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January 22, 2012

Another tough case — murder of guard by murderer serving LWOP — for death penalty abolitionist crowd

I am always impressed by the passion, and often moved by pragmatic arguments, of those categorically opposed to the punishment of death.  But, as I have explained before, my basic commitment to consequentialist punishment perspectives makes me disinclined to be categorically opposed to any punishment and some crimes by some offenders almost seem to demand death (or something even more extreme?) as a punishment.  The latest example of such a crime comes via this news report from Arkansas:

A female prison guard searching barracks for contraband was stabbed to death by an inmate [Friday] at the East Arkansas Unit near Brickeys, state prison officials said.

Sgt. Barbara Ester, 47, sustained multiple stab wounds in the attack and died later at a Memphis, Tenn., hospital, state Department of Correction spokeswoman Shea Wilson said. Wilson identified the inmate as Latavious Johnson, 30, a convicted murderer who is serving a sentence of life without parole.

The prison spokeswoman said Ester, a 12-year veteran of the prison system, was in a prison barracks checking on an inmate who was wearing an unauthorized pair of tennis shoes when the attack occurred about 12:30 p.m.

She was stabbed multiple times in the abdomen with what Wilson described as a shank but managed to walk to the prison unit’s infirmary before collapsing.   She was transported to the Elvis Presley Memorial Trauma Center in Memphis, about 40 miles away, where she died, Wilson said.

If the death penalty is categorically unvailable as a punishment, I struggle to figure out just how a civilized society is can and should reasonably respond to a murderer serving LWOP who brutally murders a prison guard.  I suppose we can (and should) just lock such a  criminal forever after in a cage with no human contact and basic food rations, but such treatment strikes me as a form of torture that is even less humane than death as a punishment.  

January 22, 2012 at 12:09 PM | Permalink

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"If the death penalty is categorically unvailable as a punishment, I struggle to figure out just how a civilized society is can and should reasonably respond to a murderer serving LWOP who brutally murders a prison guard."

Bingo.

Doug Berman summarizes in one sentence why the law should abjure categorical rules, for capital punishment or anything else. To embrace categorical rules is to say, "We're going to decide some things in advance, no matter what the facts." The very phrase, "no matter what the facts," spills the beans in this debate. Nuanced thinkers, and societies influenced by nuanced thinking, wisely refuse to take legal and punishments off the table "no matter what the facts."

My discussion of this same case went up on Crime and Consequences yesterday, http://www.crimeandconsequences.com/crimblog/2012/01/were-just-as-safe-with-lwop-ho.html

Posted by: Bill Otis | Jan 22, 2012 12:54:15 PM

Can someone please explain why a mandatory death sentence in this case is prohibited by the language of the Constitution?

How would it offend any standard of decency?

Posted by: federalist | Jan 22, 2012 1:02:49 PM

if i'd been working there .... that article would be followed with a second one with the following headine

"Inmate who stabbed to dead a female prison guard was killed while being taken into custody"

no muss! no fuss!

Posted by: rodsmith | Jan 22, 2012 2:55:21 PM

for those who want to complain!

sorry anyone stupid like this needs to be removed from the gene pool before they can breed!

"The prison spokeswoman said Ester, a 12-year veteran of the prison system, was in a prison barracks checking on an inmate who was wearing an unauthorized pair of tennis shoes when the attack occurred about 12:30 p.m."

Posted by: rodsmith | Jan 22, 2012 2:56:37 PM

There is a logical fallacy which somehow leads legislators to take "death" off the table.

The idea the "Life Without Parole" isn't a death sentence is silly.

It IS a death sentence where the state gets to choose where you die.

Practically, it is no different than the average death row inmate who ends up sitting on the row for most of his/her life anyway.

Some say that death is less tortuous than life without parole because you don't have to face a lifetime of poor food, rape and beatings. In some ways, I agree.

Posted by: jaimekid | Jan 22, 2012 3:24:26 PM

Your "consequentialist" statement, along with your reference to the abolitionist "crowd," makes it pretty clear what you're not interested in considering about the matter, Professor Berman

Your post is not an invitation to debate, nor is your blog a place to do it objectively

Perhaps you are saving it for the Ohio study committee?

Posted by: anon2.5 | Jan 22, 2012 4:14:11 PM

"crowd" is a great term for abolitionists. Starting with the execrable Richard Dieter and moving on from there.

Posted by: federalist | Jan 22, 2012 4:23:34 PM

I have been hearing for years how the blood of any innocents executed will be on the hands of those who support the death penalty. Using the abolitionists' own logic, Ester's blood is on their hands. We can point to other cases just like this (Donna Payant) where innocents died because pablum pukers refused to give some thug his due. Meanwhile, there is not one accepted case of an innocent being executed in the modern DP era.

I guess abolitionists are just a bunch of bloodlusters.

Posted by: TarlsQtr | Jan 22, 2012 5:02:45 PM

Are the trials of defendants who are accused of committing a murder while incarcerated somehow less susceptible to the errors or intentional misconduct that have led to wrongful convictions of other defendants? Or do you think that an opposition to the death penalty which is premised on the fallibility of our system is somehow illegitimate?

Posted by: pc | Jan 22, 2012 5:56:08 PM

anon2.5,

See the little white box at the bottom of the screen that allows you to post? That is your invitation to debate. You could have expressed sincere regret for her death and provided a cogent argument to why you are still an abolitionist.

Unfortunately, you instead just used it to deflect the obvious, that your abolitionist policies kill innocent people.

Posted by: TarlsQtr | Jan 22, 2012 7:59:36 PM

Prof. Berman: I will not damage your credibility by agreeing with anything you say, given my counter-charisma characteristic.

