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November 10, 2009

Do cases like the DC sniper and the Fort Hood shooter and Ohio serial killer ensure death's vitality?

Reviewing some of the media coverage of sentencing issues this morning confirms my view of why it is always going to be difficult for death penalty abolitionists to convince the majority of Americans to be opposed to the death penalty in all cases for all crimes.  Specifically, this week all the major death penalty talk centers around (1) Virginia's efforts to execution the DC sniper, John Allen Muhammad, and (2) the consideration of capital prosections of the Food Hood shooter, Malik Nadal Hasan, and Ohio's sex offender serial killer, Anthony Sowell.

Notably, in all three of these cases, we all must confront obviously deranged offenders who have committed multiple brutal and senseless murders that have terrorized local communities and the nation as a whole.  In none of these there cases is there any serious basis to doubt the guilt of the offender, and there likewise does not seem to be a good chance that poor lawyering or racial bias or some other procedural defect explains why the case is to be a capital case.

In other words, with such potent capital punishment poster children like Muhammad and Hasan and Sowell garnering much media coverage and capturing most of the public's attention, I suspect it will remain very hard for death penalty abolitionists to change the hearts and minds of average Americans to be opposed to the punishment of death in all contexts.

November 10, 2009 at 09:38 AM | Permalink

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The violence continues.

Is there any problem for which Americans don't first look to more violence as a solution?

Posted by: anon | Nov 10, 2009 9:42:04 AM

Just in time, Davis was confirmed by the Senate yesterday, giving Democratic appointees a majority on the 4th circuit. With four more vacancies and three nominees to go, the endgame would be a 2-1 margin. Do you think the 4th will continue to give states a blank check in applying DP? Had his crimes been committed in the 9th, I doubt he'd been executed until the 2020s or beyond.

Posted by: . | Nov 10, 2009 9:44:00 AM

If you think death penalty as revenge there are no hopes. But these senseless homicides are the demonstration capital punishment is NOT a deterrent for murder.

Posted by: claudio giusti, italia | Nov 10, 2009 11:01:37 AM

"...obviously deranged offenders," underestimates and disrespects the achievements of these mass murderers.

I respect these offenders. They achieved a great deal. Hasan fulfilled his religious mission, and will not be lonely anymore, with the 72 virgins coming his way. The DC sniper had a plan to kill his wife, among the sniper victims. He had the police looking for and stopping white guys in white vans, when he was a black guy in a dark Chevy. He showed someone with ordinary hunting skill could disrupt an entire region.

I respect them enough to want them dispatched as soon as possible. I believe I speak for the ordinary person.

Posted by: Supremacy Claus | Nov 10, 2009 11:14:44 AM

Doug --

Correct in all particulars. There is a strong case, rooted in restraint and respect for life, that the DP should be imposed only after the most sober refection. But there is no case at all that it should NEVER be imposed. Multiple, premeditated and conscienceless murders of the kind we are forced to contemplate this week cannot possibly be addressed by the same kind of sentence you'd give a car thief.

Posted by: Bill Otis | Nov 10, 2009 11:58:19 AM

claudio giusti --

"...these senseless homicides are the demonstration capital punishment is NOT a deterrent for murder."

If the DP in not a deterrent for murder, then life imprisonment, which is given vastly more frequently as the punishment for murder, must be that much LESS of a deterrent.

Maybe we should just ratchet down to a good, stiff talking to. After all, what would Jesus do?

Posted by: Bill Otis | Nov 10, 2009 12:05:25 PM

Bill, you're not making much sense here. There is a vast difference between LWOP and a stiff talking to. The law draws lines all the time; the question is where the line should be drawn. Some draw a bright line at death. You don't, and that's a defensible position. But it's silly to suggest there is no difference between LWOP and a stiff talking to. And silly to suggest that car thieves get LWOP. Not in the criminal justice world I practice in.

Posted by: full faith and credit | Nov 10, 2009 12:13:34 PM

The DP deterrent research I've seen indicates that the effect, if it exists, is on murders that are not themselves DP eligible. This does make some amount of sense in that these non-perpetrators would be the marginal criminal rather than the truly aberrant. At the far edge where you get Hitler loving nutcases and someone willing to kill a bunch of strangers in order to try hiding the death of an ex-wife there is likely nothing that can be done that will make the criminal think twice about their actions.

Posted by: Soronel Haetir | Nov 10, 2009 12:36:57 PM

The United States is a sick place.

Posted by: DBA | Nov 10, 2009 12:38:05 PM

I agree with Soronel on this one, i.e., that deterrence is not the real issue here. The real issue is vengeance. Vengeance may or may not be a legitimate factor (an argument can certainly be made that it is), but let's at least be straightforward that that's what we're talking about. Which is another reason why Bill O.'s comments about deterrence miss the mark. The real principle behind his comments seems to be vengeance, and it would advance the debate more if he would acknowledge that.

