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The Death Penalty and the Liberal Constitutional Agenda

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CromwellExecution

Julia Azari notes something about the 2016 Democratic platform that hasn’t gotten a lot of attention:

Finally, the Democratic Party has moved left in a variety of ways. This is exemplified by the Sanders movement, but it didn’t start there. During the Obama years, the party has moved left on cultural issues like gay rights, strengthened its rhetoric about economic inequality, and changed its stances on matters of criminal justice (for example, the platform plank that promises to abolish the death penalty).

It’s worth quoting the relevant passage in full:

We will abolish the death penalty, which has proven to be a cruel and unusual form of punishment. It has no place in the United States of America. The application of the death penalty is arbitrary and unjust. The cost to taxpayers far exceeds those of life imprisonment. It does not deter crime. And, exonerations show a dangerous lack of reliability for what is an irreversible punishment.

While most of the more ambitious parts of the new Democratic agenda have little short-term chance of happening, death penalty abolition is actually a realistic goal. Historically, state practices have a much greater chance of being ruled unconstitutional when they become outliers. This is exactly what’s happened with the death penalty. While a majority of states still have it on the books, actual executions have become concentrated in a handful of mostly reactionary states. (Of the states that formally have the death penalty, 31 did not execute anyone in 2015.) The fact that Bill Clinton’s two nominees — including Stephen Breyer, by far the squishiest liberal on the Court on civil liberties issues — have essentially come out for the position that the death penalty is categorically unconstitutional is another important signal. I’m not sure about Kagan, but I would be shocked if Sotomayor wouldn’t provide a fifth vote to rule the death penalty unconstitutional. If the Democrats can replace Scalia and Breyer and Ginsburg either remain on the court or are replaced by justices who share their views on the issue, it’s possible. Not inevitable by any means. But if public opinion continues to turn against the death penalty and the practice becomes increasingly rare outside of Texas — it’s possible. And at a minimum a Supreme Court with a Democratic majority is likely to place obstacles in front of the death penalty that might act to hasten its ultimate demise.

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  • jamesjhare

    If Sanders accomplished nothing else in his quest for the Democratic nomination he would still be a hero in my book. Ending the barbaric practice of capital punishment is a huge step toward real justice in this country and a real respect for life. I hadn’t had the chance to read the platform (I’m a normal person) and this is almost making me tear up. My party is now against the death penalty officially in our platform. I am proud to be a Democrat today.

    • slothrop1

      The platforms only matter to the extent that HRC is willing to, and has the means to, actually abide by the manifesto of her own party. Do you actually believe she would? No she won’t.

      • witlesschum

        Yes she mostly will, because she likes being reelected and needs the Democratic Party circa 2016 to 2020 to do so.

      • Memphis Jay

        Oh ffs, then why was it so important to fight for representation on the platform committee? Why was it important that the platform contain so many of Bernie’s core policies and values? Why did Bernie threaten to walk out of negotiations and threaten a floor challenge if he didn’t get the right deal?

        Bernie won a lot of battles and gained tangible results in the platform. He, Keith Ellison, and the rest of the committee members worked hard for this achievement and endorsed the platform. Now you’re moving the goalposts.

      • Lost Left Coaster

        Whether or not Clinton abides by the manifesto will depend in large part on public pressure.

        We should never vote for president in the hope that they will be nice to us once they’re elected. Everyone else — Wall Street, big business, defense contractors, etc. — puts plenty of pressure on politicians, and yet so many progressives seem to expect that politics means electing the person who already believes in all the things you believe and will then implement those things while the rest of us, I don’t know, play Pokemon Go.

        • Everyone else — Wall Street, big business, defense contractors, etc. — puts plenty of pressure on politicians

          Sometimes it’s pressure, and sometimes it’s a soothing caress.

          AUSTIN, Texas (AP) — Texas Attorney General Ken Paxton accepted $100,000 from the head of a company his office was investigating for Medicaid fraud despite internal rules at his agency that prohibit such gifts. Paxton is using the money toward his criminal defense on felony securities fraud charges. The Republican has pleaded not guilty. Internal rules in the Texas attorney general’s office say employees “shall never” take gifts from an entity “the employee knows is being investigated.” Paxton spokesman Marc Rylander said Wednesday that Paxton was aware of the policy but that it wasn’t violated.

          • so-in-so

            See, he’s HEAD of the agency, so rules don’t apply to him.

            At least as long as he remains a Republican.

          • Lost Left Coaster

            Wow. What a flustercluck.

          • N__B

            Wait: he’s using money from a fraud investigatee to pay for his fraud defense?

            • so-in-so

              It’s TEXAS baby!

      • brad

        So you’re dropping the pretense and just retweeting Trump now?

    • wengler

      I’m glad there appears to be no ‘but terrorists are wizards so they must be executed’ exceptions, though the executive appears to have dispensed entirely with the notion of a judicial process when it comes to alleged terrorists.

    • elm

      I’m not sure this part of the platform had anything to do with Sanders. Someone please correct me if I’m wrong.

  • Fascinating how there’s a reference to Bill Clinton in this piece, but you managed to avoid mentioning Hillary Clinton, who is the Democratic nominee.

    • sharculese

      I don’t see how. The mention of Bill is in the very narrow context that the Justices he put on the Court are opposed to, or at least uncomfortable with, the death penalty.

      The argument is that, if Hillary can put another anti-death penalty Justice on the Court, we get good things. But that involves speculating about good things to come and noting good things that have already happened.

    • Oh come the fuck on.

      • The first woman to be nominated by a major party to be President, at least 6 hours ago, and there has been not a single post about it.

        “Oh come the fuck on” indeed.

        • Pseudonym

          I think the site could benefit from some DNC open threads, but that’s a minor point; it’s not really news.

        • twbb

          That’s just the formalization of something that already happened months ago.

      • witlesschum

        Not enough of a hive of scum and Clinton-y afterall, apparently.

    • Ronan

      Absolutely. If there’s one thing there hasn’t been enough of its coverage of the democratic primary.

      • yet_another_lawyer

        The democrats had a primary? Strange, you’d think the media would have covered it.

        • wjts

          This one public access show I watch sometimes when I can’t sleep had some guy named Rocky de la Fuente on to talk about it a couple of months ago. I don’t think I’ve heard anyone else mention it, though.

        • MyNameIsZweig

          The democrats had a primary? Strange, you’d think the media would have covered it.

          Who’s running?

          • jim, some guy in iowa

            a chick, an old guy, and a…

            …a… um. I know there’s a third one. There always is

            • rea

              The guy responsible for making the Baltimore PD what they are today.

  • AMK

    Within the Dem party, there is no real counter-constituency for the death penalty. There are people passionately against it, and politicians who have said they support it as an easy way to punch hippies and show “law and order” bona-fides. But no Dem who is OK with it (myself included) actually cares enough about it to fight for it….to make its preservation a priority that might cause a rift and threaten to derail more important agenda items. In those circumstances under a Dem administration, the abolitionists will win out.