Question. What prevents you from moving from being a consequentialist to becoming an utilitarian at the policy level. I oppose general deterrence as an argument for the death penalty since one may not punish a person fairly for the speculative, future crimes of others he never met. But what is wrong with getting rid of the person for the benefit of the group (specific deterrence)? What if you executed 10,000 people a year, but saved more than 10,000 murder victims and $trillions in damage to the economy not by general deterrence, but by just getting rid of people causing the deaths and damage?

Posted by: Supremacy Claus | Jan 22, 2012 8:11:53 PM

pc --

Do you have any evidence that Johnson was not guilty of the murder for which he was convicted? Do you have any evidence of prosecutorial misconduct? Of any error whatever that a reasonable person would think affected the jury's determination?

Absent any of that -- and it's absent from your post -- your position is an excellent illustration of exactly what I was saying. To adopt a no-matter-what ban on the death penalty would eliminate it for those for whom there is no sensible doubt of either guilt or having been afforded a fair trial.

This is not that hard. Where there is any reasonable basis for suspecting the defendant didn't do it, or was railroaded, no death penalty. In the hundreds of cases not meeting that description, the generalized nostrum that human beings are fallible is not more than that -- a generalized nostrum.

P.S. You also whistle right past the fact that fallibility cuts both ways. To FAIL to execute a violent and dangerous man like Johnson means that the inevitable fallibility of prison security will lead to more killings of exactly the kind noted in the article.

Posted by: Bill Otis | Jan 22, 2012 8:25:58 PM

We often discuss the benefits of mandatory guidelines, in reducing crime by 40% across the board.

This is a report on homicide and suicide in jails and prisons.

http://bjs.ojp.usdoj.gov/content/pub/pdf/shsplj.pdf

The surprise message is that jail and prison homicides dropped by 90% in the same period. Prisoners, especially violent offenders, were marked beneficiaries of mandatory sentencing guidelines.

Posted by: Supremacy Claus | Jan 22, 2012 10:10:59 PM

PC: "Or do you think that an opposition to the death penalty which is premised on the fallibility of our system is somehow illegitimate?"

It is inconsistent. You should advocate the stoppage of all injurious human activity until perfected. That includes medicine, transportation, sports, work, all of which result in the deaths of innocent people, including walking as a pedestrian.

Posted by: Supremacy Claus | Jan 22, 2012 10:21:17 PM

Hypo 1) What if this guy is already on death row? What punishment then? Forfeiture of post-conviction claims / instant execution? Different method of execution? Doubtful.

Hypo 2) What if this guy did not brutally kill the female prison guard, but non-brutally assaulted a male prison guard who had a bad reputation? Same result -- death penalty?

As this illustrates, this case does not necessarily call for the death penalty, although it is close.

Posted by: Alex | Jan 22, 2012 11:57:09 PM

Bill,

You say it's not hard. But here's where it's hard for me.

How do you ensure that it really is only those for whom there is absolutely no reasonable basis to question their guilt that are subjected to the death penalty? If such a rule were in place, and that rule held fast always, my objections to the death penalty would be much diminished (though not eliminated).

Yet I see a system where prosecutors (and certainly defense lawyers too) push the boundaries of any provision that might serve their ends; the meaning and rigidity of no "reasonable basis" become less absolute, and more susceptible to loosening where the circumstances of the crime demand it. You might (or might not) allow that there could be some marginal fallibility with such a rule, practically of little concern, but there I smell the camel's nose.

Or am I just being too cynical?


Posted by: SJS | Jan 23, 2012 12:40:10 AM

SJS --

I don't think the problem is cynicism. I think the problem is that abolitionists allow fallibility to become paralysis.

One can ask questions until the cows come home. The problem with infinite doubt is that it disables us from executing anyone at all, e.g., Timothy McVeigh. As that example and many others illustrate, no reasonable person could claim that there are no cases so clearcut that to continue to doubt is just frivolous.

There is room to worry about the camel's nose if the camel might be following it into the tent. But we have 35 years of post-Gregg experience to tell us the camel is comatose. When we have 40 or 50 executions annually, as we do now (and as has been the case for years); and when capital cases take 10 or 12 yeas of the most excruciating legal review literally in the history of the world, worrying about the camel (careless infliction of the DP) is like worrying about the earth's getting destroyed by a comet.

Finally, as I pointed out, and as this case makes quite clear, there are risks to NOT executing violent men who continue to be dangerous. There is no broadly accepted proof that the country has executed a single innocent person for at least 50 years, but there is proof positive (see story) that an innocent person was killed LAST WEEK because we REFRAINED from imposing the DP on Mr. Johnson the first time.

Posted by: Bill Otis | Jan 23, 2012 1:42:05 AM

sorry but i'm going to have to give bill this one!

"There is room to worry about the camel's nose if the camel might be following it into the tent. But we have 35 years of post-Gregg experience to tell us the camel is comatose. When we have 40 or 50 executions annually, as we do now (and as has been the case for years); and when capital cases take 10 or 12 yeas of the most excruciating legal review literally in the history of the world, worrying about the camel (careless infliction of the DP) is like worrying about the earth's getting destroyed by a comet."

as long as we make sure to leave room for the odd and occasional case where they MIGHT be a problem in THAT case. Then i have no problem with the application of the Death Penalty!

the problem now is we seem to have a problem in that area as a resent thread here shows.

Posted by: rodsmith | Jan 23, 2012 2:16:26 AM

we don't have a happy medium positon in this country for the most part we have two groups

the Govt and and the Death Penalty supports willing to do WHATEVER to execute convicted individuals

and the other side that includes a signifcant number of Defense Attorneys willing to do the same to STOP THEM!

i'm not going to get into tarls statement that we have NOT executed an innocent in modern times becasue considering the number we kill each year and the number of people now cleared for whatever reason PLUS the information coming out of the cases in TEXAS i'm pretty sure we have! but i CAN'T prove it!

