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October 28, 2011

Genuine questions about retributive justice after another (efficient) LWOP plea for mass murderer

6a0120a58aead7970c014e8758405d970d-120wiThis CNN story out of Florida, headlined "Man admits murdering 4 relatives on Thanksgiving, gets life in prison," reports on another notable mass murderer coping a plea to avoid a death sentence.  As I prepare to hit the road again and head off line, I am hopeful this post might prompt some extended engagement from fans of retributive justice about whether they would call this case an example of justice or injustice.   First, the basics:

A Florida man pleaded guilty Thursday to murdering four relatives on Thanksgiving Day in 2009, avoiding a possible death sentence after reaching a plea deal with prosecutors. After hearing from relatives of the victims, Palm Beach County Circuit Judge Joseph Marx sentenced Paul Merhige to seven life terms. As part of the agreement, the defendant agreed to waive any rights of appeal.

"You'll never see the light of day," Marx told the 37-year-old Merhige on Thursday, in front of a packed West Palm Beach courtroom....

Merhige was arrested in January 2010 at a Florida Keys motel after an "America's Most Wanted" viewer recognized him.... Merhige was then charged with four counts of premeditated murder and three counts attempted first-degree murder in the Thanksgiving night shooting deaths of his twin sisters, a 6-year-old cousin and a 79-year-old aunt at a family home in Jupiter, Florida.

One of the victims -- Lisa Knight, 33, who was one of Merhige's sisters -- was pregnant. Her husband, Patrick, was one of two other family members who survived after being wounded in the shooting rampage, authorities said. Family members suggested in interviewers that Merhige "had ongoing resentment" for some of his relatives, Jupiter Police spokeswoman Sally Collins-Ortiz said shortly after the shootings.

Patrick Knight, who was shot in the stomach, was among the family members who told the judge Thursday that he approved the plea deal. He explained that he wanted to "pick up the pieces" and did not want to endure "20 years" of appeals.   But Jim Sitton, whose 6-year-old daughter, Makayla, was among those gunned down, objected to the agreement as he wanted Merhige to go on trial and potentially face the death penalty....

The start of Merhige's trial had been set for January.  His public defenders had filed court documents expressing their intent to defend him using an insanity defense. After Thursday's court proceeding, State Attorney Michael McAuliffe released a statement in which he said that -- "after careful evaluation and consideration" -- he decided to accept Merhige's plea, having determined it is "an appropriate resolution to the case."

Noting the disparate opinions among the victims' family members and about the death penalty generally, McAuliffe said he felt it sufficient that Merhige "will have no hope of having favorable rulings by a court" and "will have no ability to affect ... the lives of those he harmed. I believe that seven consecutive life sentences recognize the heinous nature of the crimes and adequately punish the defendant," he said.

I am interested in retributivist perspectives on this case in part because I think fans of utilitarian theory could and should be pleased or at least content with how this tragic case has been resolved.  Due to this plea deal saving great time/energy and the imposition of an LWOP sentence, it is not hard for a committed utilitarian to believe and assert that adequate crime control benefits have been achieved here at limited costs.  (Of course, strong utilitarian believers in DP deterrence may be troubled a death sentence was not sought, but the lurking insanity issue should prompt a thoughtful utilitarian to acknowledge that an LWOP sentence was a likely actual or functional final outcome of this case even if death had been vigorously pursued.)

But I have no sense at all about how those committed to retributivist perspectives on punishment would now assess this case.  I assume some (many?) retributivists who agree with Kant that justice demands execution of all murderers may be troubled that Merhige will not be killed by the state.  And yet, I assume that even hard-core Kantians make some exception for truly insane killers, through it is unclear whether Merhige was truly insane when he committed his murders.  

Meanwhile, I know that there are some (many?) other retributivists who think nobody ever deserves a death sentence no matter how horrific the crime.  Are these retributivists happy abut the outcome here, or are they instead deeply troubled that Merhige pleaded guilty based on the threat of an (unjust) death sentence?  

And, for all retributivists, how much should the fact that Merhige killed so many people factor in to the justice analysis?  How about the fact that the victims were Merhige's relatives (i.e., does that make him more or less blameworthy)?  And where and how in the retributive justice analysis does the different sentiments of the surviving victims factor in?

As my post title is meant to make clear, my questions here are all very genuine because it is cases like this one that for me raise the most questions about how retributive justice should be assessed in real hard cases involving mass murderers with some arguments in mitigation.  I can readily understand how fans of utilitarian theory unpack and assess this kind of hard case (and other kinds of hard cases), but I am truly eager to hear comments from fans of retributivist theory about how unpack and assess this kind of hard case (and other kinds of hard cases).

