adjectives snark, in case it’s not clear) So, Life in prison forever. Which is not exactly merciful.

    *really, that guy who yoostabee a liberal, but ever since his bike was stolen wears a pointy white hood.

    • david mizner

      Lane wants to tinker with the machinery of death.

      From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored…to develop…rules that would lend more than the mere appearance of fairness to the death penalty endeavor…Rather than continue to coddle the court’s delusion that the desired level of fairness has been achieved…I feel…obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies

  • Hogan

    Look, I really want to kill this guy, so could you stop the moralizing?

  • david mizner

    Wow, he really does make the Bible’s “eye for an eye” concept sound noble.

    The stubborn fact is that death-penalty abolitionism runs counter to one of humanity’s oldest and most persistent moral intuitions: that there should be condign retribution for the most monstrous transgressions.

    Actually, it runs counter to one of humanity’s oldest and persistent base instincts.

    It’s wrong to kill in cold blood, mmm kay?

    Anyway, as Lane notes, anti-death penalty sentiment is growing in the U.S.. I have to give a lot of credit to the Innocence Project and others who’ve focused on the wrongly executed. The pure moral argument gets you only so far in the US of A.

    • As someone who has been pretty involved in the SAFE California campaign in California, albeit at a fairly low level, anti-death penalty activism is successful largely because we are pushing on an open door. Politicians who two decades ago would have been bragging about how they were tough on crime because they supported the death penalty are now eager to hear how they can cut costs by ditching it. Activists are passionate about ending it, but there are few passionate about keeping it. And I think a lot of the public is slightly embarrassed about their support for it, not exactly apologetic, but I do think there have been enough stories about innocent people getting killed that they get on some level that something is wrong. Really, it’s been one of the more successful social movements over the past decade or so, though it’s gotten almost zero attention, thankfully. It hasn’t become a charged culture-war battle yet.

      Speaking of “worst of the worst”, Chuck Lane deserves that designation in terms of his punditry. What kind of jackass uses a mass murder by a fringe nut as just another paean to good old bipartisan decency? I think it’s time to revoke that guy’s lifetime pass–as if it was that hard to realize that Stephen Glass was a faker.

      • david mizner

        I agree.

        it’s been one of the more successful social movements over the past decade or so, though it’s gotten almost zero attention, thankfully. It hasn’t become a charged culture-war battle yet.

        But I think it’s been aided by the drop (in most places) in violent crime. If it rises again — and it might, given the economy — pols will again use it.

      • mpowell

        There is a window on how long old DNA evidence will be able to exonerate death row convicts, though. After that window passes, if the death penalty still exists, people will return to assuming that very few innocent people are in prison, much less on death row. And then I think enthusiasm for the death penalty will increase again. This applies generally to judicial reform, a movement that, contra the death penalty, has been going nowhere. NJ’s review of old DNA evidence suggests to me that as much as 30% of guilty verdicts could be false convictions.

    • chris

      death-penalty abolitionism runs counter to one of humanity’s oldest and most persistent moral intuitions

      Actually, it runs counter to one of humanity’s oldest and persistent base instincts.

      To-may-to, to-mah-to…

  • chris y

    Executing Breivik would be allowing him to continue writing his own script, which is of course exactly what he wants.

    Locking him up for a very long time (whether he dies in prison or not is really neither here nor there) says, “You’re not special, you’re not a fucking martyr, you’re just a piece of shit like all the other murderers.” That’s what he wants to avoid confronting; that’s what he should get.

    • Uncle Kvetch

      +1

    • proverbialleadballoon

      harrumph.

    • wengler

      I wish we could’ve done this with bin Laden, but the ‘war against terrorists with magical powers’ had already been implanted in the brains of Americans too deep.

      19 guys flying planes into buildings is a crime, not a war. And al Qaeda’s far right wing caliphate dream had about as much support in 2001 as Brevik’s white nordic Christian Europe dream does now.

      • Holden Pattern

        But America, fuck yeah!