    • Hallen

      You’re probably right. I support the death penalty–in fact, I support the radical expansion of the applicability of the death penalty (and higher evidentiary standards, etc., which wouldn’t be too hard to impose in any world that I also ran by fiat, considering that I’m likewise way more into the possibilities of a surveillance state than literally any Democrat I know as well as most right-wingers)–but what the hell am I going to do with my objection to abolition? Vote Republican? Not damned likely. There are few single issues that would break me on my party–honestly, I can’t think of any offhand that they would ever support (I mean, are the Democrats of today or the foreseeable future going to try to resurrect the spirit of George Wallace?)

      The death penalty certainly isn’t one of them, even though I’m routinely flabbergasted by the lack of shit-giving that Democrats can have when confronted with the actual, plausible alternative to a no death-penalty state, which is a state that imprisons people for life in the dungeons we call correctional facilities, i.e., a death penalty that takes 40 years to end, and is carried out via torture.

      • SNF

        Yeah. I have mixed feelings about the death penalty because of how awful life in prison is. Particularly given the reality of prison rape. I’d honestly probably prefer death to getting a life sentence.

        But I do see this as a thing that’s likely to happen if we get a liberal SCOTUS majority. I mean, I’m not sure they would want to immediately reverse all the bad conservative rulings with 5-4 votes. They’ll probably focus on limiting bad precedent and slowly chipping away at it.

        But I could see them actually going all out against the death penalty relatively soon.

        • Arouet

          That sounds like a good excuse to fix the prison system, not to throw up our hands and kill people instead.

          • ThrottleJockey

            Are you suggesting we get rid of life imprisonment as well?

            Screw it why have prisons at all???

            You kill or rape somebody will send you to the corner of a room for a 10 minute timeout and then hope that you don’t do it again.

            • Linnaeus

              To “fix the prison system” does not mean “never imprison anyone for any crime ever”.

              ETA: Comment edited for clarity.

              • JohnT

                Indeed. Allowing prison rape, for example, is not a necessary and sufficient condition for maintaining a prison system.

                • witlesschum

                  Or widespread use of solitary confinement.

            • Arouet

              How you got that from my comment in response to another person talking about the awful conditions in prions, including, inter alia, prison rape, is surely a mystery right up there with the disappearance of Atlantis.

              • MyNameIsZweig

                Forget it, Jake – it’s ThrottleJockey.

            • witlesschum

              Maybe. Ideally we’d only give people life imprisonment who are really a danger to society and can’t be let out. Serial killers and practicing pedophiles and such. We all know the problems with how those decisions about who’s dangerous are made, though.

              Ideally, that would be great. The prison system for punishing and getting people to stop committing crimes doesn’t exactly have such a wonderful track record that it deserves unquestioning support. Maybe there’s no better system, but let’s see.

              That seems too short, but it’s worth thinking about whether or not we really want to say that if you take someone else’s life, yours is forfeit either through life imprisonment or through death. Maybe that’s the best thing for society and maybe it’s not.

              Whatever I’d do, it’d be based on rationally deciding what most benefits all of society as best I could, not emoting about the wonderfulness of either punishment or mercy.

            • JL

              As I’ve pointed out before here, most developed Western countries (and maybe most others? Not sure) do not have life imprisonment and get along fine somehow.

              • Domino

                And I would say that some of those countries have laws that are, frankly, too lenient.

                Luke MCormick was sentence to 7 years for killing two children after driving home drunk from a wedding reception. He ended up doing roughly 4 years in prison. That is way too short of a period for me.

                • Nepos

                  Why? Because you feel he hasn’t been punished enough? But what is the appropriate punishment for killing someone? 5 years? 10 years? And how does it benefit society to remove a productive member for that length of time, to satisfy some old testament version of vengeance?

                  Better to address the problem by putting him into mandatory treatment for alcohol abuse and taking away his right to drive for a period of time. And perhaps a fine or community service, as a gesture of reconciliation.

                  But nothing society can do to him can bring the children back. Why waste another life by locking up the perpetrator?

                  Rehabilitation and reconciliation, not revenge, should be the driving force of a legal system.

                • njorl

                  If you had absolutely perfect, instantaneous rehabilitation, you would still need to punish people. Deterring people from driving drunk saves more lives than rehabilitating those who do drive drunk.

                • Domino

                  Why? Because you feel he hasn’t been punished enough? But what is the appropriate punishment for killing someone? 5 years? 10 years? And how does it benefit society to remove a productive member for that length of time, to satisfy some old testament version of vengeance?

                  The benefit to society is that it acts as a deterrent. People need to be afraid of the consequences of driving drunk. They should be thinking “shit, if I hit and kill someone while driving, I’m going to prison for a while”. The law makes examples of people who break the law to scare others into not doing it. It’s not supposed to be an educational tool.

                  That said, rehabilitation is something that should have more of a focus, and the US does a terrible job at it.

                  Let me ask you this – what if people conclude that it logically is worth it to drive drunk? After all, they can deal with 2 years in prison and then back into society. You now cheapen human life by a significant degree – a human life isn’t even worth 2 years of time.

                  What is appropriate? I’m not sure, but it’s much longer than 2 years. What is an appropriate sentence to someone who rapes 2 women?

                • Lost Left Coaster

                  Let me ask you this – what if people conclude that it logically is worth it to drive drunk? After all, they can deal with 2 years in prison and then back into society.

                  People do not make these kinds of calculations before committing a stupid crime like driving drunk.

                  Also, while I am not opining on the appropriate length of a drunk driving sentence, in general I think that people who have never served prison time underestimate the impact of even a relatively short sentence like 1-2 years. A member of my extended family served just under a year for a nonviolent crime, and it ruined his life. He never recovered and died impoverished.

                • Cassiodorus

                  Pretty sure English law doesn’t require such a light sentence. And even the death penalty doesnt prevent light sentences. Ethan Couch (“affluenza”) got probation for killing four people while driving drunk in Texas.

                • A member of my extended family served just under a year for a nonviolent crime, and it ruined his life. He never recovered and died impoverished.

                  Cue up the chorus of infrequently-to-never-before-seen and/or predictable posters chanting “don’t do the crime if you can’t take the time” or however that goes. Probably no one will say “he got what he deserved” in so many words, though.

                • njorl

                  “People do not make these kinds of calculations before committing a stupid crime like driving drunk. “

                  They do, indirectly. I’m an alcoholic. I quit drinking 27 years ago partially because of the possible consequences. I never thought I would hurt anybody. I thought some asshole cop would pull me over even though I was fine. That’s how alcoholics think.

                  That doesn’t explain why a drunk driver who kills someone gets more serious charges than one who just gets pulled over. Both are guilty of the same act of volition. One just gets worse results.

                  The reason the killer gets a stiffer sentence is because part of the reason for justice is to satisfy the community to such an extent that they are not seriously tempted to take the law into their own hands. The state exacts vengeance to preempt the members of the community from doing so. It is a useful thing to do. As the community becomes less vengeful, then the disparity in sentencing between the drunk who kills someone and the drunk who doesn’t can be safely reduced.

          • SNF

            Yeah, I’m very in favor of reforming our prison system.

            I’m just saying that this is why I have mixed feelings. Our system of life imprisonment is much more of a moral problem than the death penalty, in my view. But this isn’t an issue where I would stand in the way of abolishing the death penalty or something.