October 28, 2011 at 10:58 AM | Permalink

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As a prosecutor not a theorist, I can only say that this is a reasonable resolution. If trial lawyers know anything its that nobody knows what a jury is going to do. As the dean of the local defense bar once told me, "trial is always the last resort".

Posted by: Dennis Skayhan | Oct 28, 2011 11:39:36 AM

Whether one thinks this is a good result or a poor one, the thing to bear in mind is that, without the realistic threat of the DP, it would not have come about. A "realistic threat" is one where the defendant knows, from the fact that convicted killers are, in fact, getting executed, that it might happen to him too.

Posted by: Bill Otis | Oct 28, 2011 12:57:22 PM

Dennis Skayhan: If trial lawyers know anything its that nobody knows what a jury is going to do.

Did the founders intentionally write this uncertainty into the Constitution as another check and balance on the executive branch? If so, did the government bypass this constitutional intention by minimizing jury nullification and by implementing plea bargains?

Regarding these life sentences, the question is not if the DP can be just. The question is can it always be just even after sufficient due process? Because the system is not infallible, the DP cannot be trusted. That is because executing an innocent person is murder even after sufficient due process, and murder condones murder.

Posted by: Anon | Oct 28, 2011 1:06:40 PM

Dennis - it seems to me that if there is such mistrust of the jury system, as it applies to capital cases .... in spite of the assertions of many here that claim evidence for an overwhelming public support of capital punishment ... then a better safeguard of justice, would be to adopt the French system by which the initial stages are under the review and investigation of an independent judge. I believe that if this judge finds that there is a case to answer and the investigation has been fair and thorough as guided by him, then a trial would normally follow, but with a new judge and the participation of a jury. The participation of an independent investigating judge would overcome the present situation in the US where the prosecutor is the main and overwhelmingly powerful protagonist, and which has seen the abuse and bias of procedure to the detriment of justice in many instances. Presumably there are significant cost savings as the system would appear to weed out many of those problems that later develop in US capital trials, frequently long after the conviction process. The system would be seen to be more equable to the accused than the practice of plea bargaining, which has the inherent risk of trapping the innocent, and in resulting in sometimes undue or unexpected leniency. Of course, the French don't execute those convicted of murder, but the system would seem to more completely resolve the issue of guilt or innocence in a way which the US system does not. Of course, for such a system to succeed, it is necessary to have a genuinely apolitical and independent judiciary. That would be quite a novelty for the US.

Posted by: peter | Oct 28, 2011 1:27:23 PM

Anon --

The way to get rid of plea bargains is for defense lawyers not to seek them and defendants not to agree to them. If the government stopped offering them, and insisted on going to trial on all charges in the indictment, the screams of outrage from the defense bar would be audible from here to Mars. The screams from the bench would be even louder; the workload would be impossible.

Personally I don't care for them, and never encouraged them, but BOTH sides seem to think they have a stake in them, so there's nothing to be done as far as I can see.

"Regarding these life sentences, the question is not if the DP can be just."

Wrongo. That is by far the most important question.

"The question is can it always be just even after sufficient due process?"

Since litigation is quite properly done one case at a time, the disposition of any given case rests on the merits of that case, not on the merits (or demerits) or virtues (or flaws) of other cases.

In addition, the quest for perfection will bring everything in human life to a halt, perfection being unattainable. The only relevant question is whether, by having Law X, we get more than we give up, even in light of the certain fact of human fallibility. The judgment of the great majority of Americans, who are quite familiar with the fact that we might execute an innocent person, is that the DP is worth it anyway, just as other government enterprises sure to result in death are worth it.

"Because the system is not infallible, the DP cannot be trusted."

There are hundreds of cases where no sane person could doubt guilt.

"That is because executing an innocent person is murder even after sufficient due process, and murder condones murder."

You don't get to write your own dictionary. Every execution undertaken in this country occurs as a result of a court judgment and order. For an officer of the state to act pursuant to a court order is not murder, since murder is defined as the UNLAWFUL and intentional killing of a human being.

Posted by: Bill Otis | Oct 28, 2011 1:28:12 PM

"Sane" people don't convict. Juries do. Given you probably think some who don't are "insane," your definitions are probably open to debate.

"Murder" is a a premeditated taking of life -- a technical legal definition will be more nuanced, but that's the basics. The person here clearly is setting forth a debatable standard -- if someone factually innocent is killed by the state, including via execution, it might fall w/i that term. Since this isn't a court room, the person, like someone who thinks abortion is 'murder,' can opine this. The person can be wrong, but yes, on comment boards, we are allowed to set forth our opinions on what the legal standard should be, especially if we use words colloquially. Like "sane" -- you are using it colloquially.