        Seriously, treating bin Laden and his ilk as warriors we fear valorized and legitimized them. We should treat them like the criminal scum that they are/were, and show that we’re not afraid of them. Instead we decided to shit our collective pants and treat them like supervillain warriors.

  • rea

    That some nutjob like Breivik is more turned on by the thought of an execution than by being locked up likely for the rest of his life is hardly a reason to give him what he wants.

  • “reductio ad absurdum”

    People who don’t know what this means shouldn’t use it.

    (I suppose my sentiment could be fairly expanded to include all words/phrases/idioms, so: whatever.)

    • jayackroyd

      Sure. Your sentiment could literally be expanded to encompass the known universe, and even beyond.

      • Bill Murray

        is that expandio ad absurdum

  • Joshua

    I’d rather get executed than spend the rest of my life in prison. Yea, I think life in prison is a worse punishment than execution.

    Also, doesn’t execution turn guys like this into martyrs? Put them away and society can watch them becoming feeble old men.

  • Uncle Kvetch

    I’m disappointed. I was hoping the punchline would be “And in order to ensure fairness and due process, we’ll get Michael Bloomberg to convene a panel of wise and impartial billionaires to decide who’s bad versus who’s really, really bad.”

    • Bill Murray

      sorry, that is Santa Claus’ job

      • Uncle Kvetch

        If Santa Claus hasn’t been able to become a billionaire doing the job, he doesn’t deserve the job. Why don’t you just go over to the May Day thread and hang out with your pinko friends?

  • firefall

    the public’s clear and consistent belief that it should remain available for the “worst of the worst” offenders.

    Not in Norway … in fact, only in the US is this true, I think.

    • No, this is consistent with the way capital punishment is regarded in North Korea, and China, and Saudi Arabia too.

      • chris

        How do you know? Those countries are even less democratic than the US. Just because the ruling classes there consider it useful doesn’t mean that the populace agrees.

        Only in the US can you say with any confidence that we have a brutal and barbaric justice system because we *like* it that way.

    • elm

      I, too, wondered about that. Is there public opinion polling on the death penalty (for Breivik or in general) in Norway? Or in other European countries? I guess it makes sense if Lane is only talking about the debate in the U.S., but then bringing in Breivik becomes somewhat irrelavent.

      • John

        My understanding is that there’s a lot of underlying popular support for the death penalty in places like Britain that don’t allow it, but that there’s virtually no support for it from political elites.

        • wengler

          And it’s never salient enough to cause people to vote for a ‘death penalty’ candidate. There are plenty of US states that abolished the death penalty around the same time as western Europe, and they get along without it.

          The death penalty is an artifact of authoritarianism. It is no coincidence that the most religious and least educated places in the US condemn the most people to death.

          • John

            Certainly true. But I think it’s reasonable to point out that, even in countries without the death penalty, the idea of it remains popular with the general public, even if it’s not that important issue to most.

  • Halloween Jack

    Another reason not to kill Breivik–even if you’re willing to make a “clearly a monster in human form” exception for him–is that killing a mass murderer helps lead to conspiracy theories. There are still 9/11 truthers out there, not to mention JFK conspiracy nuts, and probably even some Oklahoma City bombing paranoids out there. The main exception to that is James Earl Ray participating in the conspiracy-mongering regarding MLK’s assassination before his death, but that was an anomaly, coinciding with MLK’s heirs seeking to exploit his legacy commercially.

  • joe from Lowell

    Yet, on one point, Breivik is not talking crazy. At his trial, which began April 16, he pronounced the maximum penalty for his actions — 21 years in prison, or longer if the government meets certain conditions — “pathetic.” He “would have respected” the death penalty, Breivik said.

    Why should anyone pay attention to the opinion of someone like Brevik, who clearly considers human life to be so cheap?

    • ajay

      +1.

  • Both abroad and at home, we need less polarized debate

    The way you get less polarized debate is to use as your example a guy who cheerfully admits to killing dozens of kids.