            Also, I doubt it would actually be something that would be implemented, but I kind of like the idea of some sort of opt-in death penalty. Like if someone prefers death to the punishment that they’re given I’m inclined to let them kill themselves.

      • Arouet

        What possible legitimate justification could you have for wanting to “radically expand” a regime of state-sponsored revenge killing? Especially when we’re pretty damned sure no realistic evidentiary standard can guard entirely against the specter of false convictions?

        • What possible legitimate justification could you have for wanting to “radically expand” a regime of state-sponsored revenge killing?

          If trolling isn’t a legitimate justification, I don’t know what is!!!

        • DrDick

          What possible legitimate justification is there for the death penalty period? As the OP says, it absolutely does not prevent or deter crime, it is exorbitantly expensive compared to the alternatives, it is applied in a highly biased and racist manner, and a huge number of people sentenced to die have been proven innocent. I have had three friends murdered and I completely oppose the death penalty. It is not justice, it is revenge.

          • Arouet

            You don’t have to convince me – in my ideal world we wouldn’t even have life without possibility of parole. I was just… shall we say a bit curious to see someone on a site like this advocating for its expansion.

          • twbb

            A lot of those things are not inherent characteristics of a death penalty, though. For example, the cost issue is because of all the multiple layers of due process, which many very-pro-death-penalty people would love to get rid of anyway. I mean, I think China saves money when they execute people instead of sentencing them to imprisonment. The racial disparities are trickier but potentially fixable.

            I’m kind of on the fence about the death penalty generally, though it honestly does not figure much into my political choices. I am against the Texas-style executions where you kill someone because of a botched robbery. Sadists who torture and murder people, that’s something else.

            • Arouet

              What about innocents who are convicted of being sadists who torture and murder people? You’re never going to have perfect justice.

              • twbb

                Like I said, I am on the fence, and would not argue with that.

            • DrDick

              Actually all of those are inherent to the application of the death penalty in the real world. There is no Platonic ideal justice in the world, only flawed and biased processes that disproportionately screw the powerless while letting the powerful go free.

        • yet_another_lawyer

          EDIT: This was non-responsive, never mind.

      • Lost Left Coaster

        “Radical expansion” — such as?

        • Hallen

          “Expand the applicability.” The idea that the death penalty is only palatable in the context of a completed intentional homicide, but not other crimes that damage lives beyond repair*, strikes me incredibly simplistic to the point of being childish, and must be founded upon the premise that revenge-for-its-own-sake (or punishment-for-its-own-sake) is a legitimate State interest, which I don’t agree with anyway, and is certainly not the *only* grounds on can have for supporting the death penalty. I mean, if I thought revenge and punishment of its own citizens were worthy motives for a State to express, then I’d just support prisons.

          *Things like some subsets of abuses of public trust, grave financial crimes, rapes, and attempted murders, if you need a list. Beyond obviously, we’d need careful drafting to institute an expanded DP regime, and I’m not the expert to do that. On the other hand, especially given the transparent shittiness of our current regime, I also remain convinced that expansion is infeasible and undesirable without the safeguard that no one ought to be executed in the absence of a question-free conviction, obtained at an evidentiary standard beyond a reasonable doubt.

          • Origami Isopod

            The problem with the death penalty for rape is that it encourages the rapist to kill the victim. In for a penny, in for a pound.

            Also, too, we have a hard enough time bringing rape cases to trial, let alone convicting rapists, due to rape culture. Making rape punishable by death will not improve this.

          • William Berry

            Execution for non-violent crimes, then?

            Go crawl back under your rock.

      • William Berry

        The argument that life in prison is worse than the death penalty is not just a tiresome cliche, it is pure bull-shit.

        Yes, our prisons are (for the most part) horrific. But if life in prison is so much worse than the death penalty, explain* why we see appeals of the DP at virtually 100%.

        *Actually, don’t bother. You can’t.

    • Pseudonym

      I’m for the death penalty in theory for people like OBL, but in practice it just doesn’t work in this country. But how much of a priority should it really be for Democrats, or in particular Supreme Court candidates?

      • Domino

        It can work in this country – Timothy McVeigh is dead. Is anyone upset he is no longer alive?

        I keep shifting on this topic. For a while I was squarely in the anti-death penalty side. But it is hard for me to take it off the table in the most heinous of crimes (and the fact that Anders Brevik just won a lawsuit about his treatment is a shame and embarrassment).

        I suppose where I currently stand is “should be available, but in practice rarely used”.

        • Pseudonym

          Timothy McVeigh is dead; so is Cameron Todd Willingham.

          • Linnaeus

            And so is Carlos DeLuna.

          • Domino

            Is there enough evidence now to exonerate him, or is it just highly likely he was innocent?

            Further, didn’t he confess? I admit to not being on top of all the facts regarding the case.

            • vic rattlehead

              Well shit, if *that’s* the standard we should apply we’d be executing people left and right.

              And if you don’t know the facts of the Willingham case you should probably shut your mouth. Bloodlust with a command of the facts is one thing. Combined with your ignorance it’s just pathetic.

              • Domino

                Honestly eff off man. I’m sympathetic to people against the death penalty, but purists like you just trash your own cause.

                I didn’t claim anywhere where Cameron deserved the death penalty, nor will I ever claim it’s always used evenly or doesn’t have the potential to be abused.

                • Lost Left Coaster

                  It’s just interesting because Willingham was exactly the kind of case where people would say that “only the worst of the worst” deserve it — he was convicted of murdering his children. And the case against him seemed to be airtight. And yet, years later and in the hands of competent investigators, the whole case fell apart, and it turns out that not only was he innocent, but no murder was committed at all, by anyone — the deaths were accidental. And yet that wasn’t enough for Rick Perry to commute his death sentence, and he’s dead now.

                  So to appeal to the Willingham case isn’t exactly being a “purist,” but rather, it is to point out that even the most egregious-sounding case may be full of holes.

                  Also, I’m not sure why so many people reference Osama Bin Laden as a justification for keeping the death penalty — a man who surely would have relished being made a martyr at the hands of the US government. Had they actually captured him, the best punishment by far would have been to let him die in obscurity, alone, in a Supermax prison, decades from now.

                • Origami Isopod

                  purists

                  When we’re talking about ending someone’s life via the machinery of the law, I’d prefer we lean on the “purist” side a little.

            • Arouet

              You are aware that even confessions are notoriously unreliable, right?

            • delazeur

              I’m not sure you’re aware of this, but “highly likely he was innocent” is sufficient to consider someone innocent in fact under our justice system.

              It is also well established that police are fairly good at getting false confessions out of people. I don’t trust any confession that isn’t made in open court or supported by material evidence.

              • Domino

                Would his conviction have been overturned?

                Is there enough evidence to conclusively state he did not do it? Because we are talking about overturning a conviction, not a regular court case. “Beyond a reasonable doubt” was already established and crossed.

                And I agree that confessions are not great at all to go by. That they are not reliable, and that the human mind can remember things that did not happen (I have a fascination with memory, and have read several books on the topic). But to say you don’t trust any confession means we literally cannot trust anyone’s word.

                Should a confession that comes out of 16 hours of an interrogation be considered highly suspect? Absolutely.

                • MyNameIsZweig

                  Is there enough evidence to conclusively state he did not do it?

