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January 3, 2010
"A year for more executions"
The title of this post is is the headline of this new Washington Post editorial. Here are excerpts:Virginia was one of 11 states that put an inmate to death in 2009. The state executed three prisoners, including D.C.-area sniper John Allen Muhammad, contributing to the first spike in executions since 2005. Nationwide, 52 prisoners were put to death in 2009, up 41 percent from the 37 executed during 2008....
[T]he continued reliance on this unnecessary and barbaric punishment is regrettable, especially because of the continued risk that innocent men and women could be put to death. Indeed, nine inmates who had spent years on death row were fully exonerated in 2009, thanks in large part to the increasing use and sophistication of DNA evidence.
Perhaps because of the nationwide drop in the murder rate or perhaps because of the risk of wrongful execution and the exorbitant costs associated with prosecuting capital cases, fewer death sentences were handed down this year, according to a report by the Death Penalty Information Center....
While the number of death row inmates in the federal system increased to 58 -- three times the number that existed at the beginning of the Bush administration -- the size of the death row population in the states continued to drop and stood at 3,279. More than 1,400 such inmates are held in California, Florida and Texas.
New Mexico took the commendable step of abolishing capital punishment in the state. Sadly, Maryland lawmakers debated such a step but failed to garner the votes for passage. Instead, they passed legislation that authorizes the death penalty only in cases where DNA or videotaped evidence corroborates guilt. This toughening of the standards is welcome, but lawmakers should not abandon the quest to erase the death penalty from the state's books.
Yesterday, I complimented the Post for an editorial that usefully asked why violent crime rates keep falling. But today I must assail the same editorial board for not even considering the possibility that the death penalty could be playing a positive role in our society becoming more safe. (It is also telling and annoying that this editorial takes a swipe at the Bush administration even though the Clinton administration was most responsible for bringing the federal death penalty back to life and for limiting federal habeas rights of death row defendants.)
More broadly, I find it comical that this editorial calls the death penalty an "unnecessary and barbaric punishment" right after noting that Virginia in 2009 executed mass murderer John Allen Muhammad. Muhammad's killing spree was surely unnecessary and barbaric, but his execution could readily be viewed as necessary and even humane. Muhammad's continued existence tormented his ex-wife and surely some of the many victims of his mass murder; his death was likely necessary to bring at least a small measure of cathartic relief to the communities in which he caused great suffering. He was executed using a protocol that seeks to avoid all pain after a fair trial and multiple appeals, and he humanely had nearly a decade longer than his victims to prepare for his death.
As for "the continued risk that innocent men and women could be put to death," don't Maryland's 2009reforms showcase that this risk always being diminished? Of course, in Muhammad's case, there was no risk that innocent person was put to death, even though Muhammad himself killed many innocent men and women.
I continue to have great respect for people who express their passionate beliefs that the death penalty is immoral. But calling the death penalty an "unnecessary and barbaric punishment" is stating a debatable conclusion, not making a reasoned argument. I remain troubled and disappointed that modern discussion of the death penalty remains dominated by partisan dogma rather than reasoned debate.
January 3, 2010 at 02:04 PM | Permalink
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Comments
Innocence is not a good argument to pause the death penalty. It just proves the necessity for tort liability for careless and incompetent prosecutors and for judges.
If anyone argues innocence is an obstacle to the DP, they should stop using all modes of transportation until the problem of crashes has been solved. These crashes kill 1000 times more people than the DP, and 5000 times more innocent people. These crashes dispatch 40,000 people without due process. They have done nothing wrong other than driving over black ice. The methods of dispatch are by live butchery as metal bashes and slices the bodies.
The DP should be a tool to get rid of very dangerous people. Their dangerousness is measured by their past crimes, not by guesses at their future criminality. I like the landmark of the economic value of life. Say, $6 million. That means Madoff gets the DP, but not Leona Helmsley for her $4 million tax beef. This eliminates the greater burden of the DP carried by the poor.