In this case, there was survivors. It suggests the guy would have been convicted even w/o a plea. As to "realistic threat," the tiny number of death sentences, even w/o those overturned by appeals, makes me wonder how "realistic" a death sentence is in many death eligible cases. Here, it's more likely, yes, but overall a tiny number of death sentences are handed down statistically speaking. This was true years back too. The gambling murderer would throw the dice, at least in most states, one would think.


I reckon "retributivist" - to shift gears - has various definitions, so the proper path for that philosophy would depend on the school one resides in. This would include how one feels about the value of execution, if keeping him in prison would be more "retributivist" overall, and so forth. One of those Breyeresque sentencing charts might be required here.

Posted by: Joe | Oct 28, 2011 3:39:02 PM

Joe --

"'Sane' people don't convict. Juries do. Given you probably think some who don't are 'insane,' your definitions are probably open to debate."

One more "probably" and you retire the championship.

Be that as it may, you know perfectly well that many, many cases are proved beyond and sensible doubt. Why not just admit it?

"'Murder' is a a premeditated taking of life -- a technical legal definition will be more nuanced, but that's the basics. The person here clearly is setting forth a debatable standard -- if someone factually innocent is killed by the state, including via execution, it might fall w/i that term."

Just like Anon, you don't get to write your own dictionary -- although it's revealing that abolitionists seek to do that. One would think that, if they had a winning argument, they wouldn't need to resort to a private language.

"Killing" is not a term of art. "Murder" is. Murder is defined by the law as a species of homicide, and one of the elements is that it be an UNLAWFUL killing. Shake and jive as you might, there is no getting around that.

"The person can be wrong, but yes, on comment boards, we are allowed to set forth our opinions on what the legal standard should be, especially if we use words colloquially."

Anon was not purporting to say what the standard "should" be. He was purporting to say what it IS, and his definition, though common propaganda among abolitionists, is flatly incorrect.

"As to 'realistic threat,' the tiny number of death sentences, even w/o those overturned by appeals, makes me wonder how 'realistic' a death sentence is in many death eligible cases."

With close to 1300 executions having taken place since the DP was restored by Gregg, and Florida being one of the leading DP states, the threat was realistic here. In addition, the consensus among those practicing in the field is that the possiblilty of the DP moves more than a few defendants to do exactly what this defendant did.

Posted by: Bill Otis | Oct 28, 2011 4:46:28 PM

Bill - "You don't get to write your own dictionary. Every execution undertaken in this country occurs as a result of a court judgment and order. For an officer of the state to act pursuant to a court order is not murder, since murder is defined as the UNLAWFUL and intentional killing of a human being."

You don't get to tell me what I can and cannot write. What about all the authorities I cited in support of an execution being murder? Oh, I didn't cite any? What? You mean it was only an opinion after all, and after you spent multiple comments saying we do not have to right to put words into other people's mouths? And here I thought you thought you found an Achilles' heel and bit into it, you pit bull, you.

I'll say it again, the execution of an innocent defendant is murder. Joe's analogy with abortion was a good one.

Posted by: Anon | Oct 28, 2011 5:37:56 PM

Anon --

"What about all the authorities I cited in support of an execution being murder? Oh, I didn't cite any? What?"

It takes an odd turn of mind to brag about having no authority to cite for what is said to be a definition.

These are your exact words: "Because the system is not infallible, the DP cannot be trusted. That is because executing an innocent person is murder even after sufficient due process, and murder condones murder."

Do you see anything in there stating or implying that it's nothing more than an opinion?

Not that it makes all that much difference. It's just nonsensical to have an "opinion" about the definition of a word, when that definition is already settled. You might as well say, "A cat is a mammal that lives in the ocean and weighs four tons." That is not an expression of an opinion. It's a statement of fact, but false. And so is your "definition" of murder.

And let there be no mistake about why you insist on using that locution. It's in order to be able to portray yourself as occupying the moral high ground, while your opponents on the DP are cheerleading for "murder."

Could you also supply us with the definition of "self-serving?"

Good grief. You might just as well define Kent and me as bloodlusters.

Oh.....wait.....you've been written out on that one.

P.S. Your link to "execution of an innocent" defendant makes no sense, since the news stories that show up are not about either executions or defendants.

Posted by: Bill Otis | Oct 28, 2011 6:14:02 PM

Personally, I am not a huge fan of these sorts of arguments. To me, the death penalty is an appropriate response to murder, and whether it saves costs or not is besides the point. However, given that it's the abolitionist side that has chosen to make cost the issue, then they have to accept these arguments. That they try to discount them shows, yet again, the sophistry and intellectual bankruptcy of most of the arguments advanced in favor of abolishing the death penalty.