                  What would that even look like, exactly?

                • Origami Isopod

                  Is there enough evidence to conclusively state he did not do it?

                  You mean, proving a negative? And, also, shifting the burden of proof?

                • William Berry

                  Forget it, folks, he’s read Scalia.

                  [He had a trial, was found guilty, and executed. What more do you goddamn’ purists want?]

            • Scott Lemieux

              Is there enough evidence now to exonerate him,

              Yes. Or more accurately, the state had no case against him at all. The prosection was based on worthless junk science, worthless pop-psych from a professional death penalty advocate, and the ridiculous, uncorroborated story of a jailhouse snitch. You can’t to prove to an absolute certainty that Willingham was innocent — he was there, there was a fire, it killed his kids — but Texas has nothing to show that it was arson.

              Further, didn’t he confess?

              No. He could have pleaded down to avoid the death penalty, but didn’t — because he didn’t do it.

              • Domino

                Thank you Scott.

                Based on all of that? Damn. That makes a case for people to be disbarred for doing such shoddy work. A tragedy added on top of children dying.

                But with all the crap that the prosecution had, 12 people voted him guilty beyond any reasonable doubt, no?

                That makes me angry.

        • yet_another_lawyer

          I think this is right. Executing a McVeigh, Root, or Tsarnaev has the same moral value as putting down a rabid dog or killing a cancer cell. “Legal, rare, and used only when there is absolutely no doubt of guilt” is an appropriate compromise.

          • so-in-so

            We already claim conviction is “beyond a reasonable doubt”, and know full well that innocent people get convicted (and probably executed). Are you sure there is an ” absolutely no doubt of guilt” without the killing happening in court, in front of the jury? Even video can be edited or interpreted differently.

            • Scott Lemieux

              “Legal, rare, and used only when there is absolutely no doubt of guilt” is an appropriate compromise.

              As so-in-so says, this is not a meaningful or enforceable legal standard. The death penalty is never going to function like this in practice ever. (Even in states where people are rarely executed the arbitrary exceptions are normally people who have given up their appeals or have the worst lawyers, not the people guilty of the most heinous offenses.)

              • Domino

                Reading the comments – it would seem I’m trying to maintain a stance that, in practice, is not possible.

                I still am not 100% on board with removing the death penalty, but I don’t oppose people who want to eliminate it.

        • leftwingfox

          But that hasn’t happened.

          I don’t think it’s EVER happened.

          As long as capital punishment is available, there is always a push to expand it’s applicability.

          We already are facing a capital case of a man who, under castle doctrine law, shot an intruder bursting into his home. That intruder was a cop in a no-knock raid on the wrong address.

          http://www.kwtx.com/content/news/Killeen-New-trial-date-set-for-man-accused-of-killing-police-officer-364676711.html

        • Scott Lemieux

          I’m sensing an excluded middle between the death penalty and the sentence given to Anders Brevik might exist.

          • Bootsie

            The Phantom Zone?

          • Frequently Confused

            There’s a middle ground between the death penalty and three room suite? Go on.

    • Jon_H11

      Agreed. I’d have to say that I support capital punishment for especially heinous murders with extremely strong evidence (basically uncoerced confession or something on par with that). But I’m far more disgusted by the form most support for it takes than I am convinced of its necessity, and it’s maintenance doesn’t even register on my list of important issues.

      • Arouet

        The problem with that is that almost no quantum of evidence exists in real life that provides complete certainty (or even near certainty) of guilt unless the person is caught in the act – and even then, there may be factors at work that mitigate criminal responsibility which are not immediately obvious.

        Life in prison is revocable in part until the moment someone dies. Death is permanent.

        • ThrottleJockey

          Dylann Roof. Osama bin Laden. The Aurora Colorado shooter. Oklahoma City bombers. The San Bernardino shooters. The Planned Parenthood shooter. The Newtown shooter . The South Carolina cop who shot the black man in the back. The cop who shot Tamir Rice. The Texas men who killed James Byrd by tying him to a car and driving until body parts started coming off.

          These are all killers who richly deserve death, are plainly guilty, and for whom I’ll shed no tears.

          If someone plainly has done something which deserves death why not give it to them?

          • Linnaeus

            And some that die deserve life. Can you give it to them?

            • ThrottleJockey

              Apples and oranges, one has nothing to do with the other.

              What’s the rationale for why Dylan Roof should continue to breathe air?

              • Pseudonym

                You think Osama bin Laden and Timothy Loehmann are equally deserving of death? That should be reason enough to oppose capital punishment.

              • Linnaeus

                My point, that I perhaps did not make as cleverly as I had hoped, is that application of capital punishment will be done erroneously in some instances. This would happen under the best of circumstances, and we have enough examples of problems in American criminal justice systems to know that these conditions do not obtain in the United States.

                I have no love for the likes of Dylan Roof. I am, however, willing to keep people like Roof alive – in prison – if it means that the chance that someone will be wrongly executed is eliminated.

                • N__B

                  In addition to your point – which I agree with, obviously – I see no reason to give killers their martyrdom.

                • jim, some guy in iowa

                  what’s ironic about this is that ThrottleJockey has been on the receiving end of police misconduct in ways you and I (probably, I may overstep here) haven’t and yet he’s the one saying, more or less like Scalia, that killing some innocent people once in a while is worth it if we get to kill guilty people

                • ThrottleJockey

                  I’m down with “better to let 10 guilty men go free than to wrongly incarcerate 1 innocent man.” But at some ratio that line of logic falls apart–even in the case of execution. I, for instance, wouldn’t say its better to let 1000 guilty men go free than to wrongly incarcerate 1 innocent man. Same with the death penalty.

                  My view is that it should be used exceedingly rarely and that each state should have a maximum number of people it could sentence to death each year. A state the size of Texas might sentence to death the worst 5-10 defendants on trial. A state like Kansas might get 1-2 defendants it could sentence. This is what I mean by exceedingly rare.

                  Jim–Understanding that some cops are racist and/or stupid, I believe that democratic principles occasionally come into conflict. When they do, you try to balance them. This is how I think we should balance them.

                • Arouet

                  That is the worst example of arbitrary justice you could possibly have chosen. What, I get death just because everyone else has been on their best behavior this year? That’s unconscionable, not to mention unconstitutional.

                  Also, the question isn’t letting guilty men go free, it’s whether to execute people or keep them in prison. Better to keep everyone adjudged guilty and sentenced to at least LWOP imprisoned unless new evidence emerges than to kill one innocent? Of course. Obviously.

              • Aaron Morrow

                At the risk of confuting false positives and false negatives on one hand and false positives and false negatives on the other…

                Apples and oranges, one has nothing to do with the other.

                This is a blatant lie. Increasing the specificity of the test that defines “plainly has done something which deserves death” lowers the probability of false positives, but raises the probability of false negatives.

                Would you prefer a system that leans towards murdering innocent people or a system that leans toward keeping guilty people alive? I abhor the former, so I choose the latter.

              • vic rattlehead

                This is hysterical. Someone points out the uncontroversial fact that you can’t “unkill” someone, and thus, if you wrongly execute someone (and there are literally dozens of people who have been exonerated, and probably several in Texas alone who were executed of crimes they didn’t commit or if you want to be difficult, in Willingham’s case if you’re intellectually honest you have to *at least* concede that he was convicted in part based on bullshit science) you can’t take it back.