    • I have some snark that I had to pocket because Lane makes me so sick.

  • christian h.

    Personally, I’m opposed to life without the possibility of parole (almost) as much as I’m opposed to the death penalty. Either of these sentences is based in a view of punishment as retribution that is simply strange to me.

    • Richard

      We disagree. I strongly favor LWOP for certain crimes and favor the death penalty in principal for certain crimes but am opposed to it in practice because I don’t think it is possible to administer it fairly. Do you really believe that LWOP is wrong for a Mengele, Goering, Manson, Bundy, et al?

      • Whispers

        Manson is a good example of why LWOP is not necessary. He keeps getting his parole board hearings and he keeps getting denied.

        • Richard

          Manson gets denied because he’s notorious. For crimes like Manson committed, I would prefer a system that just gave him LWOP and eliminated any possiblity that he would be granted parole if, like other murderers, his case fell under the radar of public scrutiny.

          Manson is also a special case. He was originally sentenced to death and then the California death sentence was overturned but without a LWOP provision in effect at that time, his sentence could not have been converted to LWOP. Under current California law, he would have received death or LWOP without question.

      • Either you have a principle or you don’t, is how I see it. I don’t want to be the one who gets to decide what’s “bad enough,” and I don’t want the state to be either.

        • Richard

          I dont understand that. In every criminal case, the judge or jury gets to determine the “badness” of the act and the perpetrator in deciding what the degree of crime is and then deciding what the appropriate punishment is.

          • But I don’t WANT a judge or jury making such determinations. Killing someone is some serious shit, and I think the state needs to stay out of it altogether.

            • Richard

              Maybe I’m dense but what do you want then? Someone kills somebody and is captured. What happens next in the system you want?

              • Er…punishments other than killing them? I don’t get what’s so unclear.

                • Richard

                  So because of the extreme nature of the death penalty, you want capital punishment taken off the table as an option. OK. My position is different – I don’t have a problem with death as a punishment but because we don’t have a system that seems capable of administering that option fairly, I would prefer to see capital punishment banned (but strongly support LFOP in certain cases). In principal, I’m not opposed to the death penalty.

      • christian h.

        I’m not opposed to political violence. Of course a Goering may be executed or locked away forever so he can’t become a focal point for supporters in the future – that’s a political judgement to make in an extraordinary situation.

        But as far as a justice system is concerned, a Goering or Mengele shows exactly the absurdity of making retribution the basis for it – their crimes having been so huge you can’t dish out any retribution for them that doesn’t seem inadequate.

        • christian h.

          To add: a serial killer who will be a danger to everyone if free shouldn’t be released. But that’s a different issue, practically every country has provisions for that kind of thing.

    • Joe

      Retribution is not “simply strange” to me. It might be misguided. But, as with prejudice and such, I’m not surprised by it or anything.

      I don’t want to be petty here. I think the word choice is telling. It’s like Rachel Maddow apparently being honestly surprised Republicans don’t accept there is a pay inequality among the sexes. Really, Rachel?

      • christian h.

        I didn’t say it surprises me that other people have a different take on it. I said it is strange to me, personally. That’s all.

        • Joe

          I don’t know why it is “simply strange” to you. What is “strange” about it?

          Retribution is a far from strange reason to punish people. It is a basic option when punishment is discussed. It might be a bad idea. But, what is “simply strange” about it?

          • joe from Lowell

            Indeed, the basic human drive for retribution is a constant in human existence, and one of the foundations of law and government authority. Courts – think about the root of that word – and sentences were created to systematize the doling out of punishment in order to pre-empt retribution from aggrieved parties, and thereby avoid unending spirals of vendetta.

            It’s strange to me that anyone would find the desire for retribution strange. It’s like saying you find sexual desire or grief strange.

      • Heron

        I can’t speak to her state of mind, but maybe she believed it was something they said out of cynicism. People that live and work around the D.C. area tend to be taken aback when they realize some political actors say and do things out of genuine conviction.