Posted by: rodsmith | Jan 23, 2012 2:19:33 AM

The doubt I express is not with respect to certain killers whose guilt is beyond question; one could play the "infinite doubt" game but that is not what I intended.

The doubt that I harbor is whether we can implement a rule that mandates that only those who objectively are guilty beyond any reasonable question may be executed. Your comment about the extent of capital case review is well-taken; that should lessen the occurrence of, and would ideally eliminate, wrongful executions. But in such reviews, I still see great weight placed on the kind of evidence that has been shown all-too-often unreliable - in particular, eyewitness testimony and confessions. Further, I have serious doubts that prosecutors, and judges, would hew to the rule when the heinousness of a particular crime tempts otherwise. The camel that concerns me is not a careless animal, but a righteous one. I wish I could agree with you that, given such a rule, the likelihood of executing an innocent is akin to that of earth's obliteration, but I don't.

Separate from the point considered above - you are dead right that not executing a set of (at least mostly) violent and guilty killers will probably result in more deaths of innocents, at least given the current state of our carceral systems. If the issue were purely a utilitarian question about which course of action produces fewer innocent deaths, it would to me be a simple issue. But I don't see it so simply.

Posted by: SJS | Jan 23, 2012 3:02:10 AM

like war and watching sports, it is pretty safe to say that the death penalty primarily exists to satisfy male insecurity by enabling wimps to pretend that they are tough.

Erika :)

Posted by: virginia | Jan 23, 2012 5:41:11 AM

I mean, even pointing out the obvious that for someone who has strong moral beliefs against the death penalty, there are no "tough" cases or that if it turns out that the inmate killed the guard to be given the death penalty its not death penalty opponents who have "blood on their hands" seems rather pointless.

especially since rather than even attempting to debate, the armchair death penalty warriors here will just unleash a stream of vile personal insults in an effort to show how tough they are.

Erika :)

Posted by: virginia | Jan 23, 2012 5:54:53 AM

Dexter the Showtime serial killer kills for all the right reasons. Dexter the government sanctiioned serial killer kills for all the right reasons. Therefore killing is good if done for the right reasons. So maybe the question should be did this inmate think he killed for the right reasons? If so does that mitigate against the DP?

Posted by: Anon | Jan 23, 2012 6:40:31 AM

I oppose the death penalty for one reason and one reason only:
Murder remains murder no matter how it is dressed up and made clean and safe seeming. I have no wish to be a party to murder.
As to this instance: Having 'served time, I have some concerns about what was actually going on with/between the guard and the inmate. The procedure used with contraband doesn't seem to have been followed.
But, as with so much of the "discussion" of these sorts of issues, here - virgins will write sex manuals.

Posted by: tim rudisill | Jan 23, 2012 8:06:17 AM

Erika stated: "like war and watching sports, it is pretty safe to say that the death penalty primarily exists to satisfy male insecurity by enabling wimps to pretend that they are tough."

Like political correctness and progressivism, it is pretty safe to say that abolitionism primarily exists to satisfy metrosexual insecurity by enabling cynical and cold-hearted individuals to pretend that they are "compassionate."

Posted by: TarlsQtr | Jan 23, 2012 9:26:03 AM

Tim Rudisill,

Your analysis has one fatal flaw. The legal killing of an individual by the people via their elected government is by definition not "murder", which is an illegal homicide.

You are no more a party to "murder" in a government execution than you are if you kill an intruder in your home who is threatening the lives of your family members.

Posted by: TarlsQtr | Jan 23, 2012 9:32:47 AM

Fry him...I like Rod's method better...

"Inmate who stabbed to death a female prison guard was killed while being taken into custody"

no muss! no fuss!

Posted by: Josh2 | Jan 23, 2012 9:45:23 AM

Erika stated: "I mean, even pointing out the obvious that for someone who has strong moral beliefs against the death penalty, there are no "tough" cases or that if it turns out that the inmate killed the guard to be given the death penalty its not death penalty opponents who have "blood on their hands" seems rather pointless.

especially since rather than even attempting to debate, the armchair death penalty warriors here will just unleash a stream of vile personal insults in an effort to show how tough they are."

Erika,

We have been told countless times how the execution of any innocents will be blood on our hands because we support the DP. Here, YOUR support of LWOP instead of the DP aided and abetted the murder of a CO. By the logic that your side routinely employs, her blood IS on your hands.

The second part of your post saddens me. Why? Because in the relatively short time I have been here, you have been the sole abolitionist that has shown even a smidgen of manners. Yet you want to talk about "vile personal insults?" Your "side", engages in more such insults in one day than DP supporters do in a year. Please spend a dime on an ounce of self-awareness. For heavens sake, just 15 minutes prior to this post you called supporters insecure wimps who need to show "how tough they are."

Get over yourself. Your opinions are no more "valid" or "correct" because you hold them. In fact, that an overwhelming majority of America has disagreed with you since the nation's founding should give you at least a moment of pause.

Posted by: TarlsQtr | Jan 23, 2012 9:47:12 AM

Erika stated: "like war and watching sports, it is pretty safe to say that the death penalty primarily exists to satisfy male insecurity by enabling wimps to pretend that they are tough."

PS You do realize that a majority of women support the DP as well, right? In Connecticut, 62-32.

Are all of these women confused about their gender?