                And what does our resident authoritarian say? Instead of acknowledging this reality and saying something civilized like “I recognize the real risk of executing innocent people but I believe the value of the death penalty outweighs this,” he just shrugs it off and actually has the gall to say “apples and oranges.”

                I’ve come to realize it’s not an either or. TJ is BOTH an intellectually lazy blow hard AND an authoritarian. Winning combination.

                • ThrottleJockey

                  I recognize the underlying argument, but I don’t think you’re adequately weighting the injustice of keeping someone like a Dylann Roof or Osama Bin Laden alive, and that’s what my response was meant to indicate.

                  My idea is that rather than abolishing the death penalty we simply restrict it to the most heinous cases. Perhaps as few as 10-30 people each year might be sentenced to death. From 2010-14 the Feds sentenced 10 people to death. So an average of about 3 people each year. That *seems* about right in terms of rarity.

                • Arouet

                  Would it give you the sads to have them die in jail instead? :(

                • muddy

                  It’s a three-fer. Those 2 plus plain boring trolling. Does TJ ever comment where she doesn’t take the extremist view to draw the most comments?

                  I never feel like it’s an actual person, it’s more like a performance piece. But who knows who’s who on the internet. At least she has given over the creepy use of nyms to begin comments since that was discussed in here recently.

                • twbb

                  I don’t see how TJ’s argument is “extremist.” And I don’t know if you can really accuse someone of being contrarian when he’s arguing with a self-selecting group like the LGM commentariat. He has substantial disagreements with a lot of people here, but it’s not like a lot of people here don’t tend to take the same or similar positions on issues.

                • (((Hogan)))

                  Does TJ ever comment where she doesn’t take the extremist view to draw the most comments?

                  It’s not that he takes extremist views so much as that he attributes extremist views to anyone who disagrees with him. “Oh, so you’re against the death penalty? You must want to give OBL a big bouquet of roses and a house at the beach.” He’s never seen a middle he didn’t want to exclude.

              • Colin Day

                What’s the rationale for why Dylan Roof should continue to breathe air?

                What if air has a slow acting, painful poison? OK, I’m bitter. I was Rev. Pinckney’s calculus instructor.

              • Lost Left Coaster

                What’s the rationale for why Dylan Roof should continue to breathe air?

                One of the high costs of living in a society that at least aspires to being a part of higher civilization is that we simply don’t get to mete out everything that everyone deserves. Dylann Roof doesn’t deserve to live. He really doesn’t. But the problems with the death penalty are bigger than him. In the end we should try and live with an outcome that protects society from further harm at his hands. Life in prison would deliver that. There is no punishment, not even death, that would actually make up for what he did. There is no way to make up for taking a life. The victims’ families will never be made whole. And many victims’ family members say that seeing the killer executed does not make them feel any better (of course many others say that it does, I’m just saying it is not a universal sentiment).

          • so-in-so

            The fact that some of those might get the death penalty, some not, and some will not even face charges that could possibly result in the death penalty is reason enough by itself to do away with it.

            OBL and Alwaki were not tried, convicted and executed, they were killed under circumstances where their arrest was presumably impossible or too dangerous to attempt (OBL is a bit questionable, I don’t know why the SEAL choose to shoot him rather than get him out as a prisoner).

          • Arouet

            And how exactly are you going to prevent some prosecutor in bumblefuck South Texas from deciding that the perp he’s just sure did it because that’s the kind of guy he is from prosecuting his case as if it’s one of those you highlighted?

            Putting aside the fact completely that whether anyone “richly deserve[s] death” is an extremely subjective judgment. Thankfully, my District, my former State (the site of one of the massacres you mentioned) and many others have decided no one deserves death at the state’s hands.

            • vic rattlehead

              At the very least, Texas should not be allowed to execute people anymore. They’ve demonstrated that they can’t handle the responsibility.

              • ThrottleJockey

                I could go along with that. Texans really don’t give a fuck about life. (Karen24 excluded)

          • Solar System Wolf

            The people of Colorado had the opportunity to sentence the Aurora shooter to death, but they did not. If he couldn’t get the death penalty, who could? That makes me think public opinion is shifting away from its use, at least in this state and apparently elsewhere as well.

          • delazeur

            I believe the death penalty is reasonable for those cases, but I also don’t believe it is possible to create a system where people like that get executed but potentially innocent people do not. I would rather see people who could reasonably be executed spend the rest of their lives incarcerated than see people executed who might be exonerated in the future.

            Ultimately, I oppose the death penalty not because I believe it is unethical in principle but because I believe it will always be unethical in practice. It is also a disturbing statement of infallibility: “We are making this determination of guilt, and we are removing the option to change our minds in the future.”

            • ThrottleJockey

              If its politically possible to actually abolish the death penalty is politically possible to reform to avoid the issues you mention. You could cap the number people a state could sentence each year. You could take away the authority from local DAs and require State AGs to decide. You could allow in evidence of how racially biased the practice has been in the past. There are a wide number of things you could do to restrict its use to the absolute worst of the worst.

              • Arouet

                The problem isn’t that it’s politically impossible, it’s that it’s factually impossible to create a system immune to abuse.

              • delazeur

                I have zero confidence in any of your proposals actually preventing abuse of the death penalty. Maybe limiting abuse. Maybe.

                • so-in-so

                  Yeah, State would be really limiting – in Texas.

          • (((Hogan)))

            Even granting that they deserve to die (we all got it coming, kid), does, say, the criminal justice system of the Commonwealth of Pennsylvania deserve to have their lives in its hands? Fuck no.

        • Jon_H11

          An open confession combined with significant inculpatory evidence and lack of mitigating factors?

          More or less reserved for active terrorists or B-T-K style serial killers.

          • Lost Left Coaster

            Right, but in a lot of those cases, the defendant pleads guilty in exchange for no death penalty. At which point you would have to decide that not accepting a guilty plea and forcing a long, drawn out, expensive trial that may be a media circus is the better choice than a guilty plea, just to ensure that the defendant receives the death penalty rather than life.

            • Jon_H11

              I think that there are some, admittedly very rare cases, where that’s a reasonable choice (Dylan Roof comes to mind), as well as strikes against terrorists which don’t (legally) fall under the umbrella of war. Again, not a huge issue for me and I can easily see the false-positive argument and the actual practice swamping that in the former case. I don’t know that I’ve found convince arguments against the latter.

          • (((Hogan)))

            We’re getting into “ticking time bomb” territory here.

            • N__B

              Executing prisoners by time bomb would seem to me to fall into the “cruel and unusual” territory. IANAL is appropriate here, although that is, let’s face it, an unfortunate acronym.

    • ThrottleJockey

      Platforms are written outside of just the context of the Democratic Party. The general election context also matters. When I start saying Democratic politicians saying in their speeches and campaign ads they oppose the death penalty I’ll believe this movement is going someplace.

      • Katya

        Well, they just picked a Catholic VP nominee who is on the record as being opposed to capital punishment.