Posted by: full faith and credit | Nov 10, 2009 1:39:10 PM

Maybe support for the death penalty is confused with the wish to be there and shoot any of these guys down in self defense of self or others. Few object to self defense and there is much less debate on if self defense homicide is A-OK.

But none of us could be there and shoot them down no matter how much we wish we could. So we let the government do it by proxy. One complication is that at the time of execution, there is no longer an immanent threat of danger to life and limb.

Someone smarter than me will have to figure out if the equation of a self defense homicide and an execution, if that is what it is, actually serves as satisfaction and closure.

Posted by: George | Nov 10, 2009 2:00:50 PM

DBA --

"The United States is a sick place."

At last we have an abolitionist willing to say what they really think. All this talk about cost is a smokescreen. The real skinny is that, in their veiw, the country stinks.

If murder stinks, we haven't heard about it.

DBA, thank you for you candor. It provides a moment of clarity.

Posted by: Bill Otis | Nov 10, 2009 2:32:41 PM

"There is a strong case, rooted in restraint and respect for life, that the DP should be imposed only after the most sober refection."

Bill, are you going soft? The execution of a murderer, in the grand scheme of things, isn't that big a deal. Sober reflection, I think, is far more appropriate when it comes to the guilt/innocence phase than the death phase. If I were on a jury, I'd worry more about sending a guy to jail for a day than I would about sending a guilty murderer to death.

Posted by: federalist | Nov 10, 2009 2:32:41 PM

full faith and credit --

"There is a vast difference between LWOP and a stiff talking to. The law draws lines all the time; the question is where the line should be drawn. Some draw a bright line at death. You don't, and that's a defensible position."

It's considerably more than just "defensible." It's the position held by two-thirds of the American public, by all but four of the 113 Justices who have served on the Supreme Court, and by Abraham Lincoln and FDR, among others.

"But it's silly to suggest there is no difference between LWOP and a stiff talking to. And silly to suggest that car thieves get LWOP. Not in the criminal justice world I practice in."

You missed the point. Claudio was arguing that these recent awful cases (Muhammad, Hasan and Sowell) illustrate that capital punishment is not a deterrent. But if the prospect of the DP did not deter these killers, neither did the prospect of life imprisonment. Indeed, since life imprisonment is the far more likely sentence than the DP, it is the former, not the latter, that most prominently lacks deterrent value.

And if you want to focus on something truly silly, how 'bout this: How can claudio make any claim AT ALL about the deterrent power of the death penalty without knowing how many murders did NOT occur on account of it?

Posted by: Bill Otis | Nov 10, 2009 2:50:41 PM

I agree with Mr. Otis on this one. Violence is the USA way. Those who reject it are unpatriotic idiots.

You want to end delays? Preventive violence is the most, perhaps only effective way to accomplish that. Take all the abolitionists, line them up, and shoot them. They hate this country and don't belong here; and they're not likely to leave on their own...

Posted by: R. Skinny | Nov 10, 2009 3:00:09 PM

federalist --

I AM going soft, but mostly around the waist.

I respectfully disagree with your thought here. Abolitionists are right about two things: the decision to end a human life is as serious as serious gets; and once you've executed the guy, you can't go back.

To my way of thinking, that is sufficient to call for sober reflection. But there is a difference between sober reflection and moral paralysis, which is one reason I remain steadfastly in support of the DP.

Posted by: Bill Otis | Nov 10, 2009 3:01:44 PM

Do tell us, R. Skinny, what you think DBA meant when he said, "The United States is a sick place."

Is that an anthem of patriotism?

Do you agree with it?

Are you so morally superior to Lewis Powell, Felix Frankfurter, Sandra Day O'Connor, John Milto, FDR and Abraham Lincoln that your views about the death penalty eclipse theirs? Could you explain how that is so?

Posted by: Bill Otis | Nov 10, 2009 3:09:04 PM

Bill --

You again and again return to this idea that the fact that FDR and Lincoln approved of the death penalty somehow means that if you don't agree, you consider yourself "morally superior."

On the contrary, I recognize that 2 or more people can hold different views on a topic and all be moral persons. Your argument about famous politicians approving of the DP just carries no weight whatsoever. So what? The Pope opposes the DP. Neither his view, or FDR's, or Lincoln's, or Obama's, or yours makes my opinion more or less valid.

Whether or not you feel morally superior to those who oppose the DP is another matter, I suppose.

Posted by: AC | Nov 10, 2009 3:38:57 PM

"Abolitionists are right about two things: the decision to end a human life is as serious as serious gets; and once you've executed the guy, you can't go back."