  • Michael

    I do take your point that the manner in which the death penalty is administered is deeply problematic. I can’t agree, though, that it is “irrelevant” whether some offenders deserve death or not: the point of sentencing is, in large part, to capture the gravity of the offence and the moral blameworthiness of the offender. If nothing short of execution does that, then this is an argument for retaining/restorting the death penalty.

    That brings us back to the administration of the death penalty. Yes, there is racial discrimination. Yes, there are convictions resting on ‘unsafe’ evidence. Yes, police and prosecutorial discretion leads to unequal application of the death penalty. (I would be inclined to collapse the first point into the third.) But these issues go to the “machinery of death”. And it is open to legislatures to tinker with it in a way that makes the application of the death penalty more equitable. For example, the Governor of Massachusetts proposed, a number of years ago, to have a kind of ‘super due process’ for death penalty cases, in which the trier of fact would need to be convinced to a standard over and above ‘beyond a reasonable doubt’. In principle, that would seem to be a way of curing the second problem you raise. And it is always open to the legislature to direct prosecutors to (not) seek the death penalty when certain criteria are satisfied – to constrain discretion in a way that will lead to a more fair application of the law.

    I don’t say that the death penalty necessarily should be restored or retained if this kind of ‘tinkering’ was done. My point is that the problems you raise with the application of the death penalty are precisely the kinds of matters that we can haggle over when debating its moral/political acceptability. By raising those problems, you do not defeat Chuck Lane’s argument that we should be open to discussion about the finer points of the death penalty: you only identify what those finer points are.

    • commie atheist

      Yes, we should totally leave it up to states to decide the level of punishment that its criminals deserve. What could possibly go wrong?

    • rea

      the Governor of Massachusetts proposed, a number of years ago, to have a kind of ‘super due process’ for death penalty cases, in which the trier of fact would need to be convinced to a standard over and above ‘beyond a reasonable doubt’.

      If you think that such a standard is possibile, then you are doing “beyond a resonable doubt” wrong.

      • mpowell

        Well, it’s definitely being done wrong.

        • chris

          True, but that doesn’t mean humans can be trusted to do it right by trying extra hard.

          If humans are tempted to cut corners on proof because the crime is so awful someone must pay — and clearly they are — then there’s no reason to believe an “extra beyond a doubt” standard will work any better.

  • MikeJake

    I really can’t understand why the increased cost of death penalty cases doesn’t compel death penalty proponents (who I imagine tend to be conservative) to rethink their stance.

    Of course, if private prisons don’t achieve the cost savings that their supporters anticipate, and the cost per prisoner continues to climb because the system is overburdened, then executing someone rather than imprisoning them for 40 years might seem like more of a fiscal winner. Because we couldn’t just stop imprisoning so many people or end the war on drugs, oh no. There are too many jobs at stake!

    • MikeJake

      Case in point: Joseph Naso.

      He’s being charged with committing four murders in California, and is suspected of three other murders in New York in the 70s (the Alphabet Murders). He’s 78 years old, yet the prosecutor is seeking the death penalty. He’ll be dead of natural causes long before his appeals are exhausted.

      I have little moral qualm against executing someone like Naso if he’s convicted, but how could you possibly justify the cost?

    • Holden Pattern

      Because the death penalty proponents MOSTLY DON’T LIKE DUE PROCESS ANYWAY. Their view is it’s a waste of good money to allow bad people to appeal their punishment — there ought to be a conveyor belt to a firing squad right out of the trial court.

      • MikeJake

        Well…yeah, but the laws and the Constitution are against them. Stubbornly disdaining due process amounts to sticking your fingers in your ears and going “LALALALALALA CAN’T HEAR YOU!” They’re not going to get a cheaper process.

        • Holden Pattern

          There are a number of Confederate states who beg to differ, and at least 4 SCOTUS justices with the same position. You CAN get cheaper due process — buy less, it’s just as good!