Posted by: TarlsQtr | Jan 23, 2012 9:56:33 AM

Doug,

This is one of the harder questions for abolitionists, although there are numerous answers I won't recite here. I would ask, though, whether you ever use your soapbox to pose any of the numerous "tough questions" for DP supporters in particular cases. For example, take a random robbery-shooting that results in a death sentence in a state where a hundred similar crimes (maybe in different counties, maybe with different races of defendant/victim, maybe with actually competent defense attorneys who make a show of being ready to fight) in the same year aren't even charged capitally? If you really look at what happens in the hundreds of low-profile, under-litigated cases, can anyone realistically argue that the "worst of the worst"/"narrowing"/"proportionality"/non-arbitrariness supposedly required for the DP in fact exists?

When you start asking whether and why the hundreds of pretty clearly unnecessary and/or arbitrary death sentences across the country are justified, I'll start answering whether and why the ones that actually seem like they are/should be justified may not be.

Posted by: Anon | Jan 23, 2012 1:08:43 PM

Most executions aren't for cases of this sort and in the current system in place a proper application of the death penalty only to a few limited "hard cases" will not occur. Instead, many "wrongful" executions will occur as well.

The burden of proof lets some dangerous criminals free. Some might kill people. Does this mean the burden of proof shouldn't be consistently applied? I don't find this convincing. Any number of rules will be applied in ways that in some extraordinary cases will result in problematic results. The rule remains as a whole legitimate.

Where does this take us? Is torture okay to prevent killing of prisoner guards?

Posted by: Joe | Jan 23, 2012 1:15:05 PM

"Instead, many "wrongful" executions will occur as well."
"Is torture okay to prevent killing of prisoner guards?"

No, Joe,
but your logic is tortuous, okay?

Can you ID any "wrongful executions" that come to mind? If you can, one might find that "convincing".

Posted by: Adamakis | Jan 23, 2012 1:49:34 PM

Anon,

"Under-litigated" DP cases? Too funny.

Care to name some of these cases from the last decade or so?

Posted by: TarlsQtr | Jan 23, 2012 1:54:44 PM

Anon,

Ignore my previous post. I just had an epiphany that you were really using "under-litigated" as an euphemism for "not decided in the manner I wanted."

Posted by: TarlsQtr | Jan 23, 2012 1:56:57 PM

Anon --

"When you [Doug Berman] start asking whether and why the hundreds of pretty clearly unnecessary and/or arbitrary death sentences across the country are justified, I'll start answering whether and why the ones that actually seem like they are/should be justified may not be."

Anon, you seem like one of the more serious and thoughtful liberals here. The "answer" you give to Doug does not flatter you.

1. The death penalty being existing law, and with a big majority of public support, the burden of proof, and necessarily the burden of argument, rests with its opponents, not its backers.

2. What's actually going on is that you're assuming your conclusion (that there are "hundreds" of arbitrary death sentences handed down), then illogically appropriating this "fact" as a reason to refuse to answer the questions for abolitionists raised by this case.

If you actually have good and persuasive reasons to believe that the DP is not warranted in THIS case, presumably you'd be willing, indeed eager, to state them. But you refuse pending -- guess what -- Doug's preemptive concession that the DP is unsustainable.

Is that how you think debates get conducted, much less won?

3. What penalty do you suggest for THIS case that is both (1) consistent with the Eighth Amendment, (2) likely to deter LWOP inmates from murder, and (3) proportionate to the offense?

Loss of canteen priviliges? A half hour less in the exercise yard? What?


Posted by: Bill Otis | Jan 23, 2012 2:01:32 PM

Adamakis, I don't know who you want me to "convince," since many around here aren't even convinced when the USSC decides something (see, e.g., federalist thinking them "despicable" from time to time). Courts and others repeatedly have blocked executions as being "wrongful." The idea they caught everyone one is not credible to me. I'm sure this won't impress some around here.

If torture is off the table, I'm unsure why the death penalty cannot be as well. That is, if a person accepts the death penalty is unjust as punishment as a whole. In some limited cases, there simply isn't much more you can do. For instance, as noted, what about those who kill while waiting to be executed? What do you do there? What if the person WANTS to die? Suicide by cop. What if the person who killed the guard is insane? Does the person "struggle" there? Or, is execution legitimate there?

Posted by: Joeoe | Jan 23, 2012 3:05:38 PM

Joe --

Simply because you can't get everything right is hardly a reason to get nothing right.

Posted by: Bill Otis | Jan 23, 2012 3:36:48 PM

That's a nice fortune cookie, Bill, but not sure how useful it is here.

Posted by: Joe | Jan 23, 2012 3:40:21 PM

Joe --

It's useful here as the answer to this point of yours: "If torture is off the table, I'm unsure why the death penalty cannot be as well. That is, if a person accepts the death penalty is unjust as punishment as a whole. In some limited cases, there simply isn't much more you can do. For instance, as noted, what about those who kill while waiting to be executed? What do you do there? What if the person WANTS to die? Suicide by cop. What if the person who killed the guard is insane? Does the person 'struggle' there? Or, is execution legitimate there?"

Your point is, as you say, that in some limited cases, there simply isn't much more you can do. You then give some examples.

Let's assume I agree with your examples. So what? The fact that there are "some limited cases" in which the DP cannot vindicate justice hardly means that it should be abolished always and ever. But that is what abolitionists seek.

To put it another way: The burden is not on supporters to show that there are cases in which, for a variety of reasons, it should not or cannot productively be used; we already know that. The burden is on abolitionists to show that there are ABSOLUTELY NO CASES in which it SHOULD be used. Your examples do not even purport to do that.

Posted by: Bill Otis | Jan 23, 2012 3:53:28 PM

6:40:31 AM: "Dexter the Showtime serial killer kills for all the right reasons. Dexter the government sanctiioned serial killer kills for all the right reasons. Therefore killing is good if done for the right reasons. So maybe the question should be did this inmate think he killed for the right reasons? If so does that mitigate against the DP?"