Posted by: federalist | Oct 28, 2011 9:09:35 PM

"Do you see anything in there stating or implying that it's nothing more than an opinion?"

LMFAO, I guess Mr. Bill's comments are always only law and never opinion!!!!

Too frickin' funny. I can't be the only one laughing out loud at this.

Posted by: George | Oct 28, 2011 9:17:24 PM

George --

The difference, which you are evidently too dense to see, is that I don't claim that my opinions magically re-define words with well settled meanings.

Executions as undertaken in this country are not murder, and this would be true even if an innocent person were executed. If it's not unlawful, it's not murder. Executions are undertaken only under a court order, and therefore are not unlawful. Period. This really can't be changed by Anon's opinion or yours.

Posted by: Bill Otis | Oct 28, 2011 10:47:50 PM

"... it is not hard for a committed utilitarian to believe and assert that adequate crime control benefits have been achieved here at limited costs. (Of course, strong utilitarian believers in DP deterrence may be troubled a death sentence was not sought, but the lurking insanity issue should prompt a thoughtful utilitarian to acknowledge that an LWOP sentence was a likely actual or functional final outcome of this case even if death had been vigorously pursued.)"

Perhaps, law school utilitarians. Not those that believe that crime has to be eradicated as Job One and Job Last of government. There is an assumption that the way the law is today is acceptable. It is nuts and a crime itself. Its sole achievement is to generate lawyer employment and sinecures for other worthless government dependent workers. These self-dealing lawyers are rent seeking. This is a synonym for armed robbery, a gigantic organized crime heist costing the economy $trillions and victims 10's of thousands of lives.

The correct utilitarian view is that the murderer should have been executed before age 18, and that we would be 4 innocent murder victims ahead. That idea is out of the realm of imagination to the rent seeking, criminal preserving lawyer. Kill one with due process protections, save 4 from gruesome deaths with no due process.

I do have a tradition of retribution in my culture and upbringing. So I understand it. It is just misdirected. I would like to see the families of murder victims shoot appellate judges in the knees, not kill them. I include the families of all future murder victims of LWOP inmates. If you kill these feminist running dog judges, they will be replaced by grateful competitors. Just repeatedly shoot them in the knees every time they save a criminal from incapacitation who later goes on to kill. Every procedure to do the same by the legislative branch should result in the publication of the names of the lawyer internal traitors and rent seekers. Then shoot them in the knees. If that does not work, they should be boycotted by all service and product providers, until they die of starvation, of medical conditions, or freeze to death without heat. To deter.

Such violent self-help has full justification morally, intellectually, and in public policy. These lawyers have granted themselves absolute tort immunities. If torts is to replace violence, then the obverse is logically true. Immunity fully justifies violence. It is even a duty to preserve the public safety, to punish those attacking it. Then ask for a jury trial if caught. Juries will support the public safety, despite the threatening indoctrination from the bench. They will liberate such heros holding appellate judges accountable for their totally irresponsible, rent seeking decisions.

Posted by: Supremacy Claus | Oct 28, 2011 10:55:39 PM


From:
JAG aka Just Another Guy
▼available by email to▼
—► [email protected] ◄—
▲available by email to▲
~
To:
Bill Otis (Esq.)

Good afternoon.

What is your take on the realism of threat were "getting executed" replaced by "processed via a 'Night & Fog' decree' " ?
~
A "realistic threat" is one where the defendant knows, from the fact that convicted killers are, in fact, —►getting executed◄—, that it might happen to him too.

Posted by: Bill Otis | Oct 28, 2011 12:57:22 PM

Posted by: JAG | Oct 29, 2011 2:27:26 PM

Bill - "P.S. Your link to "execution of an innocent" defendant makes no sense, since the news stories that show up are not about either executions or defendants."

The execution of an innocent defendant is comparable to the killing of an innocent bystander. Both imply there was someone who should be killed but the wrong person, an innocent person, was killed instead. Since Government Misconduct is not lawful a murder conviction based on Government Misconduct is not lawful, and is therefore murder in one degree or another. Of course the government would argue the misconduct was merely harmless error and the innocent person should be executed (murdered) anyway.

Posted by: Anon | Oct 29, 2011 3:23:28 PM

Execution of an innocent could also be negligent homicide or accidental.

Posted by: JAG | Oct 29, 2011 4:24:06 PM

"1300 executions having taken place since the DP was restored by Gregg"

In Florida, there are single digit executions.

http://www.dc.state.fl.us/oth/deathrow/#Statistics

476 are from Texas alone, leaving 800 or so left for the rest.

http://www.deathpenaltyinfo.org/documents/FactSheet.pdf

Given the number of actual capital cases involved, the betting capital defendant would in many cases take a plea. It is of limited value. As to federalist, cost is cited by abolitionists as one concern. It is in no way "the" issue raised. And, since it DOES cost more, putting aside if it is worth it, a matter of debate, I don't know what "sophistry" is involved on the point particularly.