One should also delineate the dose-response curve of the DP. Not enough, and it does not work. Too much, it intimidates innocent people. I estimate the ideal number is in the 1000's a year to get a big drop in crime. It would be from attrition of the criminal population, and assumes no deterrence.
Posted by: Supremacy Claus | Jan 3, 2010 2:52:04 PM
Doug --
Wow. What can I say? Hats off to you. But get ready for some tough blowback.
Posted by: Bill Otis | Jan 3, 2010 3:55:08 PM
The blowback will be only from government dependent, criminal lovers, who are racists and hypocrites, or worse, from Euro trash. It has no validity. The rent seeking theory of left wing love of pure evil is charitable. It is possible, they are not motivated by economic self interest, and just support pure evil.
I will not disclose the content of a private conversation. However, I too have been blown away, this weekend, by the candor and courage of Prof. Berman. I am not being sarcastic. He is quite unique in legal academia.
Posted by: Supremacy Claus | Jan 3, 2010 4:26:52 PM
Doug - some blowback from a constituent of "Euro trash"
"I must assail the same editorial board for not even considering the possibility that the death penalty could be playing a positive role in our society becoming more safe." - we have all heard, studied and debated the various reports on the notion of deterrence. There is no basis (in spite of Bill's and other's partisan attachment) for conclusion beyond any marginal relevance to acts of murder. That the editorial board did not deem it necessary to revisit this topic is unsurprising and totally justified.
"It is also telling and annoying that this editorial takes a swipe at the Bush administration" - now who is being partisan ?
"I find it comical that this editorial calls the death penalty an "unnecessary and barbaric punishment"". Really? It is a view clearly contrary to your own, but it is a rational view nonetheless. Death clearly is unnecessary as the greater majority of sentences against murderers proves. "Barbaric" - unnatural death is always barbaric, the more so when deliberately inflicted by the State against an individual. Modern high-tech security systems render the arguments of security redundant. Higher standards of management might be required to ensure proper safeguards - but that requirement is hardly something to be run from in the 21st century.
"his death was likely necessary to bring at least a small measure of cathartic relief to the communities in which he caused great suffering." - and how do you measure that may I ask? And what of the responsibility, or perhaps rather liability, of another community for Muhammad's cruel and unnusual childhood in which he was reportedly beaten with "hoses and electrical cords, denial of food, clothing and basic necessities, and suffering on a scale difficult to imagine." - "which mental health experts have linked with John Muhammad’s brain dysfunction." Or the fact that "Muhammad’s brain had serious abnormalities, including a shrunken cortex, indicating a loss of brain tissue likely to have been caused by a severe injury to the head."
"he humanely had nearly a decade longer than his victims to prepare for his death." - I doubt even the US Supreme Court could bring itself to utter such a statement. Are you seriously suggesting such a notion contributes to legal Justice?
"don't Maryland's 2009 reforms showcase that this risk always being diminished?" - any lessening of risk of error is welcome, but the issue of the death penalty is multi-faceted and its practice multi-fractured. It is not credible to point to a relatively minor concession of improvement in one state, when both other issues remain unaddressed, and the point relates to one state only. One of the great problems of the death penalty has been the non-uniform nature of the punishment both between and within states throughout the US.
"I continue to have great respect for people who express their passionate beliefs that the death penalty is immoral. But calling the death penalty an "unnecessary and barbaric punishment" is stating a debatable conclusion, not making a reasoned argument." All debates have at some point to end, and a decision made. Are we to maintain a broken, unjust and extraordinary punishment forever, simply because you find room for stating a different possible conclusion? To your clear angst, the evidence is that prosecutors and juries are increasingly reluctant to commit perpetrators of this crime to death. I've heard say that democracy is the driving force of law in the US. The US Supreme Court is living proof that it is not, but if there were any truth in it at all, then surely recognition of the development, following the introduction of alternative punishments, should inform your own views.