        • ThrottleJockey

          If I’m not mistaken wasn’t Obama opposed to the death penalty in ’08 but said that he would uphold it?

          There’s a big difference between that and running on the proposition that we should abolish it. It’s like Kaine saying her personally opposes abortion but would support it.

          • Scott Lemieux

            Bill Clinton supported the death penalty, but both of his Supreme Court nominees think it’s unconstitutional.

      • Aaron Morrow

        I used to agree with this about platforms, but I’ve been questioning myself ever since Sanders believes that it is not true. What does he know that I don’t? I know he knows things about politics that I don’t understand.

        I do suspect that a Democratic President will evolve in office rather than running on the issue, but let’s find out.

  • This was a big deal for me. I suppose this is the congenital Catholicism in me, but the death penalty is loathsome and I was heartened to read such a strong argument for its abolition in the platform — with no Kerry-style “except for terrorists” hedge. I know Clinton has a similar hedge, but the platform gives me hope that at least one premeditated form of legalized murder is nearing its end.

    I hope someday within my lifetime to witness a Democratic platform that advocates as strongly for peace abroad as this one does for the abolition of the death penalty.

    • Lurker

      I am from a country that has abolished the death penalty. In fact, peace-time death penalty was abolished here in 1825. (Technically, it had an exception for political crimes but that was never used prior to WWI, and our civil war.) We have not descended to lawlessness. Indeed, death penalty is, in people’s minds, closely linked to war and armed anarchy, as death has only been used as a sentence during wars.

      Technically, the only case where I could support death penalty would be for enemy spies during as war, because those spies could reasonably expect to be freed after the war as part of peace settlement. In their case, only death carries deterrence value. On the other hand, death is a poor deterrent anyhow, so human right to life trumps the deterrence and revenge arguments.

      • JohnT

        Do you mean spies (citizens of another country) or traitors (citizens of the country in question)? Personally I find the tradition of executing enemy spies, like the British spy John Andre in the Revolutionary War or the German landing party sent to the chair in 1942, to be wrong. I think there is a case to be made for very serious cases of treason along the lines you suggest.

        • Lurker

          I mean, primarily, traitors. The problem is that there is a historical precedent for amnesty. After we concluded a peace with Soviet Union in 1944, one of the terms was that all persons who had committed crimes to support allied war effort be pardoned. This meant that all pro-Soviet traitors and Soviet spies were immediately set free.

          With regard to deserters, the get-out-of-jail card was different. A deserter was pardoned only if they made a claim that they had deserted in order to commit treason. I remember reading about a case where a deserter needed to serve the whole term of sentence. He had been asked: “OK, so did you desert in order to serve the cause of the allied powers?” – “No, I was just afraid.” – “Really? You get free if you answer yes.” – “No, really. I was just afraid.” – “All, right, so you stay in prison.” The guy was mentioned to be a slightly retarded young Sami man from rural Lapland. Fortunately, he had not been sentenced to death.

        • wjts

          Personally I find the tradition of executing enemy spies, like the British spy John Andre in the Revolutionary War or the German landing party sent to the chair in 1942, to be wrong.

          The story of the executed German saboteurs is kind of sad, mostly in light of the fact that several of them tried to turn themselves in as quickly as possible.

      • ThrottleJockey

        What about high treason, mass murder, or terrorism?

        • Scott Lemieux

          mass murder,

          Cameron Todd Willingham still would have been executed under your model statute, then.

          • Pseudonym

            ThrottleJockey wants the death penalty for the cop who shot Tamir Rice. I think attributing a model statute to him is awfully generous.

            • ThrottleJockey

              A grown man pulls up to a child he’s never seen before and kills him within 2 seconds of seeing him. Yep, fry that sucker.

              • so-in-so

                The fact that it will never happen is another reason to drop the penalty altogether.

        • Lurker

          I don’t support death penalty even in cases of mass murder. The Norwegians showed that an open, democratic society can manage condemning mass murders even if they don’t have a life sentence available.

          In the Finnish case, the defining test for a non-death-sentence regime came early: in 1826. A Finnish farmers son killed his father, mother, sister and a number of total strangers in a series of murders, 12 in total. He confessed but showed no remorse. Despite the death penalty being still on books, Emperor Nicholas I, Grand Duke of Finland, maintained his policy of commuting life sentences to imprisonment. The particular offender was treated particularly severely, however. He was immured into a solitary cell which had a wide open window opening into semi-public street (inside a fortress). The prisoner survived for three years before dying of pneumonia.

          Since then, the worst case of mass murder where the suspect did not commit suicide, was probably the murder of four police officers in 1960’s. President Kekkonen pardoned the murderer of his life sentence after some 14 years. He lived quietly for around 20 years thereafter until he murdered his wife, who had faithfully waited for his release, in a fit of drunken rage. The man committed suicide during his second life sentence.

          However, in a case where a habitual child rapist raped and murdered two small girls, our system was not quite as lenient. After he was pardoned from life imprisonment, having served about 15 years, the man was civilly committed to a state mental asylum for criminal or extraordinarily violent patients. He died there a couple of years ago.

      • wengler

        Many US states abolished the death penalty in the 19th century as well. Its very much a preference that has zero effect on crime. In fact it wouldn’t surprise me if the danger of being murdered by the state spurs more false confessions.

        • Linnaeus

          The state that I grew up in was the first in the US to do it. Why? Because a man was executed for a crime that he didn’t commit.

          • rea

            Michigan,right? Abolished it on statehood, in the first state constitution.

            • Linnaeus

              You are correct, sir.

        • farin

          I assume that that last point counts in its favor among a certain group.

    • Pseudonym

      The only justification I really see for the death penalty is if keeping a murderous political terrorist alive might provide an incentive for innocent civilians to be killed or held hostage to force their release. But even in that case, situations like the Good Friday Agreement make me second-guess that.

      • ThrottleJockey

        Had Venezuela killed Hugo Chavez for committing treason instead of letting him run for president they might be would probably be better off today.

        • Pseudonym

          I mean, all else being equal, had the US killed Donald Trump for committing treason by advocating birtherism this country might be better off today, but all else is never equal.

        • witlesschum

          I guess I doubt that in the specific, too. Maybe Chavez was lucky to die when he did, but the country seems to have been significantly worse after he was gone.

        • wengler

          You do know Bush killed more people than Hugo Chavez, right?

          • (((Hogan)))

            If we’d executed Bush when he failed to show up for his National Guard service, we’d probably be better off today.

    • ThrottleJockey

      Why do you oppose the “except for terrorist” thing? Is there anyone who doesn’t think that Osama bin Laden got what he richly deserved?

      Is there someone who thinks that Anwar al-awlaki should still be walking the Earth instead of perished by drone?

      This seems to close to pacifism.

      • JohnT

        In my case it’s because I believe that the death penalty is wrong in point of principle and, practically speaking, life in prison without parole seems a harsher actual punishment than death, particularly for people who genuinely seem to believe that death is a route to heaven.

        I don’t see where the connection to pacificism sits, by the way? If a terrorist is armed,free, and clearly identified I for one have no objection to shooting them dead on the spot as per the normal usages of war. I do object to taking their lives when they are unarmed and strapped down.