Posted by: Joe | Oct 29, 2011 5:10:30 PM

Anon --

"The execution of an innocent defendant is comparable to the killing of an innocent bystander."

Only in the sense that an orange is "comparable" to the moon, since both are round.

Anon, you have adult manners and I appreciate it, certainly compared with some others who comment here. But your line of argument is pretty darn close to nonsensical.

Let's recap.

First you said, "...the execution of an innocent defendant is murder," providing a link to the words "execution of an innocent."

I clicked on the link, thinking, as anyone would, that I'd find a story about the execution of an allegedly innocent defendant.

I read the first four stories before I stopped. The first, third and fourth are about street shootings: the random killing of innocent bystanders by some neighborhood thugs. The second was, so it seems, about the killing of a rabbit by someone who was hunting a deer.

None of them could be considered even remotely relevant to any issue involved in a rational discussion of the death penalty. As I said before, none of them involved either executions or defendants. To the contrary, except for the story of the deer and the rabbit, at best they concern criminals who, with any luck, will BECOME defendants. If and when they do, I'm sure there will be no shortage of defense lawyers all ready to snarl about how innocent they are.

If all you're saying is that people can be killed by mistake, fine, of course that's true. But it has nothing to do with the the definition of murder. Indeed, a killing by mistake CANNOT be murder, although it can be a lesser degree of criminal homicide. But NOTHING undertaken at the order of an American court in this day and time is murder. The person acting to obey a court order by definition does not have criminal intent.

"Since Government Misconduct is not lawful a murder conviction based on Government Misconduct is not lawful, and...therefore [the ensuing execution is] murder in one degree or another."

Please cite one case in the last 50 years -- just one -- in which a court has held that a person was executed because of government misconduct.

That is a specific request. I'm not looking for an abolitionist website with someone's biased opinion. I am looking for something neutral and authoritative: The judgment of a court.

"Of course the government would argue the misconduct was merely harmless error and the innocent person should be executed (murdered) anyway."

Just as you said, correctly, that I don't tell you what you can and cannot write, you do not tell the government what it will or will not argue. But if a point be made of it, your statement is beneath you. It attributes appalling immorality to (unnamed) persons in the government. Do you honestly think the government -- even in this not-so-wonderful administration -- is full of employees who believe that innocent people should be executed?

With all respect, if that is indeed what you think, you have lost touch with reality.


Posted by: Bill Otis | Oct 29, 2011 5:21:55 PM

Joe --

"In Florida, there are single digit executions."

Not if you're counting the same way you counted executions in Texas. If you are being consistent, the comparable number in Florida (executions since 1976) is 70. That's not "single digits."


Posted by: Bill Otis | Oct 29, 2011 5:53:27 PM

"Single digit executions" over a thirty year span wouldn't be single digit. I supplied the link, so people can see what I mean. Being picayune doesn't change the bottom line. 70 over about a 35 year span is pretty telling on that front.

Posted by: Joe | Oct 29, 2011 6:41:06 PM

Why is it picayune for me to treat the numbers for Florida in exactly the same way as you treated those for Texas?

BTW, Florida has the fourth most active death penalty among the states. Do you think that's "pretty telling on that front?"

Posted by: Bill Otis | Oct 29, 2011 7:53:50 PM

hmm sorry bill but i have to call you on this statement!

" The person acting to obey a court order by definition does not have criminal intent."

Sorry the United States KILLED for all time in the 1940's post second world war trials the EXCUSE "I was JUST following orders"

sorry if you execute....i.e KILL an innocent you ARE guility of murder! or course SO IS THE STATE that issued the ORDER!


oh i know NOBODY will ever be tried for it. unless it eventualy manages to KILL the wrong person and is overthrown...but it's STILL MURDER!

Posted by: rodsmith | Oct 30, 2011 1:29:27 AM

Execution of the wrong person by official action, after adequate due process, should be a wrongful death tort. Such an action would require the passage of legislation allowing that claim.

Posted by: Supremacy Claus | Oct 30, 2011 4:16:05 AM

rodsmith --

A Nazi soldier's following the 1940's order of a military officer in a rogue regime (to say the least) -- one imposed and maintained by force -- is, shall we say, a mite different from a civilian employee of the United States government in the 2000's following the order of a judge in a democratic government imposed and maintained by voting.