"I remain troubled and disappointed that modern discussion of the death penalty remains dominated by partisan dogma rather than reasoned debate." - I see little enlightenment in your comment today.
Posted by: peter | Jan 3, 2010 5:45:15 PM
This is the same editorial board that once stated that victims' families who pushed for death sentences should be required to bear the costs of appeals.
Posted by: federalist | Jan 3, 2010 6:02:07 PM
peter --
Like Doug, I admire your passion, but disagree with your conclusions. With all respect, if you're losing a fair-minded liberal learned in the law, and a man generally favorably inclined to alternative, less punitive sentencing, it's over.
Posted by: Bill Otis | Jan 3, 2010 6:10:38 PM
Bill - you wish.
Posted by: peter | Jan 3, 2010 6:16:36 PM
Like Peter I'm also "Euro Trash" but Supremacy Claus' use of language tells us rather more about his personality than about the "Trash"...
However, I'm an abolitionist but I have to give Prof. Berman a nod. The death penalty is an emotional, very emotional topic so on both sides you find - emotions. But that's the reason why the discussion has to be more reasonable.
Posted by: Joachim | Jan 3, 2010 6:16:39 PM
Doug:
Where does Cameron Todd Willingham go to get his life back? The Maryland reforms aren't going to help him, they didn't help 100+ exonerated from death row, and their not going to help the next innocent guy sent to death row or to his death.
Posted by: karl | Jan 3, 2010 6:34:27 PM
peter --
When a fair-minded and intelligent liberal like Doug supports keeping the death penalty, and when the polling shows strong and consistent support for it, you can keep pushing for abolition, sure -- but your chances of getting it are pretty clear.
Here is the central reality of law in this country: You can't lose the middle and expect to win. When you lose Doug Berman, you've lost the middle and then some.
Posted by: Bill Otis | Jan 3, 2010 6:47:11 PM
Peter: Embrace your Euro twitness and trashiness. You live like animals. Go to expensive Paris restaurants and you still have to squat over a hole to pee (the Supremacy is a female, but not a feminist, please). They cannot afford a $50 toilet.
A heat wave hit Europe. There is not enough money for $10 fans to save 11,000 elderly people. There were so many bodies, they had store them in refrigerated truck trailers. No one was bright enough to offer the old folks a stay in those refrigerated trucks before they were executed by their worthless health care system.
You Euro trash specialize in mass murder as you agonize over the fate of a Moslem terrorist.
Hey, Peter, the deterrent effect of the DP is unknown since it is being stymied by extreme abolitionists. Give miracle drug penicillin to 1 in 100 pneumonia patients, 7 years after the start of pneumonia. When you do give it, make sure 20% of patients do not have pneumonia. Then price the dose at $1 million. Penicillin does not look that effective. It is effective but not in the hands of the dumbass, criminal lover, rent seeking lawyer here.
If you had 10,000 executions in the US, you would have virtually no crime. Why? Deterrence? No. Attrition. The criminals would be missing. However, you would come out ahead by 15,000 murder victims. The dumbass, criminal lover lawyer has chosen between evil that brings in lawyer jobs, and sparing the lives of murder victims that brings in no lawyer jobs.
That is the way of Europe, rent seeking on a scale as yet unknown here.
Posted by: Supremacy Claus | Jan 3, 2010 7:50:12 PM
Karl: I have to be repetitive because the abolitionist will not stop trotting out this bogus innocence argument. I am appalled that any innocent person gets executed. And I am the only person here advocating all unconscionable, self -dealt immunities of the dumbass, careless and incompetent prosecutor and judge. It is the judge who must pay the most for his carelessness.
That being said, innocence has no validity as an argument againt the DP. If it did, you would have to stop using all transportation until the problem of "accidents" is completely eliminated. Transportation kills 1000 times as many people as the DP, and 5000 times as many innocent people. There is no due process, only the mistake of going a patch of black ice. The method of execution is by butchery while still alive, as metal bashes and slices bodies randomly.