        • chris

          the laws and the Constitution are against them

          And vice versa.

  • Charles Lane is one of the most appalling of the D.C. media people. Look, if you’re so bored with politics that you just want to amuse yourself every week by defending the indefensible in order to piss off the hippies, perhaps you should consider more valuable work.

  • superdude

    What about prisoners who use a life sentence as a license to attack other prisoners and staff? It’s cruel to keep people in solitary confinement indefinitely, and it’s unfair to prisoners who want to reform. The death penalty should be an option with violent, incorrigible inmates who can’t be controlled except through cruel and unusual means.

    Admittedly, there are serious problems with the way the death penalty has been used in this country. But these are problems throughout the criminal justice system. If we don’t have enough confidence to sentence someone to death, we shouldn’t have enough confidence to pass down a life sentence. We have to operate under the assumption that the vast majority of sentences will never be reversed, so we better get it right the first time. We shouldn’t pass a moratorium on executions, then pat ourselves on the back because all of those wrongfully convicted are merely receiving life sentences and not lethal injections. It’s a difference of degree of injustice, not kind.

    • Craigo

      What about prisoners who use a life sentence as a license to attack other prisoners and staff? It’s cruel to keep people in solitary confinement indefinitely, and it’s unfair to prisoners who want to reform. The death penalty should be an option with violent, incorrigible inmates who can’t be controlled except through cruel and unusual means.

      This paragraph is incomprehensible. A prisoner with a sentence of life or days can attack the staff or other inmates, but you’re not going to convince me that harming an innocent member of society is easier on the inside than the outside.

      How does a life sentence prevent reformation? More to the point, how is that relevant to a pro-death penalty argument?

      Go talk to the Eight Amendment about cruel and unusual means of punishment, and tell us what it says.

      • superdude

        I didn’t say innocent members of society weren’t protected by life sentences. But prisoners also have a right to be protected from assaults by other inmates. This is very difficult to do with violent inmates who are already sentenced to life in prison. What do we do with them? Indefinite solitary confinement? Beatings? Torture? Somehow, taking away privileges just doesn’t seem sufficient for a prisoner who kills another prisoner.

        In the most extreme cases, the death penalty may be the most humane alternative.

        • wengler

          If you sufficiently staff the prisons, this really isn’t a problem. Prison is very good at isolating bad people from society and each other through total control of their living conditions.

          Unfortunately, this country locks up a ton of people who have no business being in prison, making the whole control of violent prisoners even harder. Prison is no place for an addict to detox.

        • Holden Pattern

          What Wengler said. If you staff prisons adequately (numbers and training) and don’t stuff so many people into them that you abdicate governing responsibility to the gangs, you’ll have an awful lot fewer assaults.

          Also, maybe we could stop treating prisoners like animals and start thinking of them like human beings. Treat them like animals and put them into an evolutionary environment for cruelty, you get cruel animals.

  • Chilly

    C’mon, can’t you just admit the Norwegian justice system is a massive failure? That’s why their crime rate is so astronomical compared to ours.

    • jefft452

      this!

  • Gus

    I don’t know how one can read Lane without a nearly irrepressible urge to punch something. I simply can’t read his shit.

  • liberal

    I frankly don’t get the implicit claim of many of the commenters above that retribution should never be part of a civilized punishment.

    I’m not speaking of this in terms of defending the death penalty itself, but more generally.

    The notion that someone who killed this many people in cold blood maybe, perhaps, should get out on parole before he expires because by that point he may no longer be a danger to society is, to put a fine gloss on it, stupid.

    • christian h.

      And yet this is the ” stupid notion” that underlies European systems of administering punishment. So maybe you want to correct yourself and replace “stupid” by “incomprehensible to you”. Just like the American idea that the purpose of the justice system is to help them live out their fantasies of revenge is incomprehensible to me. Look, this is one of those things that is without a doubt culturally determined. I’m hoping the culture in the US can be shifted on this, but I wouldn’t say that it is “stupid”.