Posted by: Bill Otis | Oct 30, 2011 7:48:51 AM

In a good moment in legal history, the Nuremberg Trials hanged many judges obeying German law after it was altered by the Nazis. That is an excellent model to follow today. Judges are the enforcers for a criminal cult enterprise. It has not corrupted our government, it has taken total control of our government. It has imposed unconstitutional, sicko, supernatural doctrines on our secular nation. It is in utter failure in fulfilling the role of government. It allows 90% of crime to go unanswered. When it has a guy, it is the wrong guy 20% of the time. It is incompetent and ineffective at all the goals of the law. It is great at hanging on to power, and plundering $trillion each year. Despite the mind crushing effect of law school, it makes 99% of policy decisions. That effect explains why government does nothing well except for rent seeking. It has granted itself lawless self-dealt immunities. So there is no recourse.

Posted by: Supremacy Claus | Oct 30, 2011 9:52:09 AM

In Bill's favorite state of Virginia, no statutory definition of murder includes unlawfulness as an element. If a Virginia official is charged with executing someone who was factually innocent (or mentally retarded or underage), the official would have to raise the lawfulness of the execution as an affirmative defense and he would have the burden of proof. If the official didn't know, at the time of the execution, that the person being executed was factually innocent or retarded or too young, I have no doubt that he would be acquitted. But if the official DID know such facts at the time of execution, I'm not certain the finder of facts would be persuaded by his affirmative defense.

Posted by: arfarf | Oct 30, 2011 11:30:43 AM

arfarf --

Do you write fantasy in your day job too? The idea that someone who executed a defendant under a court order would ever be charged with murder, much less brought to trial, in Virginia or elsewhere, is completely nuts, as you couldn't help knowing.

Of course the main part of the fantasy is that we're executing all these innocent people. It's complete baloney, and you know that too.

Oh, wait, I forgot. There was the Virginia execution of Mr. Innocent himself, Roger Keith Coleman. Why, he was SO innocent that.........

Etcetera.

Posted by: Bill Otis | Oct 30, 2011 1:42:17 PM

What if an innocent is executed?

David B. Rivkin Jr. and Andrew Grossman respond to question regarding his Op-Ed article defending capital punishment.

What if the state executes an innocent person?

That's a central question in the debate over the death penalty that David B. Rivkin Jr. and Andrew Grossman did not address in their Oct. 26 Op-Ed article defending capital punishment on constitutional grounds, says Thomas Wright of Oak Park, Ill.:

"Rivkin and Grossman have good arguments but miss an elephant: the likelihood of irreversible error. There being no appeal from the grave, we have to accept the certainty of a mistaken execution when we accept the death penalty. Given the heinous nature of a case that calls for death as the punishment, there is a strong pressure to indict, convict and punish someone. And many of those someones will be innocent.

"The best argument against the death penalty is that it is neither necessary nor sufficient in preventing murder — states with it have higher murder rates than states lacking it. Even if this is not causation, capital punishment is not preventing murder in Texas or Georgia."

http://www.latimes.com/news/opinion/letters/la-le-postscript-death-penalty-20111029,0,1438395.story

Posted by: Anon | Oct 30, 2011 3:06:11 PM

Bill -

Get a grip. I did not say that Virginia ever has, or ever would, charge anyone with murder for executing someone who is actually innocent. I happen to sincerely and firmly believe that everyone executed in Virginia since Furman was stone-cold guilty. I was just commenting on what you said above, that "For an officer of the state to act pursuant to a court order is not murder, since murder is defined as the UNLAWFUL and intentional killing of a human being." In Virginia, "unlawful" is not part of the definition of murder. The lawfulness of the execution is an affirmative defense and like all affirmative defenses it only comes into play IF a person is charged with the offense. Pointing that sequence out doesn't mean I think anyone will be charged that way. But IF (hypothetically) such a charge was made, I stick by what I said: If the official did not know at the time of the execution that the defendant was innocent, he would be acquitted. If the official knew the defendant was innocent but carried out the execution anyway, the finder of facts could go either way.

Posted by: arfarf | Oct 30, 2011 4:23:51 PM

"Even if this is not causation, capital punishment is not preventing murder in Texas or Georgia."

Is the LACK of capital punishment preventing murder in New York?

No.

Is the LACK of capital punishment preventing murder in Michigan?

No.

Give it a rest, gentlemen. The question is not whether X punishment will certainly prevent murder. It won't, we alread know that. The DP won't and LWOP won't.

The record, over the last generation, is that, as we have renewed executions, and we've now had hundreds of them, the murder rate is half of what it was. Half.

Go ahead and say that the punisment has nothing to do with the incidence of the crime. Since its inception, the human race has known better.

The only realistic question is whether what we get from the DP is worth what we give up to get it. What we get is something that, for some gruesome murders, or multiple murders, is the only punishment within shouting distance of fitting the crime. What we give up, inter alia, is allowing the possibility that the government will kill an innocent person.