        That has nothing to do with my concern for their physical and mental wellbeing – it has to do with my concern for our own mental wellbeing. Killing helpless individuals – even if they were not helpless once – seems so wrong and morally corrosive to me that only the most enormous practical benefits – as per the ones Lurker was discussing – would seem to justify it.

        • Katya

          +1 to all of that. It’s not about what they deserve, its about what kind of people we want to be.

          And I find life in prison more than adequate punishment. Max/Supermax prisons, even without abuse, are awful places to live.

          • Lurker

            I wholeheartedly agree. Not having a death penalty is primarily about us, not about criminals.

            I want to live in a society that respects everyone’s right to life. That right cannot be curtailed nor balanced in cases where no lives are immediately threatened or the state sovereignty at stake. In criminal sentencing, neither case ever exists.

            There are, no doubt, people who don’t deserve to live. The point is that we don’t have the right to decide that a certain person is such a one.

        • ThrottleJockey

          My connection to pacifism was merely an inference/hunch…it might have nothing to do with opposition to it.

      • DrDick

        This seems to close to pacifism.

        You say that as though it was a bad thing. You consistently support people who follow the teachings of the Rabbi Yeshua bar Yosef, who made it central to his teachings.

        • ThrottleJockey

          You raise a good point. I support the right of people to practice their 1st Amendment right to freely worship…its one right to be balanced against other rights.

          For myself, I long ago decided that it would be wrong to use my own personal religious beliefs in deciding public policy. For instance my church considers homosexuality sinful. In contrast I’ve always supported gay marriage.

          • (((Hogan)))

            Wait . . your church thinks homosexuality is sinful, and you support gay marriage, but the first one is your “personal religious belief”?

          • DrDick

            My point, which you obviously missed, is that given that it was a central tenet of your founders teachings, all supposed Christians are supposed to be pacifists (as well as socialists).

            • Lurker

              I am a reserve officer, and hope I can call myself a Christian. The point you make is a good one. The Sermon on the Mountain, in particular, requires absolute non-violence. However, you miss certain other biblical passages, especially in Pauline letters, which do, in fact, call for Christians to serve the worldly society in normal capacities, for example as soldiers.

              The Lutheran doctrine on this is clear: a Christian shall, and in fact is obligated to, serve secular society as a soldier or as a judge, though it might mean taking a life from another, as long as this is done to pursue justice and in the service of legally constituted government.

              If you want to tell Christians what our religion holds as tenets, you should not only read Gospels but also get acquainted with the whole of the Bible and the way it has been read during the last 2000 years. The readings have been surprisingly constant.

      • Arouet

        Because if you want to see how easy it is to label your political enemies terrorists, just look around the globe. Do you trust Donald Trump appointees to have say in determining when to seek the death penalty based on the application of a nebulous criteria like involvement in terrorism?

        You either don’t understand or don’t care that there’s no way to implement this that makes it invulnerable to abuse.

      • Pseudonym

        Whether or not they were justified, those were acts of war, not judicial punishments.

        And if they had surrendered, then executing them on the spot would have been a war crime.

      • so-in-so

        First think prosecutors did after the passage of the Patriot act was to look for ways to apply it to normal criminal cases. We can safely assume limiting the death penalty will result in many more “terrorist” cases.

      • Pacifism is my ideal, yes. We give states the power and the duty to initiate force in order to protect the peace and make a better world. It is the responsibility of the state to use that power with prudence and moderation.

        The standards for military operations are different than for law enforcement. Sometimes the only option in war is to kill the enemy. This is a reason to seek to avoid war whenever possible. The state has a particular duty to those who live under its jurisdiction, and there is a huge difference between killing someone in combat and killing someone you already have disarmed and imprisoned.

        Osama bin Laden died during a military raid. That’s an understandable circumstance. I would have rather seen him stand trial, and if he had surrendered, killing him would have been murder.

      • wengler

        This seems to close to pacifism.

        I have to keep saying this because it doesn’t seem to be sinking in. Capturing Osama bin Laden alive would’ve been a far better outcome because it was important to prove to people that he wasn’t a wizard.

        Terrorists are not wizards. They don’t have the power to magically rain fire down from the sky and kill thousands of people.

        The policy of incinerating terrorists with missiles has been a very poor way of dealing with them because it has just created a core of the most ruthless, insidious and violent people that are experienced in dealing with rapid leadership change.

    • cppb

      I hope someday within my lifetime to witness a Democratic platform that advocates as strongly for peace abroad as this one does for the abolition of the death penalty

      Yeah, the discussions about terrorists has kind of been talking around this, but I think it’s important to note that this platform plank, while important and an unqualified good, is only about opposing the death penalty for those convicted of crimes under the U.S. judicial system. It says nothing about the death penalty for people who are convicted without a trial by the executive branch (or for those who happen to be nearby when the robot executioner comes), which, as far as I can tell, a majority of the country supports.

  • “Deft penalty” (last paragraph) needs correction.

    • N__B

      The delft penalty, where the court orders all of your china broken.

      • (((Hogan)))

        The deaf penalty: earplugs without parole.

  • The death penalty is nothing more than state sanctioned revenge. Even if that was acceptable, the state has a fairly strong track record of enacting revenge against the wrong people. That alone is enough reason to abolish it.

    • ThrottleJockey

      I agree, and while I think it should be rare I can’t argue that there shouldn’t be a place for state sanctioned Revenge.

      After he’s tried and convicted why should Dylann Roof still breathe air?

      • jim, some guy in iowa

        it seems odd- or maybe just childish- that you want revenge, rather than justice or punishment

        • You’ve obviously never met TJ before.

          .

        • Domino

          Has anyone come up with a definition of justice that doesn’t involve some form of revenge?

          I mean, it’s not like we convict people on crimes they were about to commit (Yes I know there is “conspiracy to commit ____” laws, but the person had to actively engage in plotting to commit a crime).

          • jim, some guy in iowa

            that’s probably true (about defining justice) but I think that should be covered by “punishment”. I think if we allow ‘vengeance’ to be a consciously chosen goal then we’re opening ourselves up to be tolerant of abuses of the system- not just wrongfully executed people but also abusive jail/prison conditions. I might be playing word games here though

            • Domino

              For me, it’s trying to find a balance – if someone is murdered, some family members usually will demand justice – which is revenge for the death. Not everyone, but most people. I think that is a natural reaction, and I don’t think it should disqualified out-of-hand.

              In part I don’t agree that “eye for an eye” should be dismissed – that is a balanced punishment.

              Of course, how do I then have an enormous amount of respect for MLK and Mandela? 2 people who never advocated a balanced justice?

              I don’t have an answer to that question ATM.

        • ThrottleJockey

          Hey, Jim. I think the criminal justice system sometimes should seek rehabilitation, sometimes should seek punishment, and sometimes should seek vengeance. There are times when vengeance is the appropriate expression of outrage at a particularly heinous crime. If there’s no question of guilt, then if its richly deserved, serve it up.

          But to be honest, its not a childish belief. When I was a teen and young adult I strongly opposed the death penalty. I didn’t begin to moderate my views until the last 5-10 years.

          • Arouet

            It is pretty damn childish, on the other hand, to think there’s a way to craft this where it will only be used where there’s no question of guilt.