Posted by: Supremacy Claus | Jan 3, 2010 8:00:29 PM
Couple of quick responses to points made by peter and karl:
1. Peter rightly says: "All debates have at some point to end, and a decision made." In the US, when these debates turn on policy judgments, tha decision ought to be (and generally are) made by voters and their elected representatives. I view my (generally tepid) defense of the death penalty to be essentially a defense of democracy.
Public support of the death penalty in the US tends to be strong and reasonably well informed --- e.g., polls suggest most people understand an innocent may be wrong executed sometimes --- and that is why he death penalty persists in part of the US. What is ironic in your comment is the reality that, once the decision get made by voters to embrace the death penalty, abolitionists no longer want the debate to end.
2. If Cameron Todd Willingham was truly innocent, his killing by Texas was a great injustice and metaphysical tragedy. But so, too, was the killing of all of Muhammad's innocent victims (and the victims of Maurice Clemmons and the Ft. Hood shooter and hundreds of other innocent persons who die unnaturally and prematurely every day). I assume those whose lives are cut short prematurely go to the same (nonexistant?) place to get their lives back.
Moreover, though the process may have not reach the right result, the process which led to Willingham's death was subject to and controlled by the rule of law. Though often flawed, our society's commitment to the rule of law --- which includes respect for duly enacted laws with which one might personally disagree --- sets America above many other nations and civilizations throughout history. In this way, even if Cameron Todd Willingham was wrongfully convicted and executed, there still was a (flawed) form of commitment to the rule of law reflected in his life story that garners my (begrudging) respect.
Indeed, to add insult to tragic injury, the indisputably innocent victims of so many brutal killers are lost to history long before Mr. Willingham (or Mr. Muhammad). Indeed, I suspect everyone reading this comment thread knows who Cameron Todd Willingham is, and yet cannot name many (or even any) of the persons gunned down by John Allen Muhammad.
Posted by: Doug B. | Jan 3, 2010 8:17:50 PM
What constitutes the “middle” changes over time. A few years back the “middle” didn’t believe that people of different races should marry, and the “middle” didn’t like email or the internet.
But, I think this debate illustrates a bigger problem: that intellectual dishonesty is pervasive in DP debates.
Likely, there is *some* good to come from the death penalty. I, for one, thin, that without it, Texans would behave much worse than they do now, and a vibrant death penalty is the only thing that keeps their criminal ways in check. (Obviously, it isn’t necessary in Maine or states where people can behave themselves, but that is why we have federalism.)
On the other hand, the DP probably is barbaric. But the pro-DP crowd is obsessed with keeping the actual executions secret, so Americans can’t judge for themselves whether they are *too* barbaric. It might be that we watch a few Texans get killed, and we are realize that we are completely comfortable with the concept. Maybe not. But that is what the First Amendment, with its guarantees of a free press and petitions for redress are for.
Posted by: s.cotus | Jan 3, 2010 8:32:19 PM
Doug:
Your argument seems to be that killing Willingham, while tragic, was ok because we killed Muhammad. I will avoid the crass argument of death-lust and stick with what I think is the unstated position you have seemed to take in the last several months. Your arguments in the last few months, unstated here, seem to reflect the death penalty deters murder and as such even a wrongful execution saves more innocent lives than the life taken. The second is that some crimes are so barbaric that they deserve punishments that are likewise barbaric, and indeed cruel.
As to the first argument, I wholeheartedly disagree. We can argue studies, econometric modeling, etc., for months on end. We can argue the studies that suggest a term of years in excess of 25, or so, years is an equal deterrent to death. The deterrence argument is why so much CJLF, and others, time and money have been spent on questionable studies. If the death penalty deters and saves more innocent lives than it takes, on balance, it is a moral good, the argument goes. The studies, including those on brutalization, are at best inconclusive. In the end, however, NYC's murder is at a record low without the death penalty & the death belt still leads the nation in murders.