The possiblility is remote, as the honest among you will admit (that's the main reason you haven't proved it in court for more than 50 years). But it exists. It's also possible -- indeed it's an established fact -- that the government's FAILURE to impose the DP will result in the deaths of innocent people, as a determined and clever killer is kept alive and, predictably, does it again. You refuse to talk about that, but the courts have not been so reticent, see Allen v. Woodford, available here: http://scholar.google.com/scholar_case?case=4023852550319512992&hl=en&as_sdt=2&as_vis=1&oi=scholarr

The final paragraph of that unanimous Ninth Circuit case reads:

"Evidence of Allen's guilt is overwhelming. Given the nature of his crimes, sentencing him to another life term would achieve none of the traditional purposes underlying punishment. Allen continues to pose a threat to society, indeed to those very persons who testified against him in the Fran's Market triple-murder trial here at issue, and has proven that he is beyond rehabilitation. He has shown himself more than capable of arranging murders from behind bars. If the death penalty is to serve any purpose at all, it is to prevent the very sort of murderous conduct for which Allen was convicted. Therefore, we affirm the district court's denial of Allen's petition for a writ of habeas corpus."

If we had used the death penalty in time in Allen's case, three innocent people would be alive today.

Does that make a difference? Do those people just not count?


Posted by: Bill Otis | Oct 30, 2011 4:25:22 PM

arfarf --

"I did not say that Virginia ever has, or ever would, charge anyone with murder for executing someone who is actually innocent."

Then your posts about Virginia and Virginia law are a nice academic excursion, but pointless.

"I happen to sincerely and firmly believe that everyone executed in Virginia since Furman was stone-cold guilty."

Thank you. You might want to take that up with the Roger Keith Coleman Innocence Club.

P.S. It's more than passing strange that abolitionists seem to think that by repeatedly typing sentences containing the word "innocent" and the word "executed," they can prove that an innocent was executed. Maybe I can win the Mr. Universe contest by typing sentences that contain the words "Bill Otis" and "muscular." It makes just as much sense.

Posted by: Bill Otis | Oct 30, 2011 4:39:46 PM

arfarf --

One more question, in light of the fact (if it is a fact) that you know about Virginia executions.

Are you aware of any reason Virginia ought not to have executed the Beltway sniper? Dishonest police work? Incompetent counsel? Any serious question about guilt? Prosecution motivated by bias? His ten random, ambush murders (it might have been more than that, I forget) didn't warrant it? Anything?

Posted by: Bill Otis | Oct 30, 2011 4:50:39 PM

"rodsmith --

A Nazi soldier's following the 1940's order of a military officer in a rogue regime (to say the least) -- one imposed and maintained by force -- is, shall we say, a mite different from a civilian employee of the United States government in the 2000's following the order of a judge in a democratic government imposed and maintained by voting."

Hmm i suggest you go back and actualy read your history books. Hitler was ELECTED by VOTING under your statement above that means his govt LEGAL....not a rogue one! So they WERE following the LEGAL orders of their LEGAL GOVT! just like your 2000's govt offical here following thiers! it's no diff!

sorry i still say if you kill someone who SHOULD NOT HAVE BEEN KILLED....i.e..INNOCENT! you ARE a MURDERER! i'm sure thinks to the lawyers who now run this country in their conspiracy with the 1% who have all the money! they will NEVER be called on it in THIS LIFE! but sooner or later in the NEXT ONE they will GET THEIRS!

Posted by: rodsmith | Oct 30, 2011 5:21:06 PM

Bill -

You seem to think I'm an abolitionist. I'm not. As for your question, I don't claim to have any special knowledge about the Beltway sniper's case, but I'm not aware of any reason why Virginia should not have executed him.

Posted by: arfarf | Oct 30, 2011 6:16:52 PM

rodsmith --

Actually, Hitler did not become Chancellor via election. It was an appointed office, and the aging President von Hindenburg (who had beaten Hitler in both rounds of the 1932 election) appointed him to resolve a stalement in the German government. Hitler took the oath as Chancellor in January 1933.

He moved quickly and shrewdly to consolidate power. By July of that year, the Nazis had been declared the only legal party in Germany.

In the early summer of 1934, Hitler had his main political rivals murdered in what became known as the Night of the Long Knives. In August 1934, von Hindenburg died, and the office of President was declared vacant. Hitler was appointed Leader by the cabinet he controlled. About two weeks later, a plebisite was held that overwhelmingly approved the merger of the Chancellorship and the Presidency, effectively making Hitler the unchecked leader of Germany, not to mention commander-in-chief.