That is the brutalization effect in a nutshell.

Posted by: George | Jan 23, 2012 4:54:10 PM

George --

"Therefore killing is good if done for the right reasons."

Correct. See, e.g., WWII. Unless you think allowing continuation of the concentration camps would have been neat.

"So maybe the question should be did this inmate think he killed for the right reasons?"

Maybe the question should be whether anyone but a lunatic would believe that killing a guard because she's searching the cell for contraband could be the "right reason."

P.S. If there is a brutalization effect, why have murders gone way down over the last two decades when we've had hundreds and hundreds of executions -- many more than in the two decades before, when the murder rate was going up?

Posted by: Bill Otis | Jan 23, 2012 5:17:39 PM

Mr. Bill: "Correct. See, e.g., WWII. Unless you think allowing continuation of the concentration camps would have been neat."

False analogy. I never argued that someone does not have the right to self defense and do believe the guard could have killed in self defense if possible, with help if necessary. A more on point analogy would be should the guard have the right to kill after this inmate was incapacitated and segregated? Put another way, should we kill Germans today because they had concentration camps then? Care to try a different analogy?

Mr Bill: Maybe the question should be whether anyone but a lunatic would believe that killing a guard because she's searching the cell for contraband could be the "right reason."

Which asks if the brutalization effect is rational or not. I would say it probably isn't but that does not eliminate it. The point is that the DP is not a panacea and like any drug it has its harmful side effects.

Mr. Bill: P.S. If there is a brutalization effect, why have murders gone way down over the last two decades when we've had hundreds and hundreds of executions -- many more than in the two decades before, when the murder rate was going up?

The best answer to that is Stuntz's The Collapse of American Justice. He concentrates on the murder rate as the most reliable reference for the crime rate. There is probably a lot of common ground in his arguments.

Posted by: George | Jan 23, 2012 6:04:40 PM

Isn't Arkansas a death penalty state?

Posted by: C | Jan 23, 2012 7:04:51 PM

George --

"A more on point analogy would be should the guard have the right to kill after this inmate was incapacitated and segregated?"

Nope. In the circumstances you describe, guards don't get to decide. Courts get to decide.

"Put another way, should we kill Germans today because they had concentration camps then?"

Has anyone suggested that? Of course not -- because it's nonsense. We were, however, fully justified in executing some of the German high command, which we did after the war as a result of the Nuremburg trials (which were military tribunals, incidentally). Israel was also more than justified in hanging Eichmann.

"Care to try a different analogy?"

Nope, since the analogy I used was and remains a perfectly apt response. You said, sarcastically, "Therefore killing is good if done for the right reasons." But the sarcasm is complete baloney, as my analogy illustrated -- which is the real reason you don't like it.

Now, just in the event you feel like returning to the case Doug posted about: What penalty do you suggest for Mr. Johnson that is (1) consistent with the Eighth Amendment, (2) likely to deter other LWOP inmates from murder, and (3) proportionate to the offense?

Posted by: Bill Otis | Jan 23, 2012 7:27:07 PM

' What penalty do you suggest for Mr. Johnson that is (1) consistent with the Eighth Amendment, (2) likely to deter other LWOP inmates from murder, and (3) proportionate to the offense?'

Deterence for other LWOPs....surely you jest. If your already serving LWOP do you really think an added sentence of death means anything to someone facing an situation like that? They've already lost their right to life outside. Even if he was originally sentenced to death the first time around a guard in that same situation would still be facing the same potential outcome. So what's the big deterent a death penalty has in the first place, nothing. The hazardous exposure inherent in that occupation are just as likely to happen in any given instance, at any time with any inmate under the same conditions, duh.

Posted by: Duh | Jan 23, 2012 7:58:48 PM

Duh --

The only thing you forgot was to actually answer the question. What punishment do you think he should get for the second murder?

Posted by: Bill Otis | Jan 23, 2012 8:28:13 PM

TarlsQtr: "Because in the relatively short time I have been here, you have been the sole abolitionist that has shown even a smidgen of manners."

me: thank you, I think :)

I really do try to be polite - but I also have always standed up for myself against bullies. There are certain people here, not you, who for some reason - likely because of the a on the end of my name - always seem to go after me in personal terms. Of course, it may also be because I am so complex my opinions on criminal law are so all over the place that over time I probably offend everybody.

TarlsQtr: "Yet you want to talk about "vile personal insults?" Your "side", engages in more such insults in one day than DP supporters do in a year."

me: that is because they are on your side and also because you do not read the sex offender threads where I have been called everything from a "crazy bitch" to a "hate filled lunatic." And of course, it is a prominent death penalty supporter here who in the wake of me proving him wrong about something (specifically what offenses are death penalty elgible under Virginia law) has unleashed such a stream of insults and attacks on me that I am no longer replying to anything he writes. Of course, that person unleashed a steady stream of personal insults against everyone who disagreed him before hand.

And as for the point about armchair toughguys - I'm not going to be like Kurupt and call out names - because its pretty apparent who that description applies to. But really, that is more a reply to the tone of the death penalty threads here than the death penalty itself. On a general news site, I find myself rarely reading articles about murders because I know that the comment section is going to be a steady stream of armchair tough guys saying how they wish they could be the executioners and how they want immediate executions with no trials and who knows what else. It definitely seems to be pretty strong evidence of overcompetensating about something, the equivilent of a sportscar and toupee. But, really, with people in the general public, its not surprising that the comments take on such a tone.

Now this is supposed to be a legal site - most of the people here are supposedly lawyers. Yet, it seems that every death penalty thread here might as well involve Beavis and Butthead in tone because its essentially "The death penalty rules, abolitionists suck." Now, if that was dialoge on a Beavis and Butthead episode, I would laugh because they are cartoon idiots and are supposed to be stupid.