The reality is that when someone is given a long sentence, the justice system in the vast majority of cases doesn't go back. And the decision to take away a citizen's freedom is far more serious than the decision to execute a murderer. We used to have mandatory death sentences--something which, in my opinion, ought to be brought back.

Posted by: federalist | Nov 10, 2009 3:59:03 PM

Bill: Your 2:50:41 post appears to confirm my original point - that your support for the death penalty is based on vengeance not deterrence. Why is it so difficult for you just to come out and say that? Like supporting the death penalty in general, it's a defensible point. Instead of defending the point, though, you obscure it.

Posted by: full faith and credit | Nov 10, 2009 4:01:55 PM

AC --

"You again and again return to this idea that the fact that FDR and Lincoln approved of the death penalty somehow means that if you don't agree, you consider yourself 'morally superior.'"

The feeling, and not infrequently the statement, of moral superiority, is a staple of abolitionist thinking. You can see it all over the comments here about the DP. John K, for example, recently had a post asking whose side you'd rather be on in the "jungle-civilization continuum": the side of restraint, forgiveness and compassion, or of revenge and violence.

I didn't notice your asking him why he was holding himself out as morally superior to those evil-minded, back-to-the-jungle retentionists. Did you?

If you are among the abolitionists who decline to take the condescending approach to those who disagree with you, more power to you.

"Your argument about famous politicians approving of the DP just carries no weight whatsoever."

Well, it carries no weight with you, because your mind is closed, and the fact that persons widely recognized as moral beacons think otherwise is not something you're about to let interfere with your conclusions.

"The Pope opposes the DP. Neither his view, or FDR's, or Lincoln's, or Obama's, or yours makes my opinion more or less valid."

They are, however, worth considering, unless you know that you're smarter or more enlightened than they are. Are you?

Posted by: Bill Otis | Nov 10, 2009 4:10:56 PM

Bill -

Last comment in this thread. I'm not John K, so I can't speak for him, and I'm not one a "condescending abolitionist," so I can't speak for them either. I can only speak for myself, and I don't consider myself morally superior to DP proponents. Want to keep arguing with me about that? I've got nothing more to say.

Of course all opinion are worth considering. I've considered the opinions of DP proponents (indeed, espoused them, having been a DP supporter at one time myself) and found them lacking. That doesn't mean my mind is closed; it means my mind is open. I considered different opinions and changed my own. If that's not open-minded, I don't know what is. Your personal attacks don't carry any more weight than your Famous Politicians argument.

Posted by: AC | Nov 10, 2009 4:25:25 PM

full faith and credit | Nov 10, 2009 4:01:55 PM --

Beautiful. Rather than address a single analytical point I made, you dash right to an attack on what you take to be my motives, i.e., revenge.

The attack on motives as a substitute for argument is a tactic too weary to require, or warrant, discussion.

If, however, you want to go there (I don't), perhaps you could tell us why you perfer to attack the motives of people who dissent from The Received Wisdom On Sentencing According To Timothy McVeigh, but refrain from attacking, or even mentioning, the motives of McVeigh himself, and other wanton killers like Hasan, Sowell and Muhammad, who are now in the news?

I truly hope you don't sympathize with these people, but I presume nothing at this point.

Posted by: Bill Otis | Nov 10, 2009 4:27:33 PM

AC --

"I've got nothing more to say."

I don't disagree, and it's your choice to make in any event. I shall, however, continue to cite John Milton, FDR, Lincoln, Felix Frankfurter and many others when your abolitionist allies persist in their attacks on me and my retentionist allies as barbarians, bloodlusters, and all that stuff.

Posted by: Bill Otis | Nov 10, 2009 4:44:30 PM

"At last we have an abolitionist willing to say what they really think. All this talk about cost is a smokescreen. The real skinny is that, in their veiw, the country stinks.

Bill, I'm an abolitionist and I DON'T think that the United States are a sick place. Maybe you shouldn't be prejudiced.

Greetings,

Joachim

Posted by: Joachim | Nov 10, 2009 5:25:50 PM

Bill: Please try to calm down. This entire thread IS a discussion of motives, i.e., what is a society's motive in seeking/imposing the death penalty. Is the motive deterrence? Is it vengeance? Is it incapacitation? Some combination of these? I wasn't "attacking" your motive (I've said a couple times now that the vengeance motive is defensible), I was simply urging you to be more upfront about your motive. I'll say one more time - vengeance is a defensible motive. Now it's your turn to defend it. If I disagree, I'll explain why. That's how civilized debate takes place. And just for the record, I think vengeance probably IS the best reason for the death penalty. So I remain curious why you are so reluctant to defend it.

Posted by: full faith and credit | Nov 10, 2009 5:42:55 PM

Joachim --

"I'm an abolitionist and I DON'T think that the United States are a sick place."