      • Because it would be a human rights violation to murder him.

        • N__B

          For some people, that’s a feature not a bug.

      • rea

        After he’s tried and convicted why should Dylann Roof still breathe air?

        The objection to the death penalty is not so much what it does to the likes of Dylann Roof as what it does to us.

      • witlesschum

        Explain what good you think it does to kill him?

        It won’t be justice for his victims or their families, there nothing that can make them whole again unless the religious are right and there’s a world after this one. Deterrence in general is either nonexistent or pretty hard to measure and seems particularly hard to believe it be effective at discouraging political crimes like Roof’s. Some sort of abstract notion of justice for society to see being done is something, but killing Roof isn’t the only way to do that.

        • wjts

          Explain what good you think it does to kill him?

          That’s obvious. And in addition to the clear material benefits outlined in the article, ThrottleJockey gets to see some lethal skull-cracking in the name of law and order.

        • ThrottleJockey

          You realize the limitations of that argument don’t you? Texas conservatives made the same argument in restricting pain and suffering damages in medical malpractice and tort suits. My friend, a DR, said, “Giving someone $10M because the surgeon amputated the wrong leg won’t bring that leg back.”

          We’ve got to hold people to account, and when they heinously take a life, or take many lives then I can’t justify their continued existence upon the earth.

          • witlesschum

            Sure, I recognize the limitations, though I don’t know if I think the current tort law regime is the most perfect thing in the world, either.

            But I’d certainly rather hand out pain and suffering awards to murder victims’ families than have society pay them back in dubious psychic benefits. If I get heinously murdered, at least I know my dependents get something helpful might be a better system.

            We’ve got to hold people to account, and when they heinously take a life, or take many lives then I can’t justify their continued existence upon the earth.

            I think I tend to look at the criminal justice system in more practical terms, like we can’t everyone running around pursuing private, unregulated revenge because society gets unlivable quick that way. So, we’ve got to have the state which didn’t love whoever you lost and can, in theory, be fair and rational in meting out punishment or rehabilitation or whatever.

          • so-in-so

            Well, the person who now has NO legs needs a lot more money to continue their life, and has limited means to get that money. Also, the Doctor isn’t dead, if it somehow came to light that another doctor had done the operation or someone had entered the wrong information on the chart he could presumably be reimburse for the money.

            Also, it’s probably a lot harder to convict a Dr. of malpractice than a poor person of murder.

          • Lurker

            You make a good point, though inconsciously. Deterrence can be established with several means. Awarding punitive damages is one. It is, in fact, the only one available if the public control doesn’t do its duty.

            In Finland, a patient with a wring leg amputated would get damages paid without a legal suit. She would apply for damages from the national medical damages insurance, which would pay up without coughing in such a clear case. However, the basic maxim of Finnish law is that “Damages shall not enrich.” The damages would cover the increased living and medical expenses and decreased earning power, not more.

            However, the doctor would get reported to the national board overseeing physicians, and would get severely reprimanded and might lose his license to practice. In addition, there would easily be a police investigation, and a criminal case. Both the prosecutor and the victim could prosecute, although most likely, the administrative action against the doctor would be the only result. Criminal prosecutions for medical malpractice are really rare.

            Such a system creates also a steady, probable low-level deterrent that will substitute for punitive damages that are awarded to random victims.

            Having a high-likelihood, low-level deterrent is more efficient than having a massive but unlikely deterrent.

  • Rob in CT

    I long ago decided that, while I’m fine with the idea conceptually – in cases where there is no doubt – the real-world application has been such that I just can’t support it.

    I’m not against incremental approaches (tightening up the requirements for a DP penalty, such that functionally it almost never happens), but ultimately the problem is that it’s an irrevocable punishment administered by an all-too-human justice system.

    • witlesschum

      This used to be my position exactly, but people here have made me take seriously the idea that it does something to us as a society and a people when we decide to kill and we should be much more selective about when we decide it’s necessary to do it.

      • Rob in CT

        Ok, yeah, that too.

        Much like torture. It’s not just about it being ineffectual. It’s not just that it’s morally wrong to torture a prisoner. It also corrupts the “good guys” involved.

  • AJayMorris

    I love the typo “deft penalty.”

  • EliHawk

    Question: When was the last ‘liberal’ justice who didn’t eventually flip against the Death Penalty? It seems later in life Ginsburg, Breyer, Stevens and Blackmun all ended up turning against the Death Penalty; put five Dems on the court, let them sit for 10 years, and you’ll get the end of it.

    • Joe_JP

      They all did so late in their career.

      When they were on the Court and realistically able to cement the abolition of the death penalty with years to make it stick, only two (Brennan and Marshall) went all the way.

      I also think the fifth and maybe sixth votes here will be pragmatic centrists and not want to abolish the death penalty 5-4. Who knows, but think they will want someone like Kennedy to go along.

      • Scott Lemieux

        When they were on the Court and realistically able to cement the abolition of the death penalty with years to make it stick, only two (Brennan and Marshall) went all the way.

        That’s misleading, because it implies that 5 votes from these judges could have ended the death penalty. But that isn’t true. Gregg was 7-2. Flip Blackmun and Stevens and you still aren’t there. By the time Breyer and RBG were on the Court, Marshall and Brennan weren’t, so there’s still no possible fifth vote there. And it’s additionally misleading because neither Blackun or Stevens were nearly as liberal in general in 1976 as they were at the end of their careers. (Stevens likes to say that the Court changed, not him, but that’s not true. He made his transition to being an outright liberal fairly early, but early in his tenure he was a smarter version of the Stewart/Powell type moderate.)

  • The Nebraska legislature repealed the death penalty here. So of course, death penalty proponents and our governor decided to put it up to a ballot measure. It’s worded in such a way that you have to reject the ballot measure to keep the repeal.

    I’ll be sad if people aren’t given the proper information to be able to vote the way that they want to on the ballot. We infamously banned affirmative action because of the vague way it was written. So this continues our proud tradition.

    I’m hopeful that the Democratic Party such that it exists here works to help reject the measure and maybe national figures can help, too. We’ll see.

  • Happy Jack

    Killing is winning. Those opposed to killing :

    Humphrey – loser
    McGovern – loser
    Mondale – loser
    Dukakis – loser

    Pro killing :

    Carter – winner
    Clinton – winner
    Obama – winner
    Clinton – winner!

    Wishy-washy Gore and Kerry were losers. I’d prefer that Democrats were winners rather than purity ponies.

    • Scott Lemieux

      Carter – winner

      Really?

      Clinton – winner!

      But no president who supports same-sex marriage has even been elected, so I don’t see how that’s possible.

      • Happy Jack

        Really?

        While I’ll admit to my share of illicit substances in the seventies, I’m pretty sure 1976 wasn’t a mirage.

    • witlesschum

      Gore won.

    • Linnaeus

      I’d prefer that Democrats were winners rather than purity ponies.

      More evidence for my view that “purist” and “purity pony” are terms that are increasingly impoverished of meaning.

      • N__B

        A purity pony is what a Daddy-prince rides to a purity ball with his daughter. So it will always have a meaning. I’ll continue with this thought after I go throw up.

        • Linnaeus

          Man, I just ate lunch.

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