As to second argument, you have a Cullen, Ridgeway, and Rader problem on one hand and a Willingham problem on the other. What I symbolism is it if all mass murderers don't get death, and Cullen, Ridgeway & Rader -- three of the last decades most prolific murderers -- didn't. If the worst of the worst don't get death, and I would argue that a strong argument that Cullen, Ridgeway & Rader are worse offenders than Muhammad, then the symbolic value of a person like Muhammad's execution is marginal. Likewise, if the only value of the dp is symbolic than perhaps wrongful executions like that of Willingham's illustrate that our criminal justice system is just another governmental program prone to error, caprice and whim, and therefore too imperfect to inflict unfixable penalties.
And lest we forget, the names of those people whose lives were cut short by John Muhammad: James Martin, James Buchanan. Premkumar Walekar, Sarah Ramos, Lori Ann Lewis-Rivera, Pascal Charlot, Caroline Seawell, Iran Brown, Dean Harold Meyers, Kenneth Bridges, Linda Franklin, Jeffrey Hopper, and Conrad Johnson.
Posted by: karl | Jan 3, 2010 9:36:30 PM
I watched an old western last night - John Wayne of course, in "Cahill". If you've forgotten the story, it takes place in Texas. John Wayne is a US Marshall, widowed with 2 sons who he neglects to his cost. The elder son rebels at the neglect, associating with criminals and agreeing to participate in the robbing of a bank, in order to get back at his dad. The younger son is torn in his loyalty to his brother and his dad, but goes along with the demand to help the robbery. During the course of the robbery the sheriff and another are killed. Enter John Wayne, who begins to teach the boys what the consequences of wrongful (criminal) choices can be. Three other men and a boy are arrested for the robbery on the basis that they were strangers in the area, admitted to previous crime, and had some small number of new notes ($) in their possession. A judge and jury decided their fate in good ole democratic fashion - guilty as charged and penalty of hanging. John Wayne has done his duty by providing some suspects, though he doesn't personally believe in their guilt of this crime. His conscience is partially assuaged by their previous record of crime and by the fact that responsibility for the sentence and hanging is taken by the judge and jury. His sons develop a conscience about the fate of the 4 innocent men, and of their own participation, and gradually devise a strategy to distance themselves from the criminal gang that had influenced them, and to try to save the 4 strangers from injustice. John Wayne guesses what had happened and follows their actions to recover the stolen money and to capture the criminal gang. Finally, the gang are killed, the money returned, and the sons restorative actions hoped to gain understanding and clemency from the judge.
Do I need to spell out either the similarity of rough justice that is seen to occur in Texas and other states today, or the moral that the innocent often need exceptional help to prove their innocence as a consequence? Or that the young, inexperienced or severely disadvantaged can make wrong choices in life but are capable and deserving of help and a second chance, whatever their crime?
The law cannot be built or determined by popular vote alone. It is a fallacy to believe that voters are always "informed". A jury gets closer - but is still dependent on the quality and honesty of the evidence put before it. Democracy is misunderstood if it ignores the overriding aims of justice and humanity and of individual integrity and freedom. The Bill of Rights was an essential component or adjunct of the Constitution, I believe to ensure that the power of the vote was not abused by the state. Its influence has been emasculated by politicized judges at every level of the justice system - something that seems to have been recognized by Justice Sandra Day O'Connor. Wider recognition of this, through debate, would certainly go some way to clarifying the issues concerning the death penalty, and many other issues of justice today.
Posted by: peter | Jan 4, 2010 5:52:25 AM
123D. Solves the problem of youthful mistakes, but puts a limit to them. A law person should not investigate nor judge members of his family. The results are biased, but also the findings are painful, better left to dispassionate strangers.
In the West, there was little law. One spent a lot of time on personal security rather than on productivity. The cost of crime does not usually measure the lost opportunities from time spent protecting oneself. However, the arming, the self-help and practicality of those people is something to emulate. Judges also shared the values of the folks. They were not a removed, and sicko elite as they are today.