      • mpowell

        Oh, it’s stupid all right.

  • theophylact

    One point Lane accidentally makes is that in the case of monsters like Breivik the death penalty has zero deterrent effect; they expect to die and even look forward to it, either in the act or judicially.

    If you believe David Brooks, we’re all homicidal. Yet practically none of us ever kills anyone, and those who do either don’t think they’ll be caught or don’t care.

    • wengler

      The mistake would be to believe David Brooks.

  • If executing an innocent man is the worst-case scenario for proponents of the death penalty ….

    That’s the worst-case scenario? No, it’s not. It’s giving the state the power to decide who lives and who dies. It’s denying even a convicted criminal the opportunity for redemption — even if said redemption occurs in a lifetime behind bars. It’s allowing the state to fix an unjust system which predominantly convicts the poor and people of color.

  • Christopher

    Here’s two hypothetical situations:

    1. One of your loved ones is murdered, but because there is no death penalty, you know the killer won’t get the punishment they deserve.

    2. One of your loved ones is wrongfully convicted of murder and sentenced to death, and because there is a death penalty, you know the killers will never be punished.

    For a certain group of people, situation #1 is seen as more comprehensible, frightening and likely than situation #2.

    I’m honestly not sure why.

    • wengler

      Because in America we believe that white people are #1 and black people are #2.

  • DavidL

    I am opposed to the death penalty with ONE excerption; war crimes. It is one thing for my neighbor to gather arms and commit mass killing, 10, 50, 100 (Bundy, Breivik) before he is captured. It is a totally different thing, in my view, for those who wield the instruments of State: armies, navies, air forces, to order the killing of people in the absence of an attack or direct threat. Iraq, Libya as examples. These are the people who should be put to the rope.

    • Robert M.

      I was actually just thinking about a similar comparison, and it let me to ponder: the conversation about the death penalty is so often framed as “If we don’t have the death penalty, we don’t have anything special/different/sufficient to do with the worst of the worst.”

      But why must there exist an answer to the problem of what we should do with war criminals and mass murderers? What are the unacceptable consequences of simply admitting that no, there is no appropriate punishment we can administer in response to a certain kind of transgression–that, as a species, we lack the tools to deal with (e.g.) the kind of person that conceives, plans, and executes a scheme to murder dozens of children?

  • R. Porrofatto

    Wow, Chuck, I gotta admire anyone who can blithely proffer this:

    To date, there have been just 17 DNA-related death-row exonerations.

    as evidence that the case against the death penalty has been “overstated.”

    To my way of thinking, since there is no hell, life imprisonment is worse than death because it is the prolonged experience of misery. Anyone who thinks incarceration isn’t brutally punishing has either never known anyone in jail or has no imagination. That said, Brevik is a monster, and 21 years in a Norwegian prison doesn’t seem nearly enough, although I doubt if he will ever get out. If it were up to me, they would sentence him to 21 years with Pamela Geller, where his chances of survival would be measured in months.

  • Colin Day

    How violent are Norwegian prisons? What is the likelihood of Breivik surviving 20 years in prison without getting shivved?

  • Buzzcook

    Yet, on one point, Breivik is not talking crazy.

    There are probably several things Brevik is not talking crazy about. Doesn’t mean we should be listening though.

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  • I oppose the death penalty just because we can’t always be sure the person did the crime or did it in a manner that led to the court’s sentencing. If we had perfect information of all crimes and motives then no problem; we could setup objective death penalty sentencing rules and carry them out confidently.

    Since we don’t have perfect information, we let everyone live because prison is an experience of life. With death, all experience of life ends for the person and, morally, I can’t do that without perfect information and that will never be.

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  • sybs

    I’m amazed by some of the comments on here. When you take the lives of 77 people, you remove your right to life let alone a free one. Life in prison without parole is the absolute minimum, what is going on in this world with you liberal mugs? Maybe if you felt what it feels like to have a loved one murdered you wouldn’t have such a big mouth

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