Since Hitler achieved power first by appointment, and then through murder and banning of adversary political parties, I'm going to stick with my assertion that the German government that ran the country from 1940-45 was a rogue regime. You are partly correct, however, in doubting whether my assertion that it achieved and held power by force is fully correct. It is partly correct, but your objection is not without substance, and to that extent I concede your point.

The greater point remains, however, that orders given by a military officer in Nazi Germany are not even remotely comparable to judicial orders given in the United States today.

Posted by: Bill Otis | Oct 30, 2011 6:44:21 PM

arfarf --

Thank you. I suspected, although I didn't know, that you are not an abolitionist. Abolitionists tend not to use phrases like the one you did -- "stone-cold guilty."

Posted by: Bill Otis | Oct 30, 2011 6:54:25 PM

hmm

"Actually, Hitler did not become Chancellor via election. It was an appointed office, and the aging President von Hindenburg (who had beaten Hitler in both rounds of the 1932 election) appointed him to resolve a stalement in the German government. Hitler took the oath as Chancellor in January 1933."

ahhhhhh WRONG!

http://www2.dsu.nodak.edu/users/dmeier/Holocaust/hitler.html

Hitler's Rise to Power
Once released from prison, Hitler decided to seize power constitutionally rather than by force of arms. Using demagogic oratory, Hitler spoke to scores of mass audiences, calling for the German people to resist the yoke of Jews and Communists, and to create a new empire which would rule the world for 1,000 years.
Seeking Electoral Success: 1924-1929
In 1924, Hitler promptly reestablished the NSDAP in Munich. The party was organized according to the Führer principle: it was headed by the Führer, his deputy, and the national leadership with the Reichsleiter heading nation wide departments of the party. The regional political organization descended from the provincial level (Gau), to the county (Kreis), local district (Ortsgruppe), and cell (Zell) to the local bloc (Block). Party organizations, in part para-military, such as the SA (Brownshirt storm troopers), SS (Blackshirt storm troopers), HJ (Hitler Youth), and the BdM (League of German Girls), which were also organized according to the Führer principle, were closely linked to the party, as were the affiliated associations (DAF (German Workers' Front), NSV (National Socialist People's Welfare), and the professional organizations of physicians, teachers, lawyers, civil servants, etc.).
Rise to Power: 1930-1933

The Nazis gradually devised an electoral strategy to win northern farmers and white collar voters in small towns, which produced a landslide electoral victory in September 1930 (jump from roughly 3% to 18% of the votes cast) due to the depression. Refused a chance to form a cabinet, and unwilling to share in a coalition regime, the Nazis joined the Communists in violence and disorder between 1931 and 1933. In 1932, Hitler ran for President and won 30% of the vote, forcing the eventual victor, Paul von Hindenburg, into a runoff election. After a bigger landslide in July 1932 (44%), their vote declined and their movement weakened (Hitler lost the presidential election to WWI veteran Paul von Hindenburg in April; elections of November 1932 roughly 42%), so Hitler decided to enter a coalition government as chancellor in January 1933.

Upon the death of Hindenburg in August 1934, Hitler was the consensus successor. With an improving economy, Hitler claimed credit and consolidated his position as a dictator, having succeeded in eliminating challenges from other political parties and government institutions."


Hmm sounds like a legal govt to me!

Posted by: rodsmith | Oct 30, 2011 11:46:00 PM

rodsmith -

I guess it's easy to make a "legal" government if you ban opposition parties and murder your adversaries. But such a government would not be recognized as legal anywhere in the United States, and I repeat that obeying the order of a court of the United States is not, and would not be considered to be, anything like obeying the order of a Nazi commander in WWII.

I would also note that your account of Hitler's rise to power does not conflict with mine at all, albeit that there are different points of emphasis.

You're a good man, rodsmith, but I have to part ways with you on this one.

Posted by: Bill Otis | Oct 31, 2011 12:14:54 AM

hmm we had no trouble for 50 years going along with the LEGAL govt of SOVIET RUSSIA and we still are sucking up to the LEGAL govt of COMMUNIST CHINA!

sorry he go in via a LEGAL VOTE the prior actions are irrelivent....the population voted him in...THAT MADE IT LEGAL!

which of course is more than the govt's of SOVIET RUSSIAN and COMMUNIST CHINA can say even now!

Posted by: rodsmith | Oct 31, 2011 2:02:05 PM

as for this statement!

" I repeat that obeying the order of a court of the United States is not, and would not be considered to be, anything like obeying the order of a Nazi commander in WWII."

i will give you that one. The ones obeying here have LESS cover! at least the ones in nazi germany KNEW they would be SHOT for disobeying!

Posted by: rodsmith | Oct 31, 2011 2:03:44 PM

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