Posted by: Supremacy Claus | Jan 4, 2010 7:00:48 AM
"2. If Cameron Todd Willingham was truly innocent, his killing by Texas was a great injustice and metaphysical tragedy. But so, too, was the killing of all of Muhammad's innocent victims (and the victims of Maurice Clemmons and the Ft. Hood shooter and hundreds of other innocent persons who die unnaturally and prematurely every day)."
Prof. Berman,
where's the logic in this argument (or is this just a little provokation?) The only logic I can find is that one injustice (and "metaphysical tragedy") justifies another injustice. That makes no sense.
Posted by: Joachim | Jan 4, 2010 9:03:20 AM
A few more points in response:
1. Joachim: I am NOT saying one injustice justifies another. Rather, my point (and worry) is that the anti-DP crowd seems more troubled by injustices that result from (inevitable) human error when we are trying to do good via the criminal justice system than by injustices that are the product of human evil (such as crimes committed by Muhammad and Clemmons and the Fort Hood shooter).
I truly believe that injustice committed by human evil is metaphysically worse than injustice committed by human error while trying to do good. Most others likely agree, unless and until they are prepared to claim that US killings of Japanese innocents in Nagasaki are the moral equivalent of Nazi killings of Jewish innocents in Auschwitz. That is the point I was trying to make, not that one injustice actually justifies another.
2. Karl: I do not know if the death penalty makes us safer. I do know that some voters feel that way, and that feeling alone is often sufficient to justify a criminal law in our system. (Lots of folks foolishly think sex offender residency restriction make them safer even though there is considerable evidence to the contrary.) Most important, unless you feel 100% confident that the DP makes us less safe, it seems proper to leave this debate to a matter of public deliberation and decision.
Relatedly, if a majority of legislators/voters conclude, like you, that the symbolic value of the DP is marginal, they can get rid of it. And they have recently in NJ and NM. But in other states it seems legislators/voters generally want to retain the DP's symbolic value, perhaps for the NEXT case --- e.g., note many take comfort in knowing the Ft. Hood shooter and the 9/11 conspirators can be subject to the death penalty. The symbolic value to society may not be who actually gets the DP, but the possibility that we can at leas consider using our ultimate sanction to respond to ultimate evil.
3. Peter: I agree that the DP is subject to only "rough justice," but the same can and should be said about all other punishments, too. Is that reason to get rid of all imprisonment and all monitoring of sex offenders and all fines and all other forms of punishment?
Importantly, both voters and juries --- not to mention prosecutors and trial judges and appellate judges and governors --- give lots of thought to every single death sentence, while most other forms of punishment rarely get much thought at all. You may not agree with the judgments made by others concerning DP punishments, but at least those judgments tend to be deliberative. The same cannot be said about most other forms of punishment.
Posted by: Doug B. | Jan 4, 2010 9:46:33 AM
And so it goes: If in doubt, kill.
How sad.
Posted by: anon | Jan 4, 2010 10:35:02 AM
Hate to chime in at the last minute, but I have to disagree with Doug's last point. I will grant you that prosecutors and juries give great thought to charging or imposing the death penalty, but (at least in Alabama) my experience has been that our elected judges (Circuit and Appellate) and governors do not. Unfortunately, our juries have very a irregular impact on who gets executed: their "recommendations" for life being regularly disregarded and their "recommendations" for death being universally imposed. It seems when you take the life/death decision away from the jury and give it to the general electorate (through the judges) on every case you find that a kill-em-all-and-let-God-sort-em-out mentality dominates. Maybe not the best way to run a justice system.
Posted by: Talitha | Jan 4, 2010 11:59:26 AM
With regard to the comparing the State's execution of Willingham to Muhammed's killing of his victims:
So basically, this boils down to asking us to pat the State on the back because its actions are not as bad as those of a craven, universally despised serial killer? Do I have that right? Call me crazy, but I don't set the bar that low, even for government employees.
Posted by: NC lawyer | Jan 6, 2010 5:14:27 PM