Excellent. I'm glad to hear it. It's unfortunate, however, and perhaps telling, that you are the ONLY abolitionist who has said so the six hours and many posts since DBA's "America is sick" comment.

"Maybe you shouldn't be prejudiced."

It is scarcely prejudice to quote a poster word-for-word and thank him for his candor, as I thank you for yours.


Posted by: Bill Otis | Nov 10, 2009 6:39:39 PM

Bill,

you're invited to enter a dialogue via e-mail. Feel free to send an e-mail to me at: joachimkuebler AT aedpa.net and we can exchange our positions and arguments.

Greetings,

Joachim

Posted by: Joachim | Nov 10, 2009 7:00:35 PM

FFAC --


"Please try to calm down. This entire thread IS a discussion of motives, i.e., what is a society's motive in seeking/imposing the death penalty."

Oh gosh, FFAC, at my age being calm is a fact of life. I'm especially calm tonight, now that the world will see (1) that the United States retains sufficient moral confidence that, in the face a grotesque and deadly criminal, it can say NO and actually mean it; and (2) that doing so will neither bankrupt the state nor require a generation to get done.

BTW, this thread is NOT -- or at least it did not start out as -- a discussion of general motives for supporting the DP, much less my individual motives, which are irrelevant to the merits of the policy debate, but with which you seem to be preoccupied.

"And just for the record, I think vengeance probably IS the best reason for the death penalty. So I remain curious why you are so reluctant to defend it."

Because, to give you just one reason, I wasn't born yesterday. "Vengeance" is a buzzword. YOU might say there's nothing wrong with it, but the abolitionist movement takes after it like a dog after a fire hydrant. Specifically, it is used to contrast "compassionate, forgiving, caring" etc. abolitionists with "vengeful, barbaric, bloodlusting" retentionists. I decline to give fodder to yet more such diversionary, and unworthy, attacks.

I prefer to talk instead about what Doug suggested in the headline of this thread, namely, why the facts of the DC sniper case and the Ft. Hood massacre case may keep support high for the DP. And, no, it's not because supporters are headcases brimming over with vengeance.

It's because the punishment should fit the crime. if you want to know what lies at the base of my thinking, there it is in a nutshell. The idea that mere imprisonment, no matter for how long, "fits" the planned, stone-cold, remorseless mass murder of completely innocent, unsuspecting people just boggles my mind -- and, I take it, the minds of the huge majority of our fellow citizens. These are normal people, not frothing-at-the-mouth vengeance seekers, and I am happy to be on their side even if you're not.

Posted by: Bill Otis | Nov 10, 2009 7:34:54 PM

Perfectly legitimate reasoning, Bill, and I'm glad to finally hear it. If I'm interpreting your argument correctly, it's not so much vengeance as justifying the death penalty as it is an "eye for an eye" philosophy. It would have been easier to just say so in the beginning, but I do appreciate it your saying it now.

Posted by: full faith and credit | Nov 10, 2009 8:04:56 PM

Thank the vile internal traitor, the terrorist lover lawyer for the Fort Hood massacre. Investigators would have been crucified by litigation if they had probed the Moslem terrorist.

http://www.foxnews.com/politics/2009/11/10/coverage-fort-hood-shooting-press-dodges-religious-component/

And they still cannot question him. His lawyer has demanded no one speak to him and that he remain silent.

Posted by: Supremacy Claus | Nov 11, 2009 1:20:03 PM

Bill:

Deep breaths.

Seriously, when you are talking about whether a particular mode of punishment should or should not be in the arsenal of the State to use (esp. considering most of Christendom has abandoned the practice) how is motivation not central to the discussion.

& DAB, I wouldn't be surprised to see Sowell get something less than death for reasons that a little too long to go in to here.

Posted by: karl | Nov 13, 2009 4:18:06 PM

karl --

"[W]hen you are talking about whether a particular mode of punishment should or should not be in the arsenal of the State to use (esp. considering most of Christendom has abandoned the practice) how is motivation not central to the discussion."

Even if the motivation of the millions of DP backers in this country were relevant (which I gravely doubt), the motivation of a single DP backer (me) could not possibly be. It's just the opening gun on the by-now tiresome, ad hominem argument that I'm a barbarian, and I'm not going to start down that road again. At this point, it's not so much insulting as it is just annoying. And boring.

Second, I am unaware of any reason, and you provide none, that the Christian view should be preferred to the view of Islam, or of Oriental religions (which together have much more of a following worldwide than Christendom).

Third, even if there were such a reason (outside of sheer religious bigotry, which I confidently presume you do not espouse), I would prefer secular and Constitutional analysis to religious lessons. This is, after all, a question of secular law.


Posted by: Bill Otis | Nov 16, 2009 8:04:17 PM

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