Really, while I oppose the death penalty on personal moral/religious grounds, I find an independent reason in simple disgust at the fact that if Fox Television really broadcast "America's Deadliest Executions," it would be no doubt the highest rated show on television and real life Homer Simpsons would be sitting on their couch saying "ohhh, the chair again. I wanted crucifixion."

erika :)

Posted by: virginia | Jan 24, 2012 6:04:04 AM

Virginia: In the above comment, where is any indication you attended law school?

I want you to utter the V word. You cannot, not even with no one around. You may choke, sputter, pass out if you try. That choking would be conclusive evidence you attended law school.

This is one of many stigmata of bad faith, to use the Dominican Inquisitor vocabulary. The criminal generates massive government make work jobs for lawyers, the victim generates nothing, and may rot. You need to start to disclose your personal economic conflict of interest after each utterance.

And yes, I am using the biggest personal insult, a reprehensible bad word, as personal attack on you. I am calling you a lawyer. I should have my mouth washed out with soap, you would be right to say.

Posted by: Supremacy Claus | Jan 24, 2012 8:56:22 AM

Your clarification suggests your original koan like comment requires discussion and an assumption the death penalty is allowable in certain instances. Even if it is, if the risk of wrongful application (for the sake of argument) is too high, you still would "sometimes" do the right thing by not applying it at all. And, the fact that a few outlier cases such as cited by the lede post will remain is just a matter of no system being perfect.

BTW, naming a trauma unit after Elvis is a bit strange.

Posted by: Joe | Jan 24, 2012 9:11:01 AM

mr. claus, calling me a lawyer, like calling me a bad girl, is a description and not an insult :P

Posted by: virginia | Jan 24, 2012 3:37:28 PM

tim rudisill --

"As to this instance: Having 'served time, I have some concerns about what was actually going on with/between the guard and the inmate. The procedure used with contraband doesn't seem to have been followed."

Therefore he was justified in knifing her to death??!!

Far out.

Do tell us what "procedure" wasn't being followed when Mr. Johnson killed his first victim, and how many chances you propose to give this guy.


Posted by: Bill Otis | Jan 24, 2012 4:25:37 PM

This entry is now two days old, and almost a dozen death penalty opponents have chimed in: jaimekid, anon2.5, pc, Alex, SJS, Erika, Anon, tim rudisill, Joe, George and Duh.

Some of the responses are thoughtful and directed to the topic, e.g., those by SJS and Anon. Some are just snarky, self-involved, superior and/or sarcastic.

They all have this in common: Not one suggests what sentence for this bloody murder, short of the DP, would be (1) proportionate to the crime, (2) likely to have any deterrent value for other LWOP inmates, and (3) consistent with the Eighth Amendment.

The uniform failure/refusal to point to a sentence that would meet these elementary requirements says more than all the words combined. Silence can be more than golden; it can be eduational, and it has been.

Posted by: Bill Otis | Jan 24, 2012 4:44:08 PM

Mr Bill: "Some are just snarky, self-involved, superior and/or sarcastic."

Projection much? Which may be why I didn't reply to your snarky and self-involved twist. The DP did not liberate the concentration camps. They were already liberated so it is still a false analogy.

Posted by: George | Jan 24, 2012 5:36:03 PM

George --

What penalty for this murder, short of the death penalty, would be (1) proportionate to the crime, (2) likely to have any deterrent value for other LWOP inmates, and (3) consistent with the Eighth Amendment?

P.S. I'm sorry if you regard that as snarky, etc., but I would still be interested in your answer.

Posted by: Bill Otis | Jan 24, 2012 7:55:37 PM

Bill, I'm an English teacher in Italy. Since I'm American the topic of the death penalty does come up every now and then during my lessons. My students nearly always express their strong opposition to capital punishment. They think of it as barbaric and just can't understand how Americans could do such a thing.

In response, I often throw out the following scenario: what should the sentence be for a murderer serving a sentence of life imprisonment without the possibility of parole who murders a guard or civilian in prison or in the course of an escape or subsequent to it? In the face of this question, my students inevitably, and mysteriously, wholly lose the ability to speak English or develop a terrible stutter and we move on to something else. Seriously.

Posted by: alpino | Jan 25, 2012 3:22:46 AM

alpino:

Exactly. The law written in the heart--though often seared and stymied--survives though battered by false philosophy.
That is Gen 9:6 : "Whoso sheddeth man's blood, by man shall his blood be shed: for in the image of God made he man."

Quando i pagani, che non hanno la legge, per natura agiscono secondo la legge, essi, pur non avendo legge, sono legge a se stessi; essi dimostrano che quanto la legge esige è scritto nei loro cuori come risulta dalla testimonianza della loro coscienza e dai loro stessi ragionamenti, che ora li accusano ora li difendono.

Posted by: Adamakis | Jan 25, 2012 11:45:29 AM

alpino, others manage just fine, but they have speech therapists for that.

"They all have this in common: Not one suggests what sentence for this bloody murder, short of the DP, would be (1) proportionate to the crime, (2) likely to have any deterrent value for other LWOP inmates, and (3) consistent with the Eighth Amendment."

It is unclear if the DP is "proportionate" to the crime. Many would not think a lethal injection would be 'proportionate' to a brutal murder of a prison guard. Death penalty supporters, however, realize the Constitution and reality limits sentencing. You don't rape rapists. We don't have a purely eye for an eye system here. Both reality and the Constitution also limits possible deterrent value of sentences. I provided examples that even a death penalty supporter would recognize there. There are cases with no easy answers. This is life.

Posted by: Joe | Jan 25, 2012 12:25:37 PM

TarlsQtr: I must disagree with you. Just because one attempts to disguise cold blooded premeditated murder with assorted ceremonies doesn't make it anything other than murder. I fear we must disagree on this.
Mr. Bill Otis: As to which (by Institutional Policy Number) I cannot say. However, that policies do exist for the confiscation of and search for (shake-down) contraband. These I do know to exist - especially with high security/high risk inmates. As you have never been either a guard or inmate (as yet :) ), I would not expect you to be familiar with them. But, they do exist and I have seen nothing to indicate that they were followed.
In regard to the "appropriate punishment": I am a follower, in these matters of Lycurgus and Erasmus. Surely a man of your education will be familiar with their solutions? For those less fortunate: Lycurgus was awarded custody of a man who had tried to kill him and had succeeded in destroying one of his eyes: He educated him as to what he had done to himself and what were his obligations to himself...and "returned him to Sparta fit to serve his country."
Erasmus stated that he would rather treat a sick man than to kill him. But then , he was Erasmus, eh?
No matter how accomplished, murder remains murder. It cannot matter how many agree to it or by what fiction of the masses , or consensus - it remains murder.

Posted by: tim rudisill | Jan 25, 2012 1:23:24 PM

I must ask you all to forgive my tardy responses but I do not have any form of notification nor am I able to access the web as often as I might wish. Thank you for understanding.

Posted by: tim rudisill | Jan 25, 2012 1:35:05 PM

Joe --

"There are cases with no easy answers. This is life."

No one would disagree with that. But adults have to find answers even when it's not easy.

Mr. Johnson is going to get some sentence in this case. What sentence do you think he should get that comports with the core values of deterrence and just punishment?

Posted by: Bill Otis | Jan 25, 2012 3:57:29 PM

tim rudisill --

Let me ask you the same question I asked Joe: Mr. Johnson is going to get some sentence in this case. What sentence do you think he should get that comports with the core values of deterrence and just punishment?

Posted by: Bill Otis | Jan 25, 2012 4:00:04 PM

alpino --

I think some of your students must be putting up comments on this thread. After three days and 60 or so responses, not one abolitionist has said what Mr. Johnson's sentence should be.

Posted by: Bill Otis | Jan 25, 2012 4:03:14 PM

The State of Arkansas cannot be trusted to administer the death penalty. For nearly two decades, Arkansas had Damien Echols on death row for a triple homicide that he obviously had no part in. Although Arkansas has now released Echols, it did not even do that in a candid, straightforward manner. If a State confines innocent people on its death row for decades, the State forfeits any right to maintain the death penalty.

Posted by: Calif. Capital Defense Counsel | Jan 26, 2012 2:35:57 PM

CCDC --

Since your fellow abolitionists refuse to answer the question, let me see if you will.

Mr. Johnson was serving LWOP for a previous premeditated murder when his multiple thrusts with a shank killed a female prison guard. What sentence for the guard's murder, short of the DP, would be (1) proportionate to the crime, (2) likely to have deterrent value for other LWOP inmates, and (3) consistent with the Eighth Amendment.

Obviously a fine is absurd. He can't and won't pay.

Obviously another prison term, no matter what its length is a joke -- he's already in for LWOP.

Obviously torture is off the table. It's inconsistent with the Eighth Amendment.

Obviously loss of canteen and yard privileges is also a joke -- the notion that it's proportionate to the crime is worse than absurd.

What then?

Posted by: Bill Otis | Jan 26, 2012 2:58:21 PM

I believe death is the only proper punishment in such a case. It is indeed funny how none of the abolitionists here want to say what sentence they'd give him.

Posted by: alpino | Jan 26, 2012 3:15:24 PM

i'm sorry but in a case like this!

"Mr. Johnson was serving LWOP for a previous premeditated murder when his multiple thrusts with a shank killed a female prison guard. What sentence for the guard's murder, short of the DP, would be (1) proportionate to the crime, (2) likely to have deterrent value for other LWOP inmates, and (3) consistent with the Eighth Amendment."

Outside of a quick investication to make sure it was not self defense...nothing but Summary Execution will do!

Once you have been convited of killing in socieity and then sent to a secure faciltiy and then KILLED again you have proven ONCE AND FOR ALL TIME you will NEVER change.....GOOD RIDDENCE TO BAD RUBBISH! kill em! and stop wasting limited tax funds. Plus since the other imates are in OUR CUSTORY we have an obligation to PROTECT them. So in a case like this...time to put that RABID wolf down and move on!

Posted by: rodsmith | Jan 27, 2012 1:48:59 AM

I don't know anything about the case other than the information I've heard in a few media accounts.

A trial would be necessary to evaluate the proper punishment.

Are there any mitigating circumstances in this case? Is the accused sane? Did he actually do the deed?

I'll never serve on a capital jury, because I would be unwilling/unable to return a death verdict in any case.

In my opinion, administration of the death penalty entails torture. Accordingly, administration of the death penalty is constitutionally prohibited in all circumstances.

Posted by: Calif. Capital Defense Counsel | Jan 27, 2012 5:27:28 PM

hmm

"A trial would be necessary to evaluate the proper punishment."


trial NOPE like i said a quick investigation to make sure there was no possible claim of self defense. Other than that..there is NO reason for this!

as for this statement!

"Are there any mitigating circumstances in this case? Is the accused sane? Did he actually do the deed?"

doesn't matter if he's sane or not. if he's insane then since i'm assuming he went throught eval when being locked up you would be saying prison made him insane! but it still does't matter. he's still proved himself to be a rabid animal who will kill. BYE-BYE!

NOW the last part "did he actualy do the deed?" is a good question but considering the attack was MULTIPLE STAB WOUNDS i'm gonna guess he'd be COVERED IN BLOOD! So was probably caught RED HANDED.

again we come back to BYE-BYE!

Posted by: rodsmith | Jan 27, 2012 6:11:50 PM

CDC may be the first abolitionist here to have sort of kind of answered the question. He/she said she wouldn't give such a person (or anyone under any circumstances) a death sentence. Therefore, I believe CDC is opining (although he/she still can't quite bring himself/herself to come out and say it in black and white) that a life sentence would be appropriate even if he is guilty beyond all doubt, lacks mitigating circumstances and is 100% sane. Thus, CDC would allow such a person what amounts to an unpunished murder and, if he did it again, or got confederates to do it, another free murder and then another and another and so on and so on and so on...

Posted by: alpino | Jan 28, 2012 3:53:30 AM

alpino --

I respectfully disagree. I do not think CCDC said or even implied what sentence Mr. Johnson should get. He said only what sentence Johnson should NOT get (the DP). But since CCDC is an abbie, we already knew that.

The point of asking the abbies to give specifics of what sentence Johnson SHOULD get is to make them come face to face with what they know but (as we have seen) refuse to admit: That ONLY sentence meeting the baseline requirements of sentencing (just punishment, deterrence and consistency with the Eighth Amendment) is the death penalty.

Posted by: Bill Otis | Jan 28, 2012 2:09:50 PM

Imposition of the death penalty is not consistent with the 8th Amendment. Quite to the contrary. It violates the 8th Amendment. It is certainly cruel to take the life of a defenseless human being who is strapped down to a gurney. And, there can be no real dispute that the arbitrary, haphazard, uneven manner in which the penalty is meted out in this country is unusual.

Posted by: Calif. Capital Defense Counsel | Jan 29, 2012 11:03:13 AM

CCDC --

1. Do you have even a clue as to how far into outer space you are? The Supreme Court has heard over and over the arguments you make, and has rejected them. Do you really think you can wipe Gregg and Baze off the map simply by stomping your defense lawyer foot? Do you try that stuff in court?

Indeed, even if every Justice in the nation's history who has concluded the DP per se violates the Eighth Amendment were currently sitting, YOU'D STILL LOSE.

2. In what I'm pretty sure will be a vain attempt to ask you to quit dodging and give an answer, let's go through this again.

Let us assume what is likely to be the case here: The accused is found at a trial to have done the deed, to be sane, and to have had no credible mitigating circumstances (no, the fact that he has a mother is not a mitigating circumstance).

In that setting, what sentence, other than the death penalty, would meet the baseline requirements of criminal punishment that it be proportionate to the crime, provide effective deterrence, and comport with (what the Supreme Court, not you, has determined to be the demands of) the Eighth Amendment?

What sentence should he get? Quit dodging -- out with it.

Posted by: Bill Otis | Jan 29, 2012 2:20:23 PM

When the State carries out the death penalty, the State and the state actors it enlists commit a murder. It is wrong. The death penalty is always wrong. It is immoral.

But, putting aside the morality issue, how much would you be willing to pay per execution? If it costs a State $ 3 trillion to carry out a single execution, would you find that cost acceptable?

Posted by: Calif. Capital Defense Counsel | Jan 30, 2012 8:42:32 PM

CCDC --

How odd that you expect me to answer your question when for several days you have refused to mine. When I get your answer -- in specifics -- you'll get mine, in specifics.

Posted by: Bill Otis | Jan 30, 2012 10:26:46 PM

How can I possibly answer the question of what punishment this guy should receive? I don't know whether he is guilty. I don't know whether he was sane. I don't know any details about the relevant circumstances. I don't know whether, during his formative years, you posed as his mother, gave him candy, lured him into a van, etc.

Before the question of punishment for this guy is addressed, due process needs to take place. There are some pesky Amendments in the U.S. Constitution that need to be complied with before he is hustled off to the death chamber.

I have already told you, I oppose the death penalty.

The fact that you don't like my answer doesn't mean that I haven't answered your question. It just means that you don't like my answer.

Now, how much is the maximum you would be willing to have the taxpayers pay for an execution? $5 million, $7.5 million, $100 million, $1 billion, $33 billion, $6 trillion? Would you be willing to wreck the entire economy of a state in order to have an execution carried out?

Posted by: Calif. Capital Defense Counsel | Jan 31, 2012 5:35:54 PM

CCDC--

"How can I possibly answer the question of what punishment this guy should receive?"

By going to your keyboard.

"I don't know whether he is guilty. I don't know whether he was sane. I don't know any details about the relevant circumstances..."

But the question I asked does not require you to know any of that. This was the question: "Let us assume what is likely to be the case here: The accused is found at a trial to have done the deed, to be sane, and to have had no credible mitigating circumstances (no, the fact that he has a mother is not a mitigating circumstance).

"In that setting, what sentence, other than the death penalty, would meet the baseline requirements of criminal punishment that it be proportionate to the crime, provide effective deterrence, and comport with (what the Supreme Court, not you, has determined to be the demands of) the Eighth Amendment?"

Don't hand me this notion that you won't answer hypotehticals. Law students and lawyers have to answer hypotheticals all the time. It's a sure thing that, if your practice is what you've said it is, you've answered them at least 1000 times, probably more like 10,000.

The reason you won't answer here is that you don't have an answer. Instead, you write this: "I don't know whether, during his formative years, you posed as his mother, gave him candy, lured him into a van, etc."

And that is where I get off the train. You gutter-trolling hoodlums have previously called me a pedophile (and a necrophiliac), and you want to carry on with it.

Don't think so.

Someone with an ounce of decency would apologize. On the other hand, someone with an ounce of decency wouldn't have said such a thing to start with.

Posted by: Bill Otis | Feb 2, 2012 10:00:04 